194 P. 160 | Mont. | 1920
delivered the opinion of. the court.
This action was brought on July 21, 1916, to foreclose a mortgage upon a lot situate in Great Falls, Cascade county, belonging to the defendant. The mortgage was given to secure the payment of two promissory notes executed by defendant to plaintiff on October 31, 1913, due and payable, respectively, on December 1, 1913, and November 1, 1914, with interest at eight per cent per annum, together with attorney’s fees in' case it should become necessary to bring action of
In her answer defendant seeks affirmative relief by way of counterclaim, demanding cancellation of the notes and mortgage on the ground that they were obtained by fraud, undue influence and without consideration. The allegations of the answer, in so far as they are material, are substantially the following: That defendant is the widow of Stephen A. Douglas Anderson, deceased, who in his lifetime was indebted to plaintiff;' that she is the executrix of his will; that the estate is insolvent; that one Weston Houghton and one G. A. McFarlane, plaintiff’s authorized agents and representatives, on or about October 31, 1913, demanded of defendant that she execute to plaintiff the notes described in the complaint and the mortgage to secure them, in settlement of the indebtedness of the deceased; that she,was not personally liable for any of the debts of the deceased; that to induce her to execute the notes and mortgage, plaintiff’s said agents falsely and fraudulently represented to her that she was personally liable for the indebtedness due from the deceased to the plaintiff; that unless she should execute and deliver the notes and mortgage the plaintiff would enforce the payment of the indebtedness against her, and would seize and sell her separate property to satisfy it; that these representations were each and all of them false and fraudulent, as plaintiff’s agents well knew, and that they were made for the purpose of defrauding defendant; that she endeavored to consult her attorney and ascertain whether the representations were true; that on said day her attorney was absent from his office in Lewistown, Fergus county, Montana, where she resides, and that she was not able to consult him; that the said agents did then and there represent to her that it was not necessary for her to consult an attorney; that they were men of large business affairs; that defendant was wholly unused to transacting business; that at that time she had been recently bereaved by the death of her husband; that she was in an overwrought, abnormal and depressed condition of mind because of the death of her husband,
The court found the facts to be as alleged in the counterclaim, and concluded that the notes and mortgage were void for the reasons: (1) That the defendant was induced to execute them by reason of the false and fraudulent representations of plaintiff’s agents; (2) that the plaintiff’s agents secured the execution of them by means of undue influence exerted over the defendant; and (3) that she, not theretofore being indebted to the plaintiff, received no consideration for them whatever. Accordingly it rendered judgment, directing the plaintiff to cancel the notes and to satisfy the mortgage of record. Plaintiff has appealed from the judgment, and presents the question whether the findings and decision are justified by the evidence.
At the time of his death, on September 4, 1917, Anderson was indebted to the plaintiff, evidenced by promissory notes, for the purchase price of a traction engine, to secure which he had executed upon' it to plaintiff a chattel mortgage. This had been renewed from time to time up to July 1, 1913. It had been overdue since that time. By his will, Anderson bequeathed to defendant the residue of his estate after the debts had been paid, and conferred upon her “full and unlimited power to sell, convey, transfer and dispose of any or all of the property * * * for the purpose of paying my debts
“They came in and said they came to get some settlement for this engine. * * # I told them I had nothing to pay them, and they could make some arrangement to take the engine back for what there was against it. He [McFarlane] said no, they wouldn’t do that, they wanted some kind of security, but they didn’t want no engine back. They wasn’t in that line of business—they had engines to sell. They kept talking for quite a while. They said they would take security on a piece of land that I had. I told them that it was mortgaged before. They said they would be willing to take a second mortgage on that,' and I told them I didn’t want no more mortgages on it, and I would rather they would make arrangements, and I thought I could get permission from the court to turn the engine back to them for the amount that was due. I told them I didn’t like to mortgage anything that I thought was my own property, and they said if I didn’t give them some kind of security, they would foreclose on the.mortgage and take enough other property to cover the expenses and everything concerning it. They mentioned my husband’s homestead and desert. Q. You say they said if you did not give them a mortgage on something that they would foreclose on the engine? A. Yes, sir. Q. And then take enough other property to pay the balance? A. Yes. Q. Mentioning especially the homestead? A. Yes. The homestead and the desert— and other property to cover the amount there was to pay what was against the engine. They sat there an hour and a half, or something like that. I don’t remember exactly. He [Mc-Farlane] said he w'as in a hurry to get back, he wanted a set-'*624 tlement and wanted to go back to Billings that afternoon, and he wanted to know what I was going to do. He said, ‘You can study about it,’ and he went downtown and they called me up in the afternoon and wanted to know what I was going to do. In the meantime, before he left, I said I wouldn’t give him the mortgage on the land, but I had a lot in Great Falls, and if I had to give a mortgage on anything, I would rather give them security on that. He didn’t like to take that because he said it wasn’t worth very much, it wasn’t big enough security. Then they called me up later in the afternoon and wanted to know what I was going to do, and I said, ‘If I have got to, I suppose I have to rather than to have any trouble in foreclosing.’ He came back, and had the mortgages all made out, and the notes, and I signed them. That was in the afternoon of the same day. I don’t remember the exact hour. Q. Did you believe at the time that you signed this mortgage and these notes that if you did not sign them the EmersonBrantingham Implement Company would foreclose that old mortgage on the engine? A. I surely did, or I would not have signed it. Q. Did you believe if you didn’t sign this mortgage and these notes that the plaintiff corporation would have taken your husband’s homestead away from him [you] ? A. I believe it might be they could. I didn’t know the law, and he said the way my husband made his will he gave me the right to pay up the debts without any permission of the court or advice of any attorney. Said he didn’t see' why I needed the advice of anybody to look after the business myself. He said, ‘I am an attorney myself, and I can’t see why you need the advice of anybody; you look to me like a woman who is capable of taking care of your own business,’ and when he said he was an attorney and seemed like—I thought he wouldn’t be wanting to take everything away from a woman and a child. * * * Q. Had you, in the meantime between the first and second visits, had you attempted to get any advice in the matter as to whether you would sign the mortgage? A. Yes, I called you [one of her counsel] up, and you wasn’t at home or in your office. Q. So you actually signed these' papers without any advice from anybody except Mr. MeFarlane? A.*625 Yes, sir. * * * Q. What was the condition of your mind at that time? A. Well, its pretty hal’d to explain with words. I was very worked up, upset about his death; I had so much trouble. Q. Had you ever attended to the business affairs of the family during your husband’s lifetime? A. No, sir; not of that kind. Q. Who attended to them? A. Mr. Anderson attended to the business. Q. Plow much experience had you had in business matters at that time? A. None at all at that time. Q. What, if anything, did Mr. McFarlane say as to your right to dispose of your husband’s property, or exercise dominion over it? A. Well, he seemed to think that I could dispose of it as I pleased, with his property—after he gave his will in that way—I could pay up the bills, and the balance would be for myself. * * * Q. You stated a while ago that Mr. McFarlane stated that he was a lawyer? A. Yes, he said,.‘I am an attorney myself, but I can’t see why you need any permission or advice from any court, and you can go ahead and attend to his business without it.’ That he thought—he threw the bouquet at me—that he thought I was a woman capable of looking after my own business, but he says, ‘You can ask your' attorney if you want to.’ ” In another part of her testimony she stated that she had found the indebtedness of the estate greater than she had anticipated, and that she did not think there was sufficient property to pay it.
The result of the negotiations was that the defendant renewed the chattel mortgage upon the engine, and in addition executed the mortgage and notes in controversy. McFarlane was dead at the time of the trial. Houghton was called as a witness, and testified in relation to the transaction, but his account did not differ materially from that of defendant, except that he testified that McFarlane told her that if she did not furnish the desired security the plaintiff would foreclose the old mortgage on the engine and take judgment for any deficiency which might remain unsatisfied.
The mortgage obligated the defendant, among other things, to pay all taxes assessed, or to be assessed, against the prop
Upon an analysis of the account of the transaction- as given by the defendant herself, without regard to the testimony of Houghton, we are of the opinion that under the rules of law applicable it furnishes no substantial basis for any-of the conclusions reached by the trial court.
As to the alleged fraudulent representations: To make a case
It is apparent from the testimony of the defendant that McFarlane acted as exclusive spokesman for the plaintiff. The representations made by him may be epitomized in brief as follows: (1) That if defendant did not give the plaintiff some
Whatever opinion one would be justified in entertaining as to the method pursued by McFarlane from an ethical point of view, the representations made by him, taken together with all the attendant circumstances, do not warrant the conclusion that he defrauded defendant. The first representation was merely the statement of an intention, and not the affirmation of a fact. Though the term covered by the mortgage had expired at the time the new mortgage and notes were executed, and, had Anderson been living, it would have been open to assault by any one of his creditors, yet, as between him and the plaintiff, the latter would have had the right to foreclose it in the absence of a statutory provision 'to the contrary. There is no such provision in this state, and therefore the life of the lien created by it continued until the debt secured by it became barred by the statute of limitations. (Jones on Mortgages, 5th ed., sec. 771.) The accident of Anderson’s death did not destroy the lien. The defendant, by becoming executrix of his estate, was merely substituted in his place as his representative. Under other provisions of the Code applicable, the plaintiff had the option either to proceed to foreclose after presenting his claim (the notes) to defendant for allowance (Rev. Codes, sec. 7525), or, if it did not desire to do this, it could have proceeded to foreclose, without the right, however, of presenting a claim against the estate for any balance remaining due after foreclosure. (Rev. Codes, see. 7532.) Though McFarlane must have known that it could not carry out in its entirety the intention so expressed by him, this,
As to undue influence: Under the statute, undue influence
The presumption referred to by Mr. Pomeroy arises only when it is shown that antecedent relations between the parties in fact existed. When the presumption does arise, the burden shifts to the adverse party to repel it by showing that the negotiations resulting in the contract were conducted at arm’s-length, uninfluenced by the superior position held by him. The
Bearing in mind these general principles, let us examine the
As to the consideration: Consideration is “any benefit conferred or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, for any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor * * # .” (Rev. Codes, sec. 5001.)
It is not necessary to cite any authority to support the conclusion that the forbearance accorded to the defendant under the
The cause is remanded to the district court, with direction to set aside the findings and judgment in favor of defendant, and to make findings in favor of plaintiff and render judgment accordingly.
Remanded with directions.