Fry v. Piersol
66 S.W. 171
Mo.
1902
Check Treatment
VALLIANT, J.

This is a suit in equity to enjoin a sale of land under a deed of trust on the ground that the deed was executed under duress.

The substantial averments of the petition are to the effect that in February, 1893, the plaintiff executed two notes to defendant Piersol, one for $600, and the other for $1,600, due, respectively, August 1, 1893, and July 1, 1894, and at the same time executed a chattel mortgage on certain cattle on his farm in Morgan county to secure the same; that the understanding between thé parties was that-when the plaintiff paid the $600 note, the principal part of the cattle should be released from the mortgage and the plaintiff be free to sell the same, but by mistake or fraudulent design of defendant Piersol, the stipulation in the mortgage provided for the release of a small part of the mortgaged property, the plaintiff being unable to read and not knowing that the mortgage was so written; that plaintiff paid the $600 note when it came due and after that sold nearly all the mortgaged cattle; that in February, 1895, defendant Piersol told the plaintiff that he had *433committed a criminal act in selling the cattle and that unless he gave him a deed of trust on the land in question he would prosecute him and send him to the penitentiary; that plaintiff, though knowing that he was not guilty of the crime charged, was intimidated by the threat of defendant and executed the deed of trust in question, which is a second mortgage on the land; that at the date of filing this suit the trustee named in the deed had advertised the land for sale under the deed of trust, the sale to occur March 7, 1898; that defendant was insolvent and plaintiff was without remedy at law, and therefore prayed an injunction to prevent a sale of the land according to the terms of the deed. On the filing of the petition, a temporary injunction issued by order of the judge in vacation. Defendants answered denying the allegations of fraud and duress, and filed a motion to dissolve the injunction. The motion came on for hearing at the April term, 1898, upon the pleadings and evidence adduced, and after due deliberation the court sustained the motion and the injunction was dissolved. The plaintiff appeals from that judgment.

I. The plaintiff was not entitled to a temporary injunction on the face of his petition. The petition shows that the plaintiff owes the debt to secure which the deed of trust was given, yet makes no offer to pay it, and shows no reason or excuse for not doing so. He asks a court of equity to relieve him from what he claims to be an unlawful burden, but shows no disposition to do what right and equity require that he should do. Bell v. Campbell, 123 Mo. 1, and Hensinger v. Dyer, 147 Mo. 219, are no authority for the proposition that a court of equity will aid a man under such circumstances to avoid the payment of an honest debt. This court has never so held, nor do any of the authorities, in the long list.cited in the brief of the learned counsel for appellant, give countenance to such doctrine. Those authorities hold in the main that a plea of duress under the circumstances set out in the petition is a good *434defense in a suit at law on such an obligation, and that where a wife or relative, who is not the debtor, is induced by such threats to mortgage her property to save her husband or relation from criminal prosecution, equity will interfere, and of course, also, if a man is forced to execute a note or mortgage for a pretended debt he does not owe, equity will come to his relief. But the plaintiff’s petition does not bring his case in either of those categories.

II. Upon the trial, the plaintiff’s proof failed to sustain .any of the disputed allegations of his petition.

The statement that the chattel mortgage was given to secure the payment of two notes, $600 and $1,600, with the understanding that when less than one-third of the debt was paid the mortgage as to more than one-half the property was to be released, was the statement of a very unusual transaction from a business standpoint, and would require strong proof to sustain it.

The burden was also on the plaintiff to show by a preponderance of evidence that he executed the deed of trust to escape criminal prosecution. On the witness stand he testified that he could not read, but it was clear from his testimony that he was a man of intelligence and shrewd in business affairs. The transaction in evidence showed that he knew what he was about, and was perfectly able to take care of himself. Whilst he testified that he was threatened with prosecution, no one else so testified, and his testimony on that point was borne down by that on the part of defendants. He testified, and so did the justice of the peace who took the acknowledgment, that when the deed of trust was executed it was not read over to him and his wife, but he also testified that he knew what the deed contained.

It also appeared from the evidence that in 1895 or 1896, the debt being due and the conditions of the deed being broken on the plaintiff’s part, the trustee advertised the property for sale under the terms of the deed and that tlieir the *435plaintiff asked further indulgence, and in order to obtain it made a payment to defendants of $100 on the note and paid the costs of advertising and the sale was stopped. Nothing more was paid, but the defendants waited until February, 1898, and again advertised the property for sale when the proceedings were arrested by the injunction in this suit.

The testimony fully justified the chancellor in finding the issues for the defendants and dissolving the injunction. The judgment is therefore affirmed.

All concur.