J. M. Robinson, Norton & Co. v. Randall

147 Ky. 45 | Ky. Ct. App. | 1912

Opinion op the Court by

Chiep Justice Hobson—

Reversing.

Francis A. Randall being indebted to tbe J. M. Robinson, Norton & Company in the sum of $1,000, on July 13,1909, executed to it twenty notes for $50 each, payable monthly. She owned a life estate in a bouse and lot in Louisville, ber son, T. Roy Sale owning tbe remainder. Sbe, ber son and bis wife, also executed a mortgage to secure tbe notes. Tbis suit was brought by J. M. Robinson, Norton & Company against them to subject tbe property to tbe debt. Mrs. Randall answered pleading that sbe was a married woman at tbe time tbe mortgage was given and that ber husband did not join ber in tbe deed. Tbe plaintiff replied that sbe represented herself to be a widow, and that tbe plaintiff bad trusted ber and accepted tbe mortgage on tbe faith of ber representation that sbe was a widow. Tbis was denied by a reply. Tbe son and bis wife filed an answer in which they pleaded that me mortgage was obtained from them by fraud and duress. No reply was filed to tbis answer; proof was taken and on final bearing the circuit court dismissed tbe petition in so far as it sought to subject tbe property to tbe debt. The plaintiff appeals.

Tbe weight of tbe evidence does not show that Mrs. Randall misled J. M. Robinson, Norton & Company as to being an unmarried woman. She and ber husband were married twenty years before. They both lived in Louisville and while they had been separated for six years, tbe officer of tbe J. M. Robinson, Norton Company who took the mortgage according to her evidence well knew that sbe was a married woman, and bad often talked to ber about ber husband. Tbe mortgage was given simply to secure a pre-existing debt, and we do not find from tbe evidence as a whole that sbe made any misrepresentations to or in any way mislead J. M. Robinson, Norton & Company as to being unmarried. It is true tbe deed uses tbe word “widow” after ber name in tbe caption, but tbis is not sufficient to estop ber from showing that sbe was a married woman. Tbe judgment of tbe chancellor on ber branch of tbe case is affirmed.

Tbe correctness of tbe judgment on tbe other branch of the case depends on tbe sufficiency of tbe answer filed by T. Roy Sale, and bis wife. There having been no reply filed to tbe answer it must be taken as true, and if its allegations are sufficient to constitute a defense to tbe action, tbe judgment dismissing the petition as to them is right. The answer so far as material is as follows:

“Now comes the defendants, T. Roy Sale and Nettie Sale, and by leave of court * * * say that they and each of them signed the mortgage set up and sought to be enforced in plaintiff’s petition, under and by reason of force, duress and fraud. That they did not understand fully the provisions of the said instrument, and they did not consent thereto. That their co-defendant, Francis A. Randall, secured their signatures, and each of them, to the said instrument by the use of force and duress. That the plaintiff, J. M. Robinson, Norton Company, through its officers and representatives,, stated and represented to the defendant, Nettie Sale, that said mortgage would not be put to record, or enforced against her unless she further gave her consent in writing thereto. These statements and representations were made to her immediately after the execution of said instrument, and in answer to her protest against the recording and the holding of the same by the plaintiff, J. M. Robinson, Norton & Company.”

It will be observed that the defendants do not deny that they signed and delivered the deed of mortgage as alleged in the petition, and that while they alleged that they signed it under and by reason of force and duress and fraud, they do not allege that this force, duress or fraud was on the part of the plaintiff. The next sentences show that the force, duress and fraud was on the part of their co-defendant, .Francis A. Randall. The rule is that a mortgage is not invalidated by force or duress exercised by one of the mortgagors upon another, not participated in by the mortgagee. Pribble v. Hall, 76 Ky., 61; Davis v. Jenkins, 93 Ky., 353; Tackitt v. Tackitt, 127 S. W., 987.) The only charge made against the plaintiff is that it stated and represented to the defendant, Nettie Sale, that the mortgage would not be put to record or enforced against her unless she further gave her consent in writing thereto, and that this statement was made to her immediately after the execution of the instrument, and in answer to her protest against the recording and holding of it by J. M. Robinson, Norton & Company. In other words, it is admitted by the answer that the parties signed and delivered the writing, but it is alleged that there was an agreement immediately thereafter made with Mrs. Nettie Sale that the paper would not be put to record or enforced unless she further gave her consent in writing thereto. If this agreement was made after the delivery of the writing and after the contract was closed, no consideration for it is shown. If it was made at the time of the delivery of the instrument, the sum of the matter is that the instrument was delivered in escrow to the plaintiff and was to be held by the plaintiff upon the condition stated. But the rule is well settled that an instrument can not be delivered as an escrow to the plaintiff. The delivery must be to a third person. We had practically the same question before us in Farmers’ Bank v. Wickliffe, 131 Ky., 789; Case Threshing Machine Co. v. Barnes, 133 Ky., 321. To uphold such parol agreements made at the time of delivery of a written instrument would be to allow the effect of the instrument to be destroyed by parol evidence. We, therefore, conclude that the answer states no defense to the action, and that the circuit court erred in dismissing the petition as to T. Roy Sale and wife.

The judgment as to them is reversed and cause remanded for a judgment subjecting their interest in the property to the debt, and for further proceedings consistent herewith.