| Ill. | Jun 15, 1876
delivered the opinion of the Court:
A majority of the court are of opinion that the decree should be affirmed.
There can be hut little doubt that the complainant was, in fact, induced to execute and acknowledge this mortgage against her own will, by undue influence exerted by her husband, amounting, in substance, to coercion. A majority of the court, however, after a very careful consideration of the proofs, are of the opinion that the evidence does not show that Paine, the grantee, was in any way a party to the wrong done to Mrs. Ladew, by the conduct of her husband. The certificate of the officer taking the acknowledgment, shows that she professed to execute the mortgage of her own free will. The testimony of Paine and of Mr. Thorn (the notary public) is, that she signed and acknowledged the mortgage in the presence of Paine and the officer, and that she professed to act freely and without restraint, and did not, at that time, in any manner, indicate that she had objections of any kind to the giving of the mortgage. She knew that Paine, in accepting this mortgage upon the hotel, was surrendering a valid chattel mortgage, which was a good and adequate security. It was her duty, then, to have notified Paine, in some way, of her unwillingness to execute the mortgage in question. Having failed to do so, and having permitted (as a majority of the court think, from the evidence,) Paine to act upon the faith that she did execute the mortgage of her own free will, she can not now be allowed to insist upon this defense as against him.
The decree of the circuit court is, therefore, affirmed.
Decree affirmed.
The writer of this opinion can not concur with his brethren as to one very material fact in the case. He thinks the proofs show, satisfactorily, that Paine had full notice of the improper and undue control of the husband of the complainant over her in this matter, and that he had good reason to believe, and did believe, at the time when the mortgage was signed and acknowledged by the complainant, that it was not the act of her own free will.
He also thinks that the proof shows that the act of Mrs. Ladew, in acknowledging the mortgage, was induced by the then present fear of her husband’s displeasure, and that to such a degree, that it was not of her own will, and should not be regarded as her act at all, and, hence, that she ought not to be estopped thereby. As this difference of opinion relates merely to questions of fact, confined, in their influence, to this case alone, it is not perceived that any good can be accomplished by a discussion of the evidence in detail.