| Kan. Ct. App. | Aug 6, 1895
The opinion of the court was delivered by
This is a suit on a note and mortgage. The plaintiffs below, Ryder, Shane & Hyman, in their petition, allege that on the 20th day of January, 1890, Hannah Lee, at Louisburg, Kas., made her certain promissory note of that date and delivered it. to Joseph Johnson, and thereby promised to pay to the said Joseph Johnson the sum of $193.25 in monthly installments of $10 each month, on the 20th day of each month, beginning the 20th day of February, with interest at the rate of 10 per cent, per annum until paid, and for the purpose of securing the payment of the money in said note at the times therein specified, executed and delivered to Joseph Johnson a mortgage deed, bearing date of January 20, 1890, and thereby granted, conveyed and mortgaged to said Johnson, his heirs and assigns, the undivided one-half of the northeast fractional quarter of section 1, township 16, range 24, containing 179-/¶-°„- acres, in Miami
The defense to the plaintiffs’ action below was that the note and mortgage sued upon were executed by Hannah Lee to Joseph Johnson, who was the agent and attorney for Ryder, Shane & Hyman, and the note and mortgage were simply taken in the name of Johnson, in trust for his clients, and that no valuable or good consideration was given for the note and mortgage, and that the note and mortgage were absolutely void. Whether there was any consideration for this note and mortgage, and whether the same were procured by fraud and through fear produced by the threats of Johnson, were the main questions to be tried, and, if there was any evidence tending to prove these facts, the question should have been submitted to the jury. (Simpson v. Kimberlin, 12 Kan. 579" court="Kan." date_filed="1874-01-15" href="https://app.midpage.ai/document/simpson-v-kimberlin-7883702?utm_source=webapp" opinion_id="7883702">12 Kas. 579 ; Jansen v. City of Atchison, 16 id. 358 ; Railroad Co. v. Dryden, 17 id. 278 ; Railway Co. v. Couse, 17 id. 571;
“On the 20th day of January, 1890, when I came home, I came through the kitchen ; and when I went in there they told me that the lawyer was there — Mr. Johnson, of Kansas City — and I went to the door and heard him say to Mrs. Lee, 'You have got to fix this up, either money or mortgage, or I will penitentiary you and your whole family.'''
Mrs. Ella Pratt, daughter of the defendant, testified as follows :
“I heard the conversation between Joseph Johnson*299 and defendant on January 19, 1890. He came down there, and wanted her to give him a mortgage on the farm, and she told him she was n’t able to do it, and told him to go away and let her alone ; and he came up to her and shoolc his finger at her, and said, ‘You will settle this; ’ and this is all I heard on Sunday, and I left the room. I was present the next day, on Monday. He came down there, and mother was very sick with la grippe. He said he was down there on the same business he was there on Sunday, and he said he had papers from the governor of Kansas to take her to Kansas City if she did n’t settle that debt by money or mortgage, and that the papers would cost her $400.”
Sally Lee, daughter of the defendant, testified as follows :
‘‘I remember Mr. Johnson coming to-mother’s on Sunday, the 19th of January, 1890. Didn’t hear the conversation between them. I heard the conversation between them on Monday, the 20th. He said he came down there for the same purpose that he did on yesterday. He says, ‘ Now you have to settle this business.’ He says, ‘ I have got papers from the governor to take you back to Kansas City, and put you in jail, and hold you there until the day of trial, and penitentiary you and the whole outfit, if you do n’t settle this business.’ He patted his pocket, and says, ‘ I have the papers in my pocket.’ ”
David Patten testified, that on the 19th and 20th of January, 1890, he was boarding at the house of Hannah Lee ; that he heard the conversation between Johnson and Mrs. Lee on Monday, the 20th of January.
“Mr. Johnson came there and says, ‘I came to see you in regard to the same business I was here on yesterday.’ He says, ‘I do n’t like the way of the business, and if you do n’t settle this, I have got papers from the governor of the state of Kansas to take you back to Missouri for trial;’ and he said, ‘that
Hannah Lee testified in her own behalf, and said :
“1 reside in Miami county, Kansas ; northeast part of the county. Have resided there 15 years; am a widow, and have three children. I have a half interest in the farm of 160 acres ; live on the farm ; met Mr. Johnson at my residence on Sunday, the 19th of January, 1890. I suppose he came in on the noon train ; he stayed there about l-J- or 2 hours ; I was very sick with la grippe; had been in bed one week, and was confined to my bed two weeks afterward. He sat down right by my bed and talked to me ;• he came there and introduced himself to me as Mr. Johnson, of Kansas City, a lawyer; he said he came down there to see George W. Lee about some furniture he got; I told him he wasn’t at home, and he wanted to know if he didn’t have $80 ; I told him ‘ No, sir.’ He said : 'If he hasn’t got nothing to pay this,’ he said ' I have.’ ' I can’t,’ I says ; ' I cannot; my little home has two mortgages on now.’ He says: 'I will have to take the third one; nobody will ever know the difference.’ I says : 'No, sir, I will not; ’ and I said, ‘ Go away, and let me alone; I am a sick woman; ’ and he stood there and shook his finger at me, and says, ‘ If he has n’t got nothing, you have got to settle.’ That was the conversation on Sunday. That is all that I recollect of the conversation, for I was very sick. On Monday he returned. I suppose he came on the noon train. And he came in, and come in my room, and he says : 'Now, madam, I am back here on the same business I was here on yesterday, and you have got to settle.’ I says, ‘I will not; ’ he says, 'You shall; ’ and I says, ' I won’t; ’ and he says, 'Watch out, old lady, how you talk; I will show you.’ He says, 'I have got papers right here from the governor of Kansas to arrest you, and hold you until I get an officer and take you back to Kansas City, and put you in prison and keep you there until the day of trial, and then I will penitentiary you and your whole family; ’ and then went*301 on, and wanted to know if I would not be ashamed of myself and family to go to the penitentiary. I said : ‘ George Lee’s business and my business is just as separate as strangers.’ He says, ‘That don’t make any difference ; he is your son, and you have got it to pay. You have got to give me the money, or a mortgage, or go to the penitentiary.’ He said he would send the whole family to the penitentiary. He went on all afternoon with threats ; different threats. He did n’t use very nice language with me ; most of his talk was threats. I got up out of my bed and went into the kitchen and stayed in there a little while, and by this time Mr. Crossan came and went to the room, and as Mr. Crossan came in he met him at the door, pulled out some papers from his pocket and says, ‘ Mr. Crossan, I have got her scared up in a hell of a shape; ’ and Mr. Crossan was very cold, as it was very cold weather, and he went to the stove and warmed himself ; and by this time supper was ready, and they went into supper, and after that the business toolc place, but I could n’t state how it was done. I was in a very critical condition; very sick. Then, after the papers were fixed up, Mr. Crossan says, ‘If you have any papers, turn them over to Mrs. Lee.’ ”
Fanny A. Walker testified :
“I accompanied Mr. Johnson from Kansas City to Mrs. Hannah Lee’s house, and on the way down he said if she did n’t pay it, he would penitentiary her and the whole clique. He said he had the power to take them right from there to Kansas City, and he was going to take them. On the way back to the depot, Mi'. Joseph Johnson says, ‘ Did n’t I have the old woman scared?’ He says, ‘I knew I would bring her to time.’ ”
W. B. Crossan was also examined as a witness, and in his examination it was developed that he was an attorney acting for Ryder, Shane & Hyman, and had been to see George W. Lee about the claim these parties held against him. His testimony, so far as it re
The defense proved that the claim that Johnson was seeking to collect was one against George W. Lee, a married son of Hannah Lee, and was for the purchase of certain furniture sold by Ryder, Shane & Hyman to George W. Lee while he was living in Kansas City, Mo. ; that his mother knew nothing about the purchase of the same, or that there was a chattel mortgage given by her son on the property, until Johnson came to her house on Sunday, the 19th day of January. It was the first time that she had ever seen Johnson, or had any knowledge of him. He approached her in the sick chamber, introduced himself as a lawyer from Kansas City, and in a very rough manner demanded of her a settlement of the debt against her son, threatened, if she refused to settle, that he would send her and her family to the penitentiary; and after making threats to her on Sunday went away and returned again the next day and informed her that he had procured the necessary papers from the governor of Kansas - to take her to Kansas City, Mo., and there imprison her until her son could have a trial and then send her and her whole family to the penitentiary. After spending the entire afternoon in terrorizing the woman in her sick chamber, and when Crossan, who was the attorney for whom he had sent after to Paola, arrived, he informed him that he had her scared badly, and after this the note and mortgage were executed, the same being acknowledged by Crossan as notary public. With all this testimony before the court it was error to sustain the demurrer to the evidence, as a more high-handed outrage could scarcely be conceived than the evidence shows was perpetrated on Hannah Lee by the attorney and representative of the defendants in‘error.
We do not so understand the law as applied to the facts in this case. The evidence contained in the record shows that there was nothing said about the transfer of the note and chattel mortgage, or no mention of them until after the note and mortgage of Hannah Lee had been procured; and then Crossan, one of the attorneys for Ryder, Shane & Hyman, said to Johnson, the other attorney of theirs, that if he had the papers he had better turn them over to Mrs. Lee. This is the only thing that was said in relation to turning over any papers to her, and she supposed at the time that Crossan referred to the papers Johnson had represented that he had procured from the governor for her arrest and deportation to Kansas City for trial on some criminal charge; as he had told her that, if she would give a note and mortgage in settlement of this charge, neither Ryder, Shane & Hyman, nor himself as their, attorney, would prosecute them on the criminal charge nor allow the prosecution of the same; and this representation and promise on his part were the consideration for the giving of the note and mortgage, and Hannah Lee never received any benefit from the note and chattel mortgage. When Johnson handed them to Crossan they were laid on
The judgment of the court is reversed, and the case remanded to the district court to set aside the judgment and grant a new trial.