73 Wis. 486 | Wis. | 1889
This appeal is from the judgment of foreclosure of the following mortgage: By Peter Hamilton and Bridget, his wife, to the respondent company, on the south half of the northwest quarter of section 18, and the southeast quarter of the northeast quarter of section 14, town 10 N., range 1 W., to secure the payment of three notes given by M. J. and the said Peter and Bridget Hamilton, for §600, payable June 1, 1887; $600, payable June 1, 18S8; and for $600, payable January 1, 1889,— dated November 20, 1885. The defendant Bridget Hamilton answered the complaint in the action by setting up substantially that the last above described forty acres was the homestead of herself and husband, Peter Hamilton¡ and that she ivas induced and unduly influenced to sign said mortgage, so far
The ground relied upon is that the judgment is against the law and evidence. By force of what we deem is a very strong preponderance of the evidence against it, we are compelled to differ with the learned circuit court in its finding on this issue. The general facts, and the testimony on the issue of duress, are as follows:
Some time in the year of 1881, M. J. Hamilton, the son of the said Peter and Bridget Hamilton, became the agent of the respondent company, at Richland Center in this state, to sell its machinery. Until May, 1885, an annual settlement had been made with him and his accounts adjusted. Before that time the said M. J. had been subject to occasional and temporary insanity, and about that time he had given evidence of a return of that malady, and was wild and reckless in his sales and business, and the company had been notified by his family that they must send an agent to look after their business in his hands. Accordingly, William Vareo, the general agent of the company, came there and examined his affairs, and induced his brother John to be associated with him in business by their advertisement, but left M. J. ostensibly to continue in it. The agent Vareo at the same time induced the father o'f M. J., the said Peter Hamilton, to become his security for the business left in his hands. About the 18th day of November thereafter, his brother John notified the company that M. J. had again
Yarco had several interviews with the mother, Bridget Hamilton, and tried to induce her to sign the mortgage for the homestead, and she as persistently refused, but offered to sign the mortgage for the balance of the farm, and Yarco refused to take such a mortgage. She testified as follows: “He wanted me to sign a mortgage on my homestead,or he would send my son to state prison for one year or ten. He said, if I did not give a mortgage, he would have to go to state prison one year or ten. He said, ‘ Don’t you think more of your son than the McCormick Company does?’ I said, ‘I ought to.’ He replied, ‘Would you rather sign a mortgage- on your homestead than to have your son go to state prison for a year or ten? . . . The McCormick Company knows the law and they will use it.’ He said, if
James Hamilton, brother to M. J., testified as follows: “ They -were talking there all the evening. He [Yarco] wanted her [his mother] to sign the mortgage. She told him she would not. He wanted to know of her if she did not think more of her son than the MoCormich Company did. Then he told her he wanted to know why it was she would not sign the mortgage, and she told him that she did not think she had any reason to; that her son had not done anything, and that she did not owe anybody : and it seemed to me like he got -mad, and he jumped up and said he would orach his whip, and started out of the office. I asked him, provided my mother did not sign that moi’tgage, what they wanted to do with my brother. He said they had one fellow in for three years on just such a case as that, and this was a good chance for another; but it xvas not him -who would execute it; that it would be the company.” This explains xvhat Yarco meant when he threatened that he would turn it over to the company. James told his mother
William Varco, the agent, testified as follows: Supposing a certain state of facts, he said: “And that, in my opinion, it would constitute embezzlement. Mrs. Hamilton asked me what would be the penalty if he was guilty of embezzlement. I told her that I did not know; that I understood it to be a penitentiary offense, but, as to the penalty, that would be with the court and jury.” This language clearly means, that it would 1)6 with the court and jury to fix thp penalty in the case of her son. He testified further: “She said, ‘Would you send Jlike to the penitentiary ? ’ I said, ‘ Ho.’ I asked this mortgage in a settlement of this business between ourselves, to stop litigation of any kind. She said she did not think that, in view of the amount of business he had done for the MoQormiolc Company, that they would send him to the penitentiary. I said, of course I could not tell whether they would be disposed to or not, but if they could, without a superior power to prevent it, would you expect them to think more of your son than you? Finally I said: ‘I am getting-tired of this. If you cannot settle this, 1 will orach my whip.' I told Mrs. Hamilton I thought it would be better to settle up and avoid litigation. I supposed that, as a matter of course, if they did not settle up, they would commence some suit.” When asked: “Did not you tell him \_M. J.~\ that you thought he was liable for embezzlement?” he replied: “I told him I thought he was.” lie further testified “ that he was not positive that Mrs. Hamilton did not say that it was entirely against her will and against every vein in her body that she signed the mortgage.” When asked: “Yon say that you never stated to Mrs. Hamilton that it would go pretty hard with the boy if he did not sign the mortgage?” he implied: “I won’t
It is true that the finding of the circuit court in such a case, or in other cases, ought not to be disturbed by this court without a clear preponderance of the testimony against it, and that on the question of the credibility of the witnesses the trial court or the jury has superior advantages and better means of determining it than this court, having seen the witnesses and heard them testifyr, yet, when the testimony, as in this case, not only very strongly preponderates against the finding but is all one way against it, and the material facts stand admitted by the agent of the company who made the threats and -was guilty of the duress, then the duty of this court is clear to find the facts otherwise and reverse the judgment. It is perfectly certain that Bridget Hamilton would never have signed the mortgage which included their homestead if Yarco had not threatened that if she did not he would prosecute and imprison her son If. J. Hamilton for the crime of embezzlement, and that she signed it for no other consideration than to prevent his imprisonment for that pretended crime, notwithstanding she did not herself think that he was guilty of any crime whatever. She evidently feared that
In view of these facts, the law is well settled that the mortgage, so far as the homestead is concerned, is absolutely void. If these facts did not technically constitute duress of imprisonment, for which contracts will be set aside, in equity it is very clear that Bridget Hamilton was so put in fear and under terror by the repeated threats of Yarco that they would imprison her son, and she was so unduly influenced and overpowered by them, that she did not sign away her homestead of her own free will, and such act should be declared void. Fay v. Oatley, 6 Wis. 42; Bogic v. Bogie, 37 Wis. 373; Kuelkamp v. Hidding, 31 Wis. 503; Watkins v. Brant, 46 Wis. 419; Lefebvre v. Dutruit, 51 Wis. 326; Smith v. Smith, 60 Wis. 329. “When-one is under the influence of extreme terror, or of threats, or of apprehensions, short of duress, his acts may be avoided, for in cases of this sort he has no free will, but stands in vin-oulis.” 1 Story, Eq. Jur. § 239. But the modern doctrine of duress is established where actual or threatened violence or restraint contrary to law compels one to enter into or discharge a contract. Bouv. Law Dict. “When there is a fear of imprisonment, excited by threats, it is dxiressS Will. Eq. Jur. 209. “ Terrifying a woman by threats of prosecuting her husband for alleged embezzlement is such
There seem to be very few cases where it is held that a contract or conveyance may be avoided by duress to one’s child, but many cases by duress to one’s husband or wife, and such seems to have been the limit by the older authorities. But natural affection is as strong towards one as towards the other, and the same moral obligation of mutual protection exists between them, and the threats of personal injury to the child would be as great an inducement or undue influence as to the husband or wife, and there is no possible reason for the exception. The maxim persona conjuncta aequiparatur inter esse proprio, under which it has been so often held that duress to the wife is the same as to the hus
The contract is then void by every principle of equity. It is the worst species of fraud, because it attacks the weakest point of human nature, and appeals to natural affection. What will not a mother do to save her child from imprisonment for crime of which he is not guilty? We cannot but regard this case as one of the strongest that would be likely to occur. The homestead is sacred to the wife especially, and should not be taken away without her signature to the deed as an act of her own free will. She knew that her poor insane son was not guilty of any crime, but she did not know but that he might be arrested and imprisoned on the pretended charge of embezzlement, baseless as it was, and suffer great bodily as well as mental harm, and loss of reputation and character. She kept pressing uponYarco: You would not prosecute and imprison my son, would you? No; but what the company might do he could not say. But would you think the company thought more of your son than you do? He kept before her all the time the fear that the company would do so.
The circuit court ought to have found the issue that Bridget Hamilton signed the mortgage by threats, duress, and undue influence, so far as the homestead was concerned.
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment of foreclosure of the mortgage as to the first-described eighty acres only, and enter judgment as to the other or homestead forty acres that the mortgage be canceled, set aside, and held for naught, on the ground that it
The following opinion was filed February 27, 1889:
Since handing down the opinion in this case, my attention has been called to the fact that there was a mistake as to the southeast quarter of the northeast quarter of section 14, town 10 ÜST., of range 1 W., being the homestead of the said Peter Hamilton and Bridget Hamilton, his wife, and that there was a mistake in this respect in the record and in the opinion and judgment of this court. The opinion and judgment of this court is therefore hereby modified in this respect, so that it may have the effect to have the judgment of the circuit court declare the said mortgage void as to whatever homestead the said Peter Hamilton and Bridget Hamilton, his wife, or either of them, had and held in any part of the mortgaged premises, not exceeding forty acres, whatever its description may be. The opinion and judgment in this respect will stand as so corrected, and the circuit court is ordered to render judgment according to this correction, unless”the specific description of said homestead can be certainly ascertained, in which case such description should be inserted in the judgment declaring the mortgage void in respect to the same, and the judgment of foreclosure should be entered as to the balance or residue of the mortgaged premises, whatever its description may be by this correction.