83 Neb. 536 | Neb. | 1909
Cross-action to foreclose a mortgage. Defense that the property described in the conveyance was the separate property and homestead of the mortgagor, a ■ married woman, and that said instrument was secured by ‘fforce, fraud, terrorism and coercion exerted upon her in the absence of her husband,” by an attorney who repref,QT>*ed_ the mortgagee. There was judgment for the defe and the mortgagee, Grace E. Waisner, appeals.
There are some undisputed and many contr^ facts in the case. The evidence is clear that the 3 scribed in the mortgage constitute the homester separate property of Mrs. McCandless; that sly married woman, and with her husband has occupy property as a homestead for some 15 years last pat the lots are not worth to exceed $2,500 and are¿ bered by a bona fide prior mortgage for $800. ,y Candless is an attorney at law, and preceding tla_ tion of the contested mortgage, as sucli lawyer, ceived a large sum of money for his. client, Mrs. ay .kef,' ' and was owing her on said account an indefinite sum of
In the instant case we are not dealing with legal or lay definitions of a word, but whether this woman understood, and had reasonable ground to believe, it was used with reference to a criminal prosecution. The language used by the attorney indicates a discriminating mind, but one can read between the lines a veiled threat, a purpose to convey a sinister meaning, that he did not intend to content himself with recourse to a civil action to compel her husband to make restitution for the money he had wrongfully and, possibly, criminally converted to his own use. Her future conduct is incompatible with any understanding other than testified to by her. Mr. MeCandless returned about 8 o’clock that evening. It was a cold, wet, disagreeable night in January. She had never before in their married life gone to the depot to meet him, and yet this night she appeared there improperly clothed for the street, in a highly excitable and nervous condition, and insisted that the mortgage should be given forthwith. Her husband went with her to his office, where they found the vigilant collector waiting for them. The husband and wife testified that Mr. MeCandless did all in his poAver to dissuade her from signing the mortgage, but that she insisted that it be done, and finally the instrument was executed. The attorney representing Mrs. Waisner testified that during the time he called upon Mrs. MeCandless in the afternoon she was cool and collected, perfectly willing to give the mortgage, and remained in the same condition during the conference at the office, and that both husband and wife were satisfied with and desired to execute said instrument. It is undisputed and significant that all parties remained in the office over tAVO hours, a
Although the circumstances of this case are unusual, and the woman had the benefit of the presence and protection of her husband at the closing scene of the drama, staged by the representative of Mrs. Waisner, we are not satisfied that the mortgage represents the free consent of the mortgagor. “The consent by which agreements are formed ought to be free. If the consent of any of the contracting parties is extorted by violence, the contract is vicious, * * * and the person whose consent is extorted, or his heirs, may procure it to be annulled by letters of rescission.” 1 Pothier (Evans), Obligations, p. 115. And cases may occur where one party to a contract in terror, under threats short of duress, does not act with a free will, and, if it is made to appear to a court of equity that he was not a free agent, that court will protect him. 1 Story,' Equity Jurisprudence (13th ed.), sec. 239; Bispham, Principles of Equity (6th ed.), sec. 230. In the instant case the rights of third persons do not intervene, the wife received no consideration • whatever for her act, nor has Mrs. Waisner lost anything by the receipt of this mortgage. She may have scaled down her claim against McCandless, but, if it was-in consideration of the giving
In the instant case the representative of Mrs. Waisner did not in positive and direct language state that he would cause her husband to be prosecuted if the mortgage was not given, but he first disclosed to her that he possessed the power to institute or cause to have instituted a criminal prosecution against her husband, and then told her that, if the mortgage was not signed, he would commence proceedings against her husband, and thereby excited in her mind extreme apprehension for his safety, and we believe secured the execution of the instrument in suit. We think the district judge who saw and heard all of the witnesses whose evidence appears in the record was justified in concluding, as he did, that the mortgage was secured from Mrs. McCandless by working on her fears, that it was not the result of her free will and voluntary action, and that the mortgagee was not entitled to the assistance of a court of equity to enforce its provisions.
The judgment of the district court therefore is
Affirmed.