Smith v. Allis

52 Wis. 337 | Wis. | 1881

Orton, J.

The mortgage to be foreclosed in this case was executed by the defendants,-as husband and wife, upon the homestead and separate estate of the wife, to secure a note, also signed by both, for the antecedent debt of the husband. The husband did not appear or answer, and the gravamen of the defense set up by the wife is, that she signed both the note and mortgage, induced by the coercion and undue influence of her husband, and that she never acknowledged the mortgage. To sustain this defense the wife, Mrs. -Allis, testified: “And then Mr. Allis came hack and came into the kitchen with a paper folded in Ms hands. He touched me on the elbow as he passed, and says lie, "I have a paper here that I want you to sign;’ and I looked up at him and said, ‘Go into the entry; I will he there in a minute.’ I said that because we had a girl that was prying into everything, and was a great girl to tell everything, and I was dishing up the dinner, and I had not time to speak there. I went into the entry, and I says, ‘What paper is it?’ Mr. Allis answered that it was a paper he wanted I should sign, to Smith’, that it was a paper to Smith. I says, ‘I am not going to sign it; I do not want to sign it;’ and he says, ‘Yon will sign it;’ and I said, ‘I won’t sign it; ’ and he said, ‘You shall sign it, or woe be unto you;’ and he raised his voice in a very angry tone, and I was afraid the boarders would hear him, and I went out and closed the door. As he came into the house he had a peculiar look in his face, and that was unusual from his general manner; and from that night through, as I saw him in the entry, he looked the same. It was a strange, peculiar, savage look, and very unusual in his family. He was a mild, pleasant man in his family; and when he spoke so roughly to me, it cut me very much. The effect was that I commenced crying and feeling very badly. Neither of the papers I signed was read over to me. I had no idea what they were. I signed them. I would not have signed them if it had not been what they said to me there. The plaintiff, Mr. Allis and myself were present when I signed them. Smith said it was a friendly act. He said he was a friend to Mr. Allis, and that it was a friendly act. I think he said he wanted to assist him. I never acknowledged this mortgage, nor asked anybody to witness it.” This is all of the testimony bearing upon the defense, except the circumstances of the indebtedness, which were such that it is certainly very strange and unnatural that Mrs. Allis should know nothing about it, or the meaning and effect of the negotiation between Smith and her husband to secure it.

It is elementary law that to sustain such a defense against a note and mortgage and its acknowledgment, perfectly regular and fair upon tlieir face, the evidence must be perfectly clear, convincing and satisfactory. If authorities were necessary to sustain such a proposition, the cases in this court, cited by the learned counsel of the appellant, are abundantly sufficient. Newton v. Holley, 6 Wis., 592; Fowler v. Adams, 13 Wis., 458; Lake v. Meacham, 13 Wis., 355; Harrison v. Bank, 17 Wis., 340; Kent v. Lasley, 24 Wis., 654; McClellan v. Sanford, 26 Wis., 595; Wells v. Ogden, 30 Wis., 637; Harter v. Christoph, 32 Wis., 245; Sahle v. Maloney, 48 Wis., 333. To say the least of it, the testimony of Mrs. Allis is open to much suspicion. It was her own suggestion that the interview between herself and husband in relation to the signing of these papers should be strictly private, and especially out of the presence and hearing of a certain girl, who was “prying into everything,” and “ a great girl to tell everything.” She must have had some faint idea, at least, of the nature of the transaction which she was so anxious to conceal. It is certainly very remarkable, if not unwomanly, that she did not insist upon an answer to her question, “What paper is it? ” If her natural curiosity would not have prompted her to insist upon a disclosure of the transaction, her reason would seem to have required it, in order to justify her refusal and resistance; for the papers, so far as she knew, according to her evidence, might have been entirely harmless and of no particular consequence. In the private interview in the entry, she is prompt and emphatic to answer his first request: “I am not going to sign it; I do not want to sign it,” — when she did not know what he wanted her to sign. Is it possible that she owned a separate estate, and did not know what a promissory note was? The only language imputed to the husband, from which coercion or undue influence can possibly be inferred, is, “ You shall sign it, or woe be unto you.” This was said in a loud and angry tone of voice, with a peculiar, strange and savage look in his face. But the wife testified, in connection with this threat and threatening appearance, that it was “ very unusual in his family,” “unusual from his general manner,” and that “ he was a mild, pleasant man in his family.” Had she any reasonable ground to fear anything harmful from such a husband, in this first exhibition of his temper, however violent his language or terrible his denunciation of woe unto her? Mrs. Allis testifies as to what took place in the sitting-room when she signed the papers, and as to what her husband and the plaintiff said to her there about the matter, and then says: “ I would not have signed them if had not been for what they said to me there.” Here is her admission that she was not coerced into signing the papers by her husband’s threats in the’ entry, or so unduly influenced by anything that occurred there that she would have signed them; and it is very clear, from her own testimony, even, that nothing occurred in the sitting-room, at the time the papers were signed, that supports the defense.

It is too plain for argument that the evidence in this case falls far below the above rule to sustain such a defense. But, irrespective of the insufficient and questionable character of the testimony of the wife in this case, upon the issue made by the answer, and she having testified positively that she never acknowledged the mortgage, notwithstanding the certificate of the officer to that effect, we feel called upon to say something further upon this question, so ably discussed by counsel, whether in any similar case the unsupported testimony of the wife alone is generally sufficient to sustain such a defense, and disprove the acknowledgment. Although we may think that the testimony of Mrs. Allis is insufficient and unsatisfactory in itself, and falls below the rule in sustaining her defense, and although the mortgage may be effectual to pass her interest in the premises without any acknowledgment, we feel called upon to say that the wife’s unsupported and uncorroborated testimony alone, however direct, positive and consistent in itself, is generally insufficient to sustain such a defense. We so hold both from reason and authority; but I shall not attempt any extended argument of the question or any special review of the authorities. Such coercion and undue influence are generally, and are likely to be, complained of as having been used under circumstances of the strictest privacy, against which there could be no defense. To allow the testimony of the wife alone to prevail in sustaining such a defense, is really submitting the integrity of her most solemn contracts and conveyances, in many cases, to be destroyed by her own interested testimony, without the chance of contradiction, and allowing her to rescind them at her pleasure. It is hard to conceive a case where such evidence alone, against her most solemn acts of contract and conveyance, could be beyond a reasonable doubt, which is the rule in such cases (Newton v. Holley, supra), and we have been unable to find any such case.

Without going further in the examination of authorities, we may rest this intimation upon the recent case of the Northwestern Life Ins. Co. v. Nelson, decided by the supreme court of the United States, and found in the April number of the Albany Law Journal, p. 336, in which the testimony of the wife is much stronger than in this case. She testified in that case that “ her husband held her in a chair and guided her hand so as to write her name to the mortgage, and that when'she acknowledged it, she said nothing, her husband, by. motions, telling her to keep quiet, and that the acknowledging officer falsely represented the mortgage.” It was held that this evidence alone was insufficient to sustain the defense, and as to the acknowledgment the court says: “The acknowledgment of a deed can only be impeached for fraud, and the evidence of fraud must be clear and convincing.” That court cites the following cases to sustain this ruling: Shelburn v. Inchiquin, 1 Bro. Ch., 338; Henckle v. Royal Assur. Co., 1 Ves. Sr., 317; Townshend v. Stangroom, 6 Ves. Jr., 332; Gillespie v. Moon, 2 Johns. Ch., 585; Lyman v. United Ins. Co., id., 630; Graves v. Boston Marine Ins. Co., 2 Cranch, 419; Howland v. Blake, 97 U. S., 624; Russell v. Baptist Theo. Union, 73 Ill., 337. In support of the proposition we may also refer to the authorities cited in the brief of the appellant’s counsel. We do not hold that the testimony of the wife alone may not sustain the defense that her husband coerced or unduly influenced her to sign the mortgage, in any possible ease, where the circumstances or the character and relations of the parties may be such as to render it very probable, and her clear and consistent statements, and her appearance and manner of testifying, may make the most convincing impressions of the truth of her evidence upon the court or juiy. But we do wish to say that as a general rule her unsupported testimony alone ought not to be received as satisfactorily establishing such a defense, and especially to overcome the formal certificate of acknowledgment by the proper officer, unless beyond reasonable question. We do not wish to say that such testimony may never be sufficient in any case, but that such a convenient defense to a mortgage upon the homestead or the separate estate of the wife, to secure the husband’s debt, as that her signature was procured by the coercion or undue influence of her husband within the privacy of home, thus defeating the rights of an innocent mortgagee, ought not to he encouraged by overestimating her testimony. The chances of collusion are great and beyond the possibility of exposure; and innocent persons who have parted with their money upon the faith of securities executed in the most solemn form, are very liable to suffer from the effect of family interviews between husband and wife, very properly guarded and closed against outside knowledge or intrusion. As there can scarcely be found a reported case where such a defense has prevailed upon such questionable testimony, very few if any will be likely to occur in the future. We regret the necessity of so widely differing from the learned and usually correct judge who tried the cause, in the estimation of the testimony; but the principle involved is of too much importance to allow the finding to stand upon such inadequate support.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to that court to render judgment of foreclosure against both of the defendants.