118 Ind. 533 | Ind. | 1889
The complaint alleges that the appellant is now, and was on the 6th day of March, 1885, the owner of certain lots in the city of South Bend, and of certain real estate, all in St. Joseph county, State of Indiana, and of the south one-third of lot 114 in the town of Goshen, county of Elkhart, State of Indiana, all of the value of f9,000, subject to existing encumbrances, and is not, and was not, the owner ■of any other real estate. On the 6th day of March, 1885, and for twenty-four years theretofore, he was the husband of the appellee Susan M. Stokes, and still is her husband; that he and his said wife had lived together amicably from the ■time of their marriage until the said date named, that he
The action was put at issue by an answer in denial and submitted to the court for trial, and during the trial the court, in its discretion, permitted the appellees to file a second paragraph of answer, to which the appellant replied in general denial, and the trial proceeded. At the conclusion of the evidence, the court made its finding for the appellees, after which the appellant filed his motion for a new trial, which was overruled by the court and the proper exceptions reserved, and the court rendered judgment for the appellees.
There is but one error assigned, and that is, that the court erred in overruling the motion for a new trial.
After looking into the evidence, as we find it in the record, we summarize the facts, except short quotations, which we copy from the testimony of one or two witnesses:
The appellant and his wife, Susan M. Stokes, who appears as one of the appellees, are now, and had been for twenty-four years immediately preceding March 5th, 1885, husband and wife, and on that day, to all outward appearances, were living together contentedly in the city of South Bend, State of Indiana. At that time Mrs. Stokes had an uncle, a prominent lawyer, residing in said city, Andrew Anderson by name, and who is one of the appellees to this action. Mrs. Stokes also had at the same time an aunt, Mrs. Mary Harris by name, residing in said city, and who had at one time occupied the relation of step-mother to her, her father having died theretofore. Mr. Anderson and Mrs. Harris were brother and sister. On the 4th day of March, 1885, Anderson and Mrs. Harris met at her residence and held a conference as to the domestic affairs of Mrs. Stokes and her husband, and to consider of her welfare; all of which was
Mrs. Stokes had hardly arrived at the residence of Mrs. Harris until Mr. Anderson was sent for, and soon after dinner he came. Soon after his arrival he made his mission known to Mrs. Stokes, and began to tell her of her many grievances because of the misconduct of her husband. He talked of the kind of life her husband was leading, and filled her mind and heart full of stories of his unfaithfulness. Reports of escapades of her husband with one Mary Reed, to New York, Niagara Falls and elsewhere, were graphically pictured, and although the many shortcomings of her husband, as related to Mrs. Stokes on that occasion, were communicated as well ascertained facts, it turned out upon the trial that all the information that Mr. Anderson had or possessed came to him as rumors floating around in the air.
As the result of the interview, the now discontented and
Before the 5th of March, and before Mr. Anderson had had any conversation with Mrs. Stokes, but most likely after he had seen Mrs. Harris, and after they had agreed to interview Mrs. Stokes, he spoke to Mr. Hubbard and suggested to him that trouble was brewing between Stokes and his wife, and, in case of a culmination, that he desired his services in her behalf. Immediately after the close of the conference with Mrs. Stokes, Anderson at once repaired to the residence of the unsuspecting appellant and found him at home, and expecting to meet his wife at the appointed time. Anderson had hardly entered the threshold until the appellant was informed that his wife was now advised of his unfaithfulness, and that he (Anderson) had known of appellant’s operations for some time, and that Mrs. Stokes would insist on a divorce, and would expect that suitable provision be made by him for her support, and a repayment of the money which he had used belonging to her.
The appellant, dazed and astonished, stated that all this, would bring upon him financial ruin, in answer to which he was informed that his credit was all gone anyhow. Anderson further stated that the appellant had been mortgaging his wife’s property and that he had got to secure her, and probably by a conveyance of property, and insisted that they at once go to his office, which they did. In the meantime Hubbard was notified- to be there in five minutes, and arrived.
The appellant showed no inclination to resist what Anderson said as to Mrs. Stokes’ intention. In this conversation it,
Hubbard, in his testimony, states that Anderson stated, and repeated it on that occasion, that Hubbard had been retained •and was acting as the attorney of Mrs. Stokes, but at the same time states that the appellant may not have so understood it, from the fact that soon after the parties came together on the evening of the 6th, he called him out and wanted him to advise with him as his attorney.
The appellant states that he supposed Hubbard was acting for him, and is to some extent corroborated by the circumstance that he had no attorney present on the evening of the •6th, and the further circumstance that he went to Hubbard on the morning of the 6th to get him to intercede with Anderson for an interview with Mrs. Stokes.
At the same time it is not to be forgotten in this connection, that Anderson states that- in the interview with Stokes •on the .5th, at - his house, he told him that he had retained Hubbard for Mrs. Stokes.
After the parties came together on the evening of the 6th, Anderson made known to the appellant that the rate of interest which his note was to bear for the first two years must be changed from three to four per cent., as had been before agreed upon, and that Mrs. Stokes was not satisfied with the amount of household property she was to get, but that she must have it all except some articles that had belonged to the appellant’s mother, and some pictures he had brought from California.
Finally, after the papers which Anderson desired executed by the appellant had been put in proper form, and containing the conditions and terms he demanded, he requested the appellant to execute them, but the appellant hesitated, -and read and re-read them; he made some suggestions as to
We quote a portion of the testimony, as given by Hubbard,, as to what took place on that occasion : “ It got to be past ten o’clock, and Mr. Stokes would read over and over the papers, and he suggested this difficulty and that, and additions were made to the declaration of trust; of course nothing was added to the deed after Anderson got in the description of the Elkhart county property, which he got of Mr. Stokes. We made repeated additions to the declaration of trust; that was the main thing ; still Mr. Stokes hesitated; he read it over and over, and he says to me: ‘ Don’t you think I ought to take more time than this ? ’ I said, ‘ I see no reason, Mr. Stokes; if you understand it you may as well close it up.’ Anderson was busy with somebody else while he and I did stay for an hour or so in Anderson’s room. We went in there because it was more private. He came in — it must have been after ten when he came in; Stokes was still hesitating, although the papers were finished; he was suggesting this and that; after it was closed up and there was nothing more, Anderson says: ‘Are you _ ready,’ or ‘ Is it done,’ or something of that kind. ‘Well,’ Mr. Stokes said, ‘ I do not know as I understand.’ Well, Mr. Anderson took up the thing and read that, and said : ‘ You understend that, don’t you ? that is a promissory note for $9,000,’ and read it over. ‘ Yes, sir,’ Stokes said. He read over the deed, and said : ‘ Now, you understand that, don’t you ? ’ Stokes said : ‘ Yes, sir.’ He read over the declaration of trust. ‘ Now,’ he says, ‘you are a business man; you understand this; you understand the effect of it, don’t you?’ ‘Yes, sir.’ Well, Stokes still hesitated. He stood there with a pen in his hand, and kept hesitating, and it got late, and Anderson said : ‘ This thing must be closed up to-night.’ Stokes said : ‘ I guess I had better take more time to look it over.’ Anderson said : ‘No, you understand it; if you put it off you will be no
The witness further states that when Anderson spoke of suing the appellant he spoke in a threatening manner. The appellant spoke about wanting more time to look the papers over, and Anderson told him he could come in the next day and look them over as often as he wanted to, and if there was anything wrong it should be corrected. Anderson says that this statement only applied to the declaration of trust.
Hubbard further testified. We quote from his testimony: “The deed, when'we got through with it, and its execution was acknowledged, laid there on the table in Matthews’ room before us, and I think Wiley took it in the other room. My impression was that he took it in there to put a seal upon it, or something, and Wiley came up and had something to do with it. The papers all lay there; that deed had to be recorded in both counties, Elkhart and St. Joseph, and I said to Mr. Anderson, ‘ will you take charge of this and see to its recording?’”
We quote further from the testimony of this witness : “ I say when we got through signing the papers they lay on the table; it was in Matthews’ room. When the papers were gathered up I spoke to Mr. Anderson to take care of the deed. I was the grantee in it, and I asked him to take charge of it and see to the recording of it. I knew that there
Anderson testified, and we quote from his evidence : “ I told him (Stokes) he knew very well whether he could trust us or not, but the matter had to be settled that evening, so he stepped up to the desk and signed the note, deed and bill of sale, and I think he signed the declaration of trust. Mr. Hubbard signed the declaration of trust also. I called in Mr. Wiley out of the other room, he being a notary public. Mr. Stokes then acknowledged the deed before him. Mr. Wiley was my clerk. I took the deed, note, bill of sale and declaration of trust, and I think put them in an envelope, handed them to Mr. Wiley and told him to put them in the vault, and so ended the interview.”
Anderson further states, and he is not contradicted by any one, that Wiley did not put his certificate or seal to the deed until the morning of the 7th. Matthews was not present on the evening of the 6th. He signed the declaration of trust on the morning of the 7th, but gave no direction as to its delivery. He at no time accepted the deed of trust or authorized its acceptance, further than what is implied from agreeing in advance of the execution of the papers to accept the trust and the execution thereafter of the declaration of trust.
The appellant testified as follows as to the signing of the papers: “ I picked up the pen and hesitated about signing them. Mr. Anderson said, if my memory serves me right, Sign them,’ or ‘ Sign and get through with them.’ I think he only said ‘ Sign them.’ He called Mr. Wiley in and asked him something about taking the acknowledgment of the deed. I was not acquainted with Mr. Wiley, neither did I have any conversation with Mr. Wiley that evening, nor did I see him sign his name that evening. Mr. Anderson picked up off of the table the papers and handed them to Mr. Wiley. I said to Mr. Anderson, ‘ I will come up and look them over in the morning.’ ”
There had been put into the Mishawaka property by the • appellant about $15,000. This seems to have been a property of uncertain value. If we suppose this property to have-been worth $15,000, the value of the entire estate belonging to the appellant was, on March 6th, 1885, $32,000; deduct therefrom $25,700, and the balance is $6,300.
This was substantially financial ruin, for no one could convert the property and pay the liabilities. We apprehend that it would have been difficult to have found a responsible person who would have taken the property and assumed the-liabilities.
A clearer case of conspiracy to separate and divorce husband and wife, and.to financially ruin the husband, will rarely be found than is made out by the evidence in the case under • consideration. Indeed, there seems to have been no effort to - cover up or conceal the purpose. But the trouble is, the complaint fails to charge a conspiracy, and no relief can be afforded on that ground.
The appellant was not threatened with great bodily harm, nor with a criminal prosecution, and therefore was not under duress such as is recognized by the law, and can obtain no relief on that ground, although we are satisfied that the presr sure that he was placed under was about as effectual as though . force or criminal prosecution had been threatened.
A further question for consideration is, whether or not the- • deed, note and bill of sale which the appellant signed were - ever delivered so as to impart to them validity as executed., writings. And notwithstanding there is no conspiracy charged l
The oral negotiations between Anderson, Hubbard and the appellant culminated on the night of the 5th of March in an agreement that the appellant would execute to Hubbard and Matthews a deed of trust for all of his real estate, a bill of sale to his wife for certain of his household property, a promissory note, for his wife’s benefit, to Anderson for $9,000, and in return Hubbard and Matthews were to execute a declaration of trust, and Mrs. Stokes a release to the appellant of all liability for her future support, which Anderson -was to guarantee. These were to be concurrent acts. When Anderson, Hubbard and. the appellant met at the appointed time and place, Mrs. Stokes was not there, nor was Matthews. No written release from Mrs. Stokes had been
It would hardly be expected that a sane man, acting of his own free will, in view of the circumstances immediately preceding, and the treatment that he had received, would execute conveyances and obligations, which sooner or later would result in his financial ruin, and accept verbal promises from those who had brought his troubles upon him that they would at a future time comply with their part of the agreement and execute the writings which were for his benefit, and to be executed contemporaneously with his, and the sequel shows that he did not. It is true he signed the deed, the note and the bill of sale, but under what circumstances? The evidence, as we have set it out, discloses. The appellant pleaded for time. Anderson insisted that he understood the writings. Stokes hesitated and asked for time. Anderson was urgent, and said to the appellant that if he put the matter off until to-morrow, he would be no nearer ready than to-day. Anderson became impatient, and Stokes still hesitated. Finally Anderson displayed his impatience, and said to the appellant that he must close the matter that night or he would sue him the next morning by 7 o’clock. Appellant still hesitated, but finally reluctantly took the pen and signed the papers. This'was about 11 o’clock in the evening. Although the appellant signed the papers, the circumstances show that he did so against his will and desire, and that he did nothing more than the pressure brought to bear upon him compelled him to do. There is no evidence tending to show any intention on the appellant’s part to deliver the papers, and the circumstances all rebut any such intention. He was not pressed to deliver the papers, and therefore said nothing and did. nothing in that direction.
We quote from Hughes v. Easten, 4 J. J. Marshall, 572 (20 Am. Dec. 230): “ But simply proving, as in this case, that the deed was signed and attested and left on the table without a delivery to any person, and in the absence of the donee, would not be sufficient evidence of a delivery. Signing and sealing a deed, give it no effect without a delivery.”
In Chadwick v. Webber, 3 Greenl. 141 (14 Am. Dec. 222), the tenants claimed under Jeremiah Webber, a son of Charles, by virtue of a deed of the lands alleged to have been given by Charles to Jeremiah. Charles and Jeremiah were partners in trade. In 1809 Charles went before a notary, in the absence of Jeremiah, and acknowledged his deed to the premises in question to Jeremiah for the expressed consideration of four thousand dollars. Jeremiah had drawn up the deed. In 1814 certain other deeds were •executed by Charles in the presence of his son and of witnesses; the deeds were all in the son’s handwriting, and after they had been executed they were wrapped in a piece of brown paper and deposited by the son in a trunk, where the partnership papers were kept, and to which the father alone had the key. These deeds and the deed of 1809 were found in the father’s desk on his decease, and upon the wrapper was written : “ Charles Webber’s deed to his son, not to be opened till after his death.” The court said : “A delivery of a deed maybe by acts or by words or by both. It may be
We quote and emphasize a part of what is stated in the-above quotation, because of its applicability to the case under consideration : “But if a man throws a writing on a table, and the party takes it, this does not amount to a delivery,, unless it be found to have been put there, with intent to be delivered to the party.” The appellant left the deed upon the-table. He said nothing and did nothing to indicate that he intended to deliver it. All the circumstances show that it was contrary to his wish to execute the deed, and so with the other papers. After they had been signed,-Anderson, of his own accord, stepped forward and picked them up, handed them to his clerk and told him to put them in the vault. The mere lodgment of a deed in a place to which the grantee-has access is not a delivery. Huey v. Huey, 65 Mo. 689.
We quote from Mills v. Gore, 20 Pick. 28: “ Jonathan D.. Wheeler, one of the attesting witnesses to the execution of the deed, testifies that he saw Gore sign the deed, and that he and Luke Harrington subscribed their names as witnesses ; that Gore, who was standing by the side of Mills at a desk, took up the deed after signing it, put it before Mills on the desk, and remarked, ‘ There is no go back from that; ’ that this was before Wheeler and Harrington had subscribed
We quote from- Woodman v. Coolbroth, 7 Greenl. 181, side .page (syll.): “Where the parties to a deed were both pres
Another circumstance which is not to be overlooked in. this connection is, that the appellant was to have the privilege of returning to Anderson’s office on the next day after he signed the papers to examine them, and, if they were found to be incorrect, proper corrections were to be-made. Hubbard and the appellant state that this was a condition applicable to all of the papers. Anderson limits it to-the declaration of trust. But whether applicable to all or to a part, the right to an examination on the next day was reserved, and if the papers, or paper, to be examined were, or was, found to be incorrect, the proper corrections were to be made.
From the evidence, as we have it before us in the record,, the papers in question were never delivered. We do not. reach this conclusion upon the weight of the evidence, but as a legal conclusion arising from all the evidence in the record.
Another question presented by the record, and the last one which we shall consider, is as to whether there was any valid or legal consideration passing to the appellant for the-deed, promissory note and bill of sale. Upon this question a great deal need not be said. As is already disclosed, the appellant and his wife were living together as they had lived for twenty-four years, without any thought of separation or of legal proceedings on her part to obtain a divorce and alimony. But after an interview with her uncle and aunt Mrs. Stokes makes up her mind that there must be a dissolution of the marriage relation existing between' herself and husband, and provision made by him for her support in the
Mr. Anderson at once informs the appellant what has been determined upon, and that in the action for divorce the charge of infidelity will be relied on. A settlement as to alimony is demanded in advance, and the amount claimed is $5,000. Afterwards the appellant is informed by Mrs. Stokes’ legal advisers that the action for divorce is a foregone conclusion, and that no adjustment can be made that will avert it, but as to the costs which will accrue, and her attorney’s fees, there may be some arrangement made.
Finally an adjustment is agreed upon. The appellant is to secure in advance the sum of $5,000 as alimony, pay the costs and the plaintiff’s attorney’s fees in the divorce case, and the amount that he shall pay to her attorney is agreed upon, and instead of bringing a charge of infidelity against the appellant he is to be charged with a failure to provide for his wife. And one of her attorneys, her principal adviser, suggests that he will talk with the judge of the court in which the divorce proceedings are to be instituted, and relate to him the circumstances, and ascertain if he can the probability of securing the divorce on the ground proposed. And it is agreed further that Mr. Hubbard is to have the management and control of the divorce proceedings, and an agreement is made with him as to the fee to be paid. This was a mere collusive agreement between husband and wife, whereby the wife was to obtain a divorce from her husband. The agreement in effect was, that Mrs. Stokes would ignore the cause of divorce which actually existed, as she claimed, and allege another, upon which she did not in fact rely; that her husband would make no resistance to the action, but would aid in bringing about the desired result by agreeing to pay the costs and the fee of her attorney.
The principal matter, under the arrangement, was the dissolution of the marriage, and incidental thereto the settle
The entire transaction was one which was against public policy, and therefore the consideration for the signing and delivering of the writings was illegal. As the writings rest upon an illegal consideration, the courts will not recognize or enforce them.
The case of Dutton v. Dutton, 30 Ind. 452, is not a parallel case to the one under consideration. In that case an action was pending by the wife against the husband for a divoz’ee, and on the day the judgment and decree was entered of record, and immediately preceding, an agreement was made that the amount of the recovery on account of alimony should be $1,000, to be paid by the conveyance to the wife of a certain ti-act of land, the husband to pay the costs and the wife’s attorney’s fee. After the decree had been recorded, the husband, in payment of the judgment, executed the conveyance. Under the arrangement the conveyance was as complete a payment of the judgment as though it had been paid in money, and it was unimportant whether the original agz’eement was, or was not, illegal.
That a contract made between husband and wife, in view of separation, and fully executed by the husband, fair and equitable between the parties, will be upheld, as ruled in the foregoing case, does not conflict with the conclusion we have reached. It may be that if an action for divorce is pezzding, or if, in anticipation of such an action, the parties meet and agree upon the amount of alimony to be allowed to the wife • in case a divorce is granted, and the arrangement is just and equitable, and confined strictly to the matter of alimony, it will be sustained. But if the agreement is broader in its terms, and its tendency is to interest the husband in procuring a divorce or in foregoing resistance to an effort by his wife to that end, then it is contrary to public policy, and is void. Everhart v. Puckett, 73 Ind. 409 ; Muckenburg v. Holler, 29 Ind. 139; Viser v. Bertrand, 14 Ark. 267 ; Adams
We quote from the last case : “The cases cited, show with what strictness and care the law guards and upholds the marriage relations; and that no contract, having for its object their dissolution, or calculated to disturb them, can be sustained. In this State at least, a separation a vinculo, can only be effected through a decree of the courts of law. No agreement of the parties can have that effect. Sound policy as well as established law forbids it, and any agreement made in fraud of the purposes of the law, and against its policy, is .illegal and void.” Bishop Mar. & Div., section 635 et seq.; 1 Bishop Married Women, section 760; Speck v. Dausman, 7 Mo. App. 165.
The judgment is reversed, with costs.
Mitchell, J., took no part in the decision of this case.