| Mo. | Feb 24, 1903
This is an action by respondent against the appellant, W. H. Overall, to cancel a deed of trust executed by plaintiff and husband to secure the payment of a note of $1,350 payable to W. II. Overall.
The petition, answer and replication present the issues fully, and in order to intelligently understand just what the issues were as presented and tried by the lower court, we here insert them.
“Plaintiff, Novella Turner, states that she is now and at all the times hereinafter üamed has been, the owner in fee of the following described real estate situate in the county of Stoddard and State aforesaid, to-wit, the west half of the northeast quarter of section thirty-five, in township twenty-seven, range eight. That, on October 12, 1896, she and her husband, George Turner, executed a deed of trust on the above described real estate to the defendant N. M. Pouch, as trustee, for the benefit of the defendant W. PL Overall, to secure’the payment of a note of that date for the sum of $1,350, payable to the said W-.H.Overall on July 1,1897. Plaintiff states that at the time of said execution of said deed of trust she was and still is the wife of the said George Turner, and that at the time she executed said deed of trust there was pending in the circuit bourt of DeKalb county, in the State of Tennessee, a bill of indictment against her said husband, the said George Turner, wherein and whereby her said husband was charged with the crime of forgery. That her said husband was not guilty of said crime and that said indictment was falsely and fraudulently procured from the grand jury of said county against her husband by the defendants for the purpose and with the intent of procuring from this plaintiff said deed of trust or other security for the payment of an alleged claim held by them against plaintiff’s said husband in said sum of $1,350, and on the day aforesaid, to-wit, October 12, 1896, the said defendant asked and demanded of the plaintiff that she should sign and execute said deed of trust upon her land above described, which was her home, and all she had to secure the .same; that upon her refusal -to comply with their demands and to sign and execute said deed of trust, the said defendants, "VY. PI. Overall and N. M. Pouch, told the plaintiff that they had in their possession extradition papers duly signed and executed by the Governor of the State of Tennessee under and by virtue of which they had full and complete authority to arrest the plaintiff’s husband, the said George Turner, and to take him back*278 to the State of Tennessee, where he would he prosecuted and convicted and sent to the penitentiary for said alleged offense, and that said defendants did then and there present and show to this plaintiff a large paper having thereupon the name of the Governor of Tennessee and a large red seal thereupon to which was attached a ribbon and which they declared was the extradition or requisition papers aforementioned, and both of the defendants then and there said to this plaintiff that un- . less she would sign and execute said deed of trust upon her land to secure the said sum of $1,350, which the defendants then claimed against her said husband, the said George Turner, they would immediately arrest her said husband and carry him back to the said State of Tennessee and would prosecute and convict and send him to the penitentiary; but that if she would sign and execute said- deed of trust as they wished and requested her to-do, they would not have her said husband arrested and prosecuted upon the charge aforesaid, and would not inform the officers of the law of- his whereabouts; that plaintiff, fearing that said defendants would carry out their said threats to have her said husband arrested and prosecuted aforesaid, and relying upon their promise that they would not have him arrested and prosecuted upon said charge of forgery and that they would not inform the officers of the law of the whereabouts of her said husband and in consideration of this promise only, she did sign her name to said deed of trust and did acknowledge the same which were done by the direction ■of said defendants, and plaintiff did afterwards deliver said deed of trust to the defendants for said purpose. Plaintiff states that when she was informed by the defendants that an indictment was pending against her said husband in which he was charged with the crime of forgery, the same was so sudden and so excited and unnerved her that she could not deliberate upon the-matter and in fact did not know what to do. That defendants observed her condition and took advantage of it under the circumstances, knowing that plaintiff was greatly confused and disturbed and that she was easy*279 to be made a' victim of their artful and importunate cunning. That defendants refused to give this plaintiff time to consult disinterested friends or counsel but they demanded that she should act, saying that if she did not act at once they would arrest and take her husband away under said papers and prosecute him as aforesaid. Plaintiff says that she was not upon equal terms under the circumstances with the defendants; that she did not know at the time and had no idea that the said charge against her husband had been trumped up by the defendants for the purpose of procuring from her the deed of trust aforesaid to secure the payment of an alleged indebtedness of her husband to them or one of them, and could not have known so unless she had ample time to think over the matter and to learn the facts in connection therewith, and defendants refused to give her any time to consider the matter or consult with friends and that under the circumstances being ignorant of the facts and greatly agitated and under the importunity of the said defendants, was entirely unable to protect herself and therefore signed and executed said deed of trust. That she was overwhelmed with the information that her husband had been guilty of forgery and on the ‘spur of the moment’ and under the importunity of defendants as aforesaid and in the hope- on her part of saving the family honor she executed the deed of trust and delivered the same to these defendants and that she had no other, further or definite consideration for doing the same than as above set forth and pleaded. Premises considered, plaintiff prays the court to annul, set aside and declare absolutely void the deed of trust aforesaid and to order and decree that the same be delivered to this plaintiff for cancellation, and plaintiff further prays the honorable court to cause the defendants to produce in court and to deliver to this plaintiff such other and further releases as may be necessary and proper in the premises to fully relieve her title from the cloud and burden cast upon it by said deed of trust and for all other proper relief in the premises. ’ ’
“Now, at this time, comes defendant, and files this, his first amended answer, and for answer to plaintiff’s petition, denies each and every' allegation therein contained, except that plaintiff, with her husband, executed the deed of trust described in plaintiff’s petition, of her own free will and accord, to secure the indebtedness of her husband as described in said deed of trust.
‘ ‘ Defendant, further answering states that on the — day of January, 1896, Robert Turner, alias George Turner, husband of plaintiff, and plaintiff were living in the county of DeKalb, in the State of Tennessee; that said husband of this plaintiff, at said date, became indebted to defendant, W. H. Overall, in the sum of seventeen hundred dollars; that at said time said husband of plaintiff, Robert Turner, alias George Turner, was in solvent circumstances, and that plaintiff had no estate of her own, except that which she acquired through her said husband; that said Robert Turner, alias George Turner, at said time put all of his available assets into cash and emigrated, with plaintiff, from DeKalb county, Tennessee, to Stoddard county, Missouri, and with the assistance of this plaintiff, concealed his whereabouts from this defendant and other creditors; that on March 12,1896, said Robert Turner) alias George Turner, purchased with his own money the real estate mentioned in plaintiff’s petition, and took the deed in the name of his wife, this plaintiff; that on October 12, 1896, plaintiff, at her own instance, and without any duress on the part of defendants, or any one for them, and without any solicitation on his part, or on the part of any one of them, but recognizing .that- defendant could move onto the assets and real estate in her hands for the satisfaction of her husband’s indebtedness to defendant, W. IT. ■Overall, executed said deed of trust described in plaintiff’s petition, to secure her said husband’s indebtedness to defendant, W. H. Overall, and to which said indebtedness said real estate was liable to be made subject. Defendant states that plaintiff was not surprised by facts concerning said indebtedness of iher husband, and that*281 she concealed the whereabouts of her said husband, Robert Turner, alias George Turner, when defendant visited him to collect said indebtedness, and that before executing said deed of trust, plaintiff had ample time to consider the proper course to pursue, and made a visit to Bloomfield, Missouri, after her interview with defendant, • and there made an effort to borrow money to discharge said indebtedness, and plaintiff had ample time and opportunity to consult counsel, while at Bloomfield, Missouri, and before making said deed of trust. Plaintiff further states that on September 7, 1897, said real estate was sold under the said deed of trust and according to its terms, James A. Evans, the sheriff, of Stoddard county, Missouri, acting as trustee, the trustee, N. M. Pouch, refusing to act; that defendant, W. H. Overall, was the best and highest bidder at said sale, and became the purchaser of said real estate, and secured the trustee’s deed therefor, and is now the owner of said real estate, and is entitled to its possession. Wherefore, defendant prays the court to dismiss plaintiff’s bill at her cost, and declare the title of said real estate in defendant, W. H. Overall, and that defendant, W. H. Overall, have restitution of said premises, and for such other and further orders, decrees and judgments as to the court may seem proper and in accordance with good equity. ’ ’
Explication.
“Now comes the plaintiff, and for replication herein, ■denies each and every allegation of new matter in defendant’s answer set out and pleaded, and again prays judgment.”
It will be observed that the vital issue, as presented by the pleadings in this cause, is as to whether the deed of trust sought to be cancelled by the respondent was executed on her part under duress; was procured through threats of the prosecution of her husband for forgery, and under the promise, if she would execute it, that her husband’s whereabouts would not be revealed. This case is not dissimilar to that of many others pre
The respondent in this cause is. a married woman, the wife of one George Turner. They formerly resided in Tennessee; before leaving that State, her husband, George Turner, become indebted to appellant, W. H. Overall. It also appears that George Turner, the husband of respondent, was charged by indictment in the State of Tennessee, with the crime of forgery. Bespondent and her husband left Tennessee and located in Stoddard county, Missouri. After respondent and her husband were located in Puxico, Stoddard county, Missouri, the Governor of Tennessee issued a requisition on the Governor of Missouri, for the husband of respondent. E. A. Fouch was named as agent of the State of Tennessee to execute the requisition. He and his brother, N. M. Fouch, armed with the requisition, set out for Missouri, the appellant in this cause, iW. H. Overall, accompanying them, as he says, for the purpose of securing his debt from George Turner, the husband of respondent. E. A. Fouch learned, so he says, through Judge Fort, that the requisition issued by the Governor of Tennessee was ineffective to secure the arrest of George Turner, without its first being presented to the Governor of Missouri, in order that he might issue the proper authority for the arrest of the husband of respondent. This agent, so far as the record discloses, did not attempt to' have his requisition honored by the Governor of Missouri. On October 10/1896, the two Fouch brothers and appellant, Overall, went-to the house of a Mr. Puckett; Mrs. Turner was there. It is here where the conflict of testimony appears. As we are called upon to pass upon the action of the trial court in entering the decree in this cause, we here insert a portion of the testimony (the most important part) of Mrs. Turner and George Turner.
Mr. Turner testifies that he first saw the defendants after removing from the State of Tennessee to the State of .Missouri in Puxico, Missouri; that at the time the defendants were in Puxico, Missouri, he was “ ‘kindo’
He also says that Overall claimed that he (Turner) owed him $1,600. Then this question was asked Mr. Turner:
“Q. Did you owe him [Overall] $1,600 at that time? A. No, sir.
‘‘Q. How much did you owe Overall at that time? A. About $850.
‘£ Q. Did Mr. Overall in that conversation admit to you that $850 was all that you owed him? A. Yes, sir.
‘ ‘ Q. I will get you to state to the court how much you paid him? A. I paid him $250 in money and gave him a note for $1,350.
‘ ‘ Q. Just state how you came to give him $250 in money and á note for $1,350, when you only owed him $850. A. He said he had a paper to carry me back to Tennessee, if I did not pay him $1,600.
“Q. What did he say he would do if you would pay him $1,600 ? A. ' He said he would go back to Ten- • nessee and make things e.asy and there would be no further prosecution.
‘ ‘ Q. What did Mr. Overall say that Mr. Pouch had the papers for, or what did he say they wanted you back in Tennessee for? A. He did not say they wanted me back in Tennessee for anything, but said if I did not pay him the $1,600 he would take me back there.
“Q. What did Overall say he would do if you would settle with him according to his terms ? A. He said that if I would settle with him according to his terms he would not take me back and would keep everything quiet and that I would not be prosecuted or have any further trouble about it.
‘ ‘ Q. State to the court whether you executed this note of $1,350 and paid him $250 in money because he promised you that if you would do so he-would see to it*284 that you were not prosecuted? A. That is the only reason I paid him the money and made him the note. ’ ’
Mrs. Novella Turner testified as follows:
‘ ‘ Q. What relation are you to the witness, George Turner? A. I am his wife.
“ Q. Where did you move from when you came to Stoddard county? A. Prom Tennessee — DeKalb county.
‘ ‘ Q. Did you furnish any part of the money that bought the piece of land described in this suit ? ' A. No, sir.
‘ ‘ Q. Did you know at the time that this deed to this piece of land was madejo you that your husband George Turner was indebted to parties in DeKalb county, Tennessee. A. Yes, sir.
“Q. What was your object in having the deed made to you and in your name? A. Well, in order that if my husband should die in the meantime and fail to pay the debt that I would have a home.
“Q. Now, Mrs. Turner, just tell the court in your own words, as near as you can, every word that passed between you and Mr. Overall, and you and either one of the Pouches in the presence of Overall, at that time and place ? A. • He asked me • about my health and I told him my health was bad and had been for several months past, and he also spoke to me about -looking bad and excited; then he asked me where my husband was. I told him I did not know. He then said he came for my husband and had a requisition signed by the Governor of Tennessee and by the- Governor of Missouri, and had the privilege of taking him back to Tennessee handcuffed and would imprison him for forgery, as there were seven indictments against him for forgery, and said that his mother had caused one of them to be found. I told him that I did not know anything about it. He asked me if the land, was in my name. I told him it was. He said that he had come to collect some money that my husband owed him and asked if my husband had any money. He asked me if my husband did not have quite a lot of stock as well as land.
*285 “Q. Did he show you any papers at that time? A. Yes, sir. He said that Mr. Eoueh had a requisition signed by the Governor of Tennessee and also by the Governor of Missouri. Mr. Eoueh then took the papers from his pocket and I saw the seal and saw that they were papers, of that kind.
"Q. Give a description of the papers that Mr. Pouch showed you and which he took out of his pocket? A. They were large papers bearing the signatures of the Governor of Tennessee and the Governor of Missouri; the paper also had a large red seal and a blue ribbon stamped on the same.
"Q. Now, did Mr. Overall point to these papers - and say that they were papers authorizing them to take your husband back to Tennessee? A. Yes, sir.
"Q. Did they arrest and take your husband back at that time on those papers? A. No, sir.
" Q. What did Mr. Overall say about the .number of indictments against your husband? A. He said there were seven indictments against him.
"Q. What did he say he would do with your hus'band if you would fix up the claim? A. He said he would go back satisfied and would conceal the whereabouts of my husband.
"Q. What did Mr. Overall say about having the proceedings stopped against your husband? A. He said he would have them stopped and there would be no further trouble.
"Q. Mrs. Turner, you of course know whether you executed that deed of trust willingly or unwillingly? A. I thought that was all that I could do to keep my husband from being carried back to Tennessee handcuffed and imprisoned.
"Q. Did you execute it voluntarily? A. No, sir. '
"Q. I will get you to state to the court if it was not your purpose in taking a deed to this piece of land in your name to keep Mr. Turner’s creditors from getting the land? A. Yes, sir.
*286 “Q. I will get you. to state to the court if after-wards your husband was arrested and taken to Tennessee? A. Yes, sir.
“Q. State if they did not dismiss the prosecutions against your husband when he got there ? A, Yes, sir.
“Q. "What was the condition of your health and strength at the time you first met Mr. Overall at Puxico and what had been the condition of it for months previous to that time? A. My health was bad and had been for six months previous to that time and I was in bed when they came. •
‘ ‘ Q. And you say that Mr. Overall remarked that you looked very bad and weak when he began talking to you? - A. Yes, sir.
“Q. If you have any reasons to give or explanations to make why you did not employ an attorney when you went to Bloomfield, you may make that explanation? A. I thought all I could do was to give the deed of trust or they would carry my husband back to Tennessee,- and I did not think that consulting an attorney would change the minds of these men. ’ ’
George Turner recalled.
“Q. You may state what became of the prosecutions against you when you were taken back to Tennessee, if you know? A. They were dismissed and I paid the costs. ’ ’
The deed of trust was introduced on the part of the appellant, and he testified, plainly contradicting every statement made by the respondent. That is to say, he contradicted all of her testimony which is important to her right of recovery, and states that the deed of trust was executed willingly and voluntarily and that he held out no inducements or promises for its execution. The appellant’s testimony is fully corroborated by E. A. and N. M. Pouch, both of whom make about the same statements as to the execution of the deed, as the appellant does. It was admitted that plaintiff had the legal title to the land in controversy at the time of the execution of the deed. There was other testimony, but as it was
Upon the evidence as indicated herein, the cause was submitted to the court and it found the issues for the plaintiff, and entered its decree cancelling and holding for naught the deed of trust executed by the plaintiff. From this decree, defendant appealed to this court, that the alleged assignment of errors might be reviewed.
Opinion.
Appellant’s assignment of errors are:
1. The court erred in admitting testimony tending to impeach the validity of the indebtedness when there are no allegations in the petition charging that the indebtedness was not correct and just.
2. . The verdict and judment was against the decided weight of the testimony and against the law.
The Issues.
1. Was the deed of trust obtained by duress and threats of arrest and imprisonment of respondent’s hus- ■ band?
2. Did appellant promise respondent he would not prosecute her husband if she would sign the deed of trust, and was the execution of the deed illegal and against public policy?
It will be observed that the appellant, in his assignment'of errors, directs the court’s attention to the complaints he desires reviewed and, in addition, plainly sets forth the issues involved in this controversy. As was very appropriately said by Sherwood, J., in case of Lins v. Lenhardt, 127 Mo. l. c. 280, “this cause is, to a large extent, a fact case.” The learned judge in that case further says, “When an equity cause comes up to this court, it is for hearing de novo, and it will be considered, for the most part, as if it originated here and was to be heard for the first time. ’ ’
The first assignment of error, “that the court erred in admitting testimony tending to impeach the validity
The second assignment of error is of more importance, because the result of our conclusions upon that assignment settles this controversy.
Learned counsel for appellant very ably presents in his brief the legal principles by which controversies of this character should be measured. The doctrine- announced in the numerous cases cited is not in dispute.. After going over the entire field, it must be remembered, we are led back to the one proposition, and that is, did the testimony in, this cause support the conclusions reached by the chancellor in his decree?
We take it, and doubtless it will not be seriously disputed, if the testimony offered by respondent is to be 'believed, then the judgment of the lower court was right and supported by every principle of equitable jurisprudence.- On the other hand, if the testimony offered by the appellant is to control, then this cause should be reversed. If plaintiff, Mrs. Turner, was deprived of her free will and agency in the execution of the deed of trust, by the action and conduct of the appellant and those who were acting with him, in respect to the arrest and prosecution of respondent’s husband, this was duress in contemplation of law, of such character as to avoid her deed. [Hensinger v. Dyer, 147 Mo. 219" court="Mo." date_filed="1898-12-20" href="https://app.midpage.ai/document/hensinger-v-dyer-8013027?utm_source=webapp" opinion_id="8013027">147 Mo. 219.] In case of Bell v. Campbell, 123 Mo. 1" court="Mo." date_filed="1894-06-12" href="https://app.midpage.ai/document/bell-v-campbell-8011383?utm_source=webapp" opinion_id="8011383">123 Mo. 1, there is quoted
Before proceeding to discuss the testimony in this cause, it would be well to merely mention what we deem the correct rule as to the admission of testimony in equitable cases of the character of the one presented to us for our determination. Great latitude must necessarily be allowed in the investigation of cases like the one at bar. All the acts and declarations of the parties tending to throw any light upon the issue should be admitted. As is said by the counsel for respondent, £ 1 actions speak louder than words. ’ ’ , Conversations may apparently be immaterial, yet if they show the tendency of the mind as to the subject before the court, they should be received. With these elementary principles before us, we are led to 'the investigation and discussion of the testimony in this -cause.
We will say at the outset, that we have carefully read in detail the entire testimony in this cause. If the simple words of the testimony are to be considered, the evidence greatly preponderates on the side of the appellant; but, on the other hand, if the situation of the parties, the acts of the appellant and those in company with him, the.entire surroundings of the transaction when it was consummated and the final results of the transaction, with all proper and legitimate inferences to be drawn from such acts and surroundings are considered, then the preponderance of evidence is with the plaintiff, Mrs. Turner. Preponderance of evidence does not necessarily mean the greatest number of witnesses ; but it means that character of evidence, full of strength and weight, which when it is all considered, is stamped with strong and reasonable probability of
It further appears in the testimony of Mr. Overall that he says that Mrs. Turner “says she signs it [meaning the deed] freely and voluntarily on her part. What necessity was there for her to make these statements, if nothing had been said to induce her to sign-it? One of the Pouch brothers says that in the conversation at Puckett’s, Overall asked plaintiff to pay this debt. That he came at the suggestion of an attorney; that he came to give her a chance to settle without any cost. Why did he say this to this woman — she did not owe the- debt? This sort of talk would indicate to any intelligent mind that the appellant was there, knowing-that this woman owned the land, to get her to secure this debt. And from his anxiety to accomplish his purpose,, we take it, from the facts disclosed in the record, that he was not very conservative in his inducements held, out on that occasion.
As to the relevancy of Turner’s testimony we will say, as heretofore stated in this opinion, that the appellant created this issue by his answer, and is in no position to object to testimony being offered upon it, and it is competent and relevant, independent of the issue as to the validity of the debt, because it is as to declarations of the appellant indicating the appellant’s determination to have the debt secured and further as tending to show the methods .to be adopted in order to obtain the security for the debt desired.
It is further urged that, if respondent executed the deed of trust to prevent her husband from being taken back to Tennessee or for concealing his whereabouts, she and appellant are “in pari delicto” and therefore can not recover. This contention is fully answered by the cases of Bell v. Campbell, 123 Mo. 1" court="Mo." date_filed="1894-06-12" href="https://app.midpage.ai/document/bell-v-campbell-8011383?utm_source=webapp" opinion_id="8011383">123 Mo. 1, and Green v. Corrigan, 87 Mo. 359" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/green-v-corrigan-8008508?utm_source=webapp" opinion_id="8008508">87 Mo. 359. They were not on equal footing and do not fall within the denunciation of that maxim.
Complaint is also made by appellant that plaintiff has no right to be heard in this proceeding, because the
All the circumstances, the condition and situation of the parties, corroborate the testimony of the respondent.
The trial court had the plaintiff and her husband before it; had the depositions of the witnesses offered by appellant and all the other testimony offered in the cause, and from all the evidence offered reached the same conclusion, as is fully indicated in the decree, and its judgment will be affirmed.