38 Kan. 86 | Kan. | 1887
Opinion by
This action was instituted by the plaintiff in error, to recover judgment against Alanson S. Reser and Emma Reser his wife, on a certain note of $1,000, executed on the 2d day of January, 1879, to Frank W. Proctor, and assigned to the plaintiff in error, and to foreclose a mortgage, given to secure the payment of the note, on the homestead of Alanson Reser and wife, in Marshall county. The defendant, Alanson S. Reser, filed his separate answer, denying that he ever executed the note of that date to Prank W. Proctor, or that he ever had any knowledge of the existence thereof until the commencement of this action. He further .averred, that about the time the mortgage attached to the plaintiff’s petition appears to have been executed, he, without reading the same, but upon the representations of the plaintiff ■that it was additional security for a note of $2,000 to Frank W. Proctor, did sign and acknowledge what he understood to be a mortgage upon the said described real estate; and averred that the real property described in said mortgage was a home
Emma Reser filed her separate, verified answer, by which she denied that she executed the note, but stated that she signed a paper upon the representations of the plaintiff in error that, it was a chattel mortgage. She averred that the real property described in the mortgage sought to be foreclosed in this action was the homestead of her husband and his family.
The case was tried by a jury. There were special findings, and a judgment for the amount of the note with interest, with a finding and decree that the mortgage was fraudulent and void. A motion for a new trial was overruled, and the caséis here with all exceptions saved. The effort of counsel for plaintiff in error is, to show that the court below erred in overruling their motion for judgment on the special findings-of the jury. They also complain of the refusal of the court to submit special interrogatories to the jury, and of the refusal to give instructions Nos. 1, 2, 5, 6, 7, and 8. A brief statement of the material facts is necessary, to fully comprehend the questions discussed by counsel, and appreciate their importance in the case. James S. Warden, the plaintiff in error, was a resident of Irving, Marshall county, until in June, 1878, he removed to Frankfort, a town a few miles from his former-residence, in the same county. He was engaged in the banking business. Alanson Reser, with his wife and family, lived all this time on a farm, about nine miles from Frankfort, and was engaged in the cattle business. Reser had been doing business for several years before the execution of the note and mortgage in controversy at Warden’s bank in Irving and Frankfort, borrowing money for his cattle transactions, and executing notes and chattel mortgages. The note and mortgage sued on were executed on the 26th day of February, 1879, before the plaintiff in error as a notary public, but both note and mortgage were dated on the 2d day of January, 1879.. The difference in the date and time of execution is explained by Warden in his testimony as being done by the agreement of parties to cover interest due on Reser’s paper, for which
Reser swore that he left home about four o’clock in the afternoon of February 26th, to go to Frankfort to get medicine for a sick child; that arriving there he had to wait several hours for the return of the doctor, who had gone to the country; that some time after dark he was passing the bank, when Warden called him in, locked the door, and demanded of him a mortgage on his homestead to protect him against a certain note and chattel mortgage of $2,000; that Warden was very angry and threatened his life, and threatened to send him to the penitentiary for selling mortgaged property; and that, influenced by these threats, he signed the mortgage, but did not sign any note, nor was he urged or requested to do so. Warden instructed him not to say a word to his wife about the mortgage, and prepared to go home with him, procured his team, and they started to his house, nine miles away; the night was dark and cold; arrived at his house as late as ten o’clock; they both went in and found Mrs. Reser nursing the sick child; Warden spoke pleasantly to her, told her that he and her husband had made an agreement about the extension of the time for the payment of the $2,000 note and mortgage, and wanted her to sign a new mortgage in renewal of the old one. Mrs. Reser assented to this, and signed, while Reser, who had taken the child, was walking the floor with it in his
Mrs. Reser told substantially the same story as to what occurred at the house; admitted signing a mortgage, but trusted to the representations of Warden, and believed at the time she did sign the paper, from what Warden told her, that it was a renewal of a chattel mortgage for $2,000 that she had signed some time before.
Tending in some degree to support the statements of Reser, the testimony of Robert Smith, a farmer near Frankfort, is to the effect that he had a conversation with Warden about the time of the execution of this mortgage, in which Warden said, (referring to a former conversation about Reser’s indebtedness to him, and Smith’s expression of opinion that it would not be paid:) “Bob, I got that all right; I got a real-estate mortgage to secure that property; Mr. Reser has been selling mortgaged property.” Smith then remarked: “Jim, us fellows have been buying that property for some time; you have been telling us to go over there — that it was all right.” Warden said, “Reser couldn’t prove it.”
The jury were requested to render a special verdict, and not a general one, and in answer to special questions submitted by the court, they found as follows: that the defendants, Alanson S. Reser and Emma Reser, did execute the note of date January 2, 1879, on the 26th day of February, 1879, and delivered the same on that day to James S. Warden.
“Ques.S: Did the defendant, Emma Reser, execute and deliver the said mortgage of date January 2,1879, on February 26, 1879, as a mortgage on said described land to secure the payment of note to Frank W. Proctor, for $1,000 of said date, or was the same signed by said Emma Reser on February 26, 1879, upon the belief only, induced by the representation of said James S. Warden, that the same was a chattel mortgage on renewal of another preexisting note to James S.*92 Warden? Ans.: As a chattel mortgage, upon the representation of James S. Warden that it was a renewal of a preexisting note.
“Q. 4. Did the defendant, Alanson S. Reser, on said February 26, 1879, execute and deliver the said described mortgage instrument to secure the payment of a note of $1,000 to Frank W. Proctor of said date; or was the same signed by Alanson S. Reser on February 26, 1879, upon the belief only, induced by the representations of said James S. Warden, that the same was additional security to Warden only, upon his indebtedness to. Warden? A. To secure the note of Frank W. Proctor, of $1,000.”
The jury found that the land described in the mortgage was before, at the time, and since the execution and delivery of the mortgage, the homestead of Reser, occupied by his wife and children; that Frank W. Proctor indorsed and delivered said note to James S. Warden, and at the time of the commencement of this suit Warden was the owner and holder of said note and mortgage, and the real party in interest therein; that when the defendants executed and signed said mortgage, they could, in the exercise of reasonable and ordinary prudence, have fully known the contents thereof, but they signed on the representation of James S. Warden; that neither Reser nor his wife attempted to read or asked to have read the said mortgage, before they signed the same.
When the special verdict of the jury was returned into court, the plaintiff in error filed his motion for judgment and decree on the pleadings and findings, asking that the mortgage of the plaintiff in error be decreed to be a second lien on said real estate, it being conceded that the mortgage of the defendant Anthony Reser was the first lien. This motion was overruled, so far as the lien was concerned, the court being of the opinion that the mortgage was void. This ruling is one of the principal grounds assigned for error and reversal, and its determination necessarily involves a consideration of all the material facts in the case. The jury found every material fact in the case as alleged by tlie plaintiff in error, except as to the procurement of the signature of Mrs.
It is now claimed that this state of facts raises the question whether or not a person who can read and write, and has the opportunity of knowing the contents of a paper which he is about to sign, can rely on the representations of any person as to its contents, and thereafter claim that such representations were false ? It ought to be stated that a fair inference from the evidence of Mrs. Eeser is, that she is an intelligent woman, who seemed to have possessed knowledge of her husband’s business, and on several occasions demonstrated more capacity to protect his interests than he did. She can write, and it is very clearly proved, circumstantially, that she can read. What was her duty in the premises; and what are the legal consequences of her failure to perform it ? It is said that there was a relation of peculiar trust and confidence between Mrs. Eeser and Warden in such matters. He had been her husband’s banker and partner, and everything had been satisfactory. Why should she not trust ? This is assuming too much even for argumentative latitude, because if it is true that everything had been satisfactory up to that time, it is a very strong presumption that the facts of the procurement of her signature are as Warden claims them. But there was no such relation existing by virtue of these facts, from which the law will imply that Mrs. Eeser had a right to rely on the representations of Warden. Even if her husband had made such a representation, and she relied on it, and at no time asked for the mortgage to be read, it was at her peril alone. (Roach v. Karr, 18 Kas. 534.) In this case the proof showed
The case of Roach v. Karr is one in which the mortgage was made directly to Karr, who brought the action to foreclose. Karr was the payee of the note and mortgage, and there is no question of an innocent third party. The case at bar is one in which Reser and wife executed a note and mortgage to Proctor, but it was for the benefit of James S. Warden in fact. And he was the notary before whom the acknowledgment was taken, but no question is made on. the record as to his duty as a notary.
Ort v. Fowler, 31 Kas. 478, is an interesting case on -the question of the negligence of Mrs. Reser in signing the mortgage without reading it or requiring it to be read to her, and it cites many authorities; but all of them that we have examined are controversies between the maker and an innocent holder before maturity, without notice of the imperfections, the case of Ort v. Fowler being of that character.
“A mortgage of the homestead, to be of any validity, re" quires that the 'joint consent’ of both the husband and wife should be given thereto; and this consent must not be brought about by any fraud, deception, or misstatement of material facts by the other party to the alienation, but must be the voluntary and intelligent consent of both the husband and wife.” (Bird v. Logan, 35 Kas. 228.)
In this case it is said: " These misapprehensions were induced and brought about by Adams, [the notary,] who was evidently acting as the plaintiff’s agent,” and this was a suit to enforce specific performance of the conditions of a bond, for a deed of the homestead, signed by the husband and wife, and acknowledged before a notary.
We are compelled to say, in accordance with oft-repeated declarations of this court, on the findings of the jury on controverted questions of fact, that there is no error in the record so material as to cause reversal; it is therefore recommended that the judgment be affirmed.
By the Court: It is so ordered.