Connecticut Life Insurance v. McCormick

By the Court, Rhodes, J.: Action to foreclose a mortgage. The mortgaged premises are the separate property of Mrs. McCormick,- the wife of Thomas J. McCormick. Mrs. McCormick alleges in her answer that her husband, while the agent of the plaintiff, feloniously converted to his own use between four and five hundred dollars of the money of the plaintiff; that the plaintiff caused him to be arrested and imprisoned on the charge of embezzling said money; that, while he was under arrest, the notes and mortgage in suit were executed and delivered; that the only consideration therefor was the release of her husband from arrest and his discharge from further prosecution; that, while under arrest, her husband beggéd her to sign the mortgage, “ representing to her that it was the only thing that would save him from the State Prison; that she thereupon signed the said mortgage, but at the same time persistently declared to M. C. Dufficy, the Rotary Public, that she did not execute said mortgage freely and voluntarily, and avers that she never acknowledged to said Rotary that she executed the same freely and voluntarily.”

The Court ordered judgment to be entered for Mrs. McCormick, on the ground that she had not executed the mortgage freely and voluntarily.

[582]The evidence shows that the mortgage was executed to secure the payment of th,e promissory notes of her husband; that the notes were given for the payment, one year after date, of the sums of money which he then owed the plaintiff ; and that said notes and mortgage were not executed in consideration of his release or discharge from arrest or prosecution.

The evidence leaves no doubt that Mrs. McCormick duly acknowledged the execution of the mortgage. She at first declared that she had not executed it freely and -voluntarily; but after conversing with her husband’s attorney, she made the requisite' acknowledgment. If her husband’s attorney did, as she testifies, promise that he would see the mortgage paid, neither such promise, nor' the failure to perform, it, would impair the acknowledgment.

It is alleged in.the answer, as already mentioned, that her husband caused or induced' her to execute the mortgage, by the representation that if she would not sign it he would have to go to prison. Conceding that such representation was—as the Court below held—false, and that such representation amounted to compulsion or undue influence of the husband, still, if she duly acknowledged the execution of the mortgage, she cannot avoid it on the ground of compulsion or undue influence of her husband, unless at the time of the acknowledgment she also acted under the fear, compulsion, or undue influence of her husband. This is the rule where, as here, the mortgagee is without notice of the alleged compulsion or undue influence; but it is unnecessary to say whether the rule extends further. The acknowledgment may be procured by the compulsion or undue influence of the husband, and, indeed, the same compulsion or undue influence under which the mortgage was executed may extend also to its acknowledgment. But if that ground is relied upon, it must be alleged, where as here, the mortgagor seeks" to show the invalidity of the mortgage. The