Sawtelle v. Muncy
Before: Searls
Synopsis
Mortgage—Foreclosure—Defenses—Want of Consideration—Fraud —Menace—Findings—Conflict of Evidence.—In an action to foreclose a mortgage, where the answer pleaded as defenses a want of consideration for the note and mortgage, and that the same were procured by false and fraudulent representations of the plaintiff, and by menace of a criminal prosecution, without which fraud and menace they would not have been made or executed, and there were no witnesses upon the trial other than the parties to the action, and the court, accepting the testimony of the defendants, which supported the answer, and rejecting the uncorroborated testimony of the plaintiff to the contrary, found that each of the defenses was true, the findings cannot be disturbed upon appeal for insufficiency of evidence; and the defense of want of consideration being supported, it is immaterial whether the fraud or menace was sufficient to defeat the note.
Id.—Husband’s Note—Wife’s Mortgage—Validity of Note Essential to Foreclosure—Defense of Husband—Default of Wife.—Where a wife mortgaged her separate real property to secure a note of the husband, the establishment of the validity of the note against the husband is an essential predicate to the foreclosure of the mortgage; and where, upon the husband’s defense, the note fails for want of consideration, the plaintiff has no claim to be satisfied out of the wife’s property, notwithstanding she may have made default in the action, and without regard to whether her default is waived or not.
Id.-—Waiver of Wife’s Default—Subsequent Pleadings not Objected to—Trial upon Merits.—The default of the wife is waived, where, subsequently thereto, she interposed pleadings which were not objected to, and by going to trial against her upon the merits.
Searls, C. Action to foreclose a mortgage executed by R. E. Muncy and Sadie E. Muncy, his wife, to secure the payment of a promissory note for $1,295, made by R. E. Muncy September 7, 1888, and payable on or before two years after date, with interest at ten per cent per annum. Defense, want of consideration, menace, and fraud. Defendants had judgment. Plaintiff appeals from the judgment, and supports his appeal by a bill of exceptions. The cause was tried by the court without a jury.
The findings show that the note in suit was made without valuable, consideration; that the note and mortgage were procured by false representations on the part [437]of plaintiff and by menace, consisting of threats of a criminal prosecution against defendant B. E. Muncy, and of consequent injury to his character, and that the mortgage was executed by defendants, and each of them, under the influence of such menace, and would not otherwise have been made or executed.
Appellant contends that the findings are not supported by the evidence, and specifies various particulars in which the evidence fails to support the several findings. For the sake of brevity we shall consider the objections together. The evidence may be epitomized as follows:
Plaintiff introduced the note and mortgage, and rested. Defendant B, E. Muncy testified that he contracted to purchase the mortgaged premises in May, 1887, from one Moses Bollinger, and introduced the contract, consideration $652.51. When the last payment was made defendant had the deed made to his wife, Sadie E. Muncy.
After defendant had contracted land rose in price, and he made a contract with one Townsend to sell him the same land at say $200 per acre; $200 or $300 was paid as a bonus, and the residue of say $7,500 was to be paid at a specified time, or the bonus to be forfeited. Townsend was in default for a year or so, and went into insolvency.
About the date of the note and mortgage, plaintiff came to this defendant, and represented to him that he had received a note from Townsend for say $1,250, secured by an assignment of the Muncy contract for the sale of the land; that in conveying the land to his wife B. E. Muncy was guilty of a crime, and unless he fixed it up at once, and “ no fooling,” he would institute criminal proceedings against him. Defendant’s wife was in a delicate situation; he had recently come to the state and engaged in business, and, fearing the effect of a prosecution, was induced to give the note and mortgage. Defendant’s wife corroborated the evidence as to threats by plaintiff of a criminal prosecution, etc.
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