Mack v. Prang

The following opinion was filed June 22, 1899: WiNslow, J. It is admitted that this was a mortgage given by the wife upon her own property to secure the debt of her husband, but it is claimed by the appellant that there was not sufficient evidence to establish the defense of duress. We cannot agree with this contention. The defendant William had been for several years a traveling salesman for Herman S. Mack, the original mortgagee, and was short in his accounts to the amount of $5,000. The evidence of both Mame and William Prang was to the effect that both Mack and his bookkeeper personally came to see Mrs. Prang, 4nd •threatened to prosecute William for embezzlement, and send him to jail, unless she would give the mortgage; that she at first refused, and that they gave her a day or two to think the matter over; that she was greatly excited and alarmed ■at these threats, and had fainting spells both before and after she executed the mortgage, and that she only executed it to prevent her husband being sent to jail. It is true, this testimony was substantially contradicted by Mack and the bookkeeper, but we cannot say that the findings on this point were against the weight of the evidence. Pacts substantially -similar to these have frequently been held to constitute du [5] ress which renders voidable a security or contract executed under their influence. McCormick H. M. Co. v. Hamilton, 73 Wis. 486; City Nat. Bank v. Kusworm, 88 Wis. 188, and cases cited in opinion. It is true that the will of the person making the contract must be overcome so that the1 act is not his voluntary act, but that fact is found in the present case, and upon evidence which we think sufficient. Nor is this doctrine in any way in conflict with what was said by this court in Wolff v. Bluhm, 95 Wis. 257. That was a case, as distinctly stated in the opinion, -where the evidence showed that the will was not overcome, and the party acting under the alleged duress was free to act as he chose, and only acted after consulting his friends and neighbors. It was also there said that in order to constitute duress “ the threat must be of such a nature, and made under such circumstances, as to constitute a reasonably adequate cause to control the will of the threatened' person,' and must have that effect, and the act sought to be avoided must be performed by such person while in such condition.” The fact of duress being found upon sufficient evidence, two further questions require consideration, namely: Was the plaintiff a bona fide holder ?• and, If so, does such fact cut off the defense of duress ? The court below found that the plaintiff was a bona fide holder before due, and this was plainly correct. The facts were these: Herman Mack and Bertha Mack, the plaintiff, were joint guardians of Alma Mack, an infant. Herman received $10,000 of the property of Alma, and in December, 1894, was in failing circumstances and unable to account for it. Thereupon he resigned his guardianship, which resignation was accepted by the county court, leaving Bertha sole guardian. After resigning, he turned over this note and mortgage to Bertha, who received it in payment pro-tanto, at its face value, upon Herman’s indebtedness to his ward. It had not matured when thus sold to Bertha. No reason is perceived why the remaining guardian might not [6] receive tbe mortgage in payment of the former guardian’s liability to the ward,— at least, to the amount of its actual value. A transfer of negotiable paper before due in payment of a pre-existing debt constitutes the purchaser a Iona, fide holder. Shufeldt v. Pease, 16 Wis. 659; Kellogg v. Fancher, 23 Wis. 21. There is some conflict in the authorities upon the question whether the defense of duress by threats can be successfully urged against a Iona fide holder for value of negotiable paper, but the better opinion and weight of authority is that such defense stands upon the same footing as other defenses which may be made as between the original parties but are c.ut off when the paper reaches the hands of a bona fide holder. Fairbanks v. Snow, 145 Mass. 153; Farmers' & M. Bank v. Butler, 48 Mich. 192; Clark v. Pease, 41 N. H. 414; Beals v. Neddo, 1 McCrary, 206; Martineau v. McCollum, 3 Pin. 455; 4 Am. & Eng. Ency. of Law (2d ed.), 334. Duress which consists of threats of imprisonment of a husband or a child is a species of fraud, which renders the contract made under its influence voidable only, and not void. City Nat. Bank v. Kusworm, 91 Wis. 166. If it be simply a voidable contract, then it follows naturally that, when the contract consists of negotiable paper, the defense is cut off by transfer to a. bona fide purchaser before maturity, in the same manner that other defenses upon the ground of fraud are cut off. The conclusion is that the plaintiff was entitled to a judgment of foreclosure notwithstanding the duress. By the Oourt.— Judgment reversed, and action remanded with directions to enter the usual judgment of foreclosure and sale. A motion for a rehearing was denied September 26,1899. As to contracts procured by threats of prosecution of a relative, see note to City Nat. Banh v. Kusworm (88 Wis. 188), in 26 L. R. A. 48; also Loud v. Hamilton (Tenn.), 45 L.R. A. 400.— Rep.