
    CORBETT v. CLUTE.
    (Filed March 21, 1905).
    
      Cancellation of Mortgage — Illegal Consideration.
    
    A note and mortgage will be cancelled when it is shown that the sole consideration and inducement for signing the same was an agreement and promise on the part of the mortgagee to forbear and suppress a criminal prosecution for an alleged felony against the son of the mortgagor and the threat to prosecute unless they were executed.
    ActioN by M. J. Corbett against Nancy Clute and others, heard by Judge Q. S. Ferguson and a jury, at the February Term, 1904, of the Superior Court of Sampson County. This was an action to foreclose a mortgage. From a judgment for the defendants, the plaintiff appealed.
    
      
      E. K. Bryan and Grady & Graham, for tbe plaintiff.
    
      J. D. Kerr and F. B. Cooper, for the defendant.
   Hoke, J.

Tbe plaintiff declared on a note for $275 dne January 1, 1900, and a mortgage to secure tbe same on tbe land described in tbe complaint. Tbe defendant admitted tbat sbe executed both tbe note and tbe mortgage, and by way of defense alleged tbat sbe was never indebted, bexself, to tbe plaintiff in any sum, and tbat ber signature to tbis instrument was procured by tbe plaintiff’s agent, and at tbe time sbe signed tbe same tbe said agent said to ber in .substance that Theodore Clute, tbe son of tbe defendant, was indebted to tbe plaintiff in tbe sum of $275 and bad obtained said amount in goods, wares, merchandise and money by false pretense, and tbat if tbis defendant did not execute tbe said note and mortgage, tbe plaintiff would institute criminal proceedings against Theodore Clute and would send him to the penitentiary under said proceedings; tbat tbe defendant, being old, feeble and inexperienced in business affairs and greatly excited and alarmed by said false statements and threats, and being urgently pressed by said agent and attorneys, who refused to allow tbis defendant to investigate the matter, stated to ber, and without consulting’ counsel, signed said note and mortgage, as shé was then made to believe, in order tbat sbe might save ber son from criminal prosecution under tbe threats' and charges, but having received no valuable consideration from tbe plaintiff. Tbe defendant further answered tbat tbe sole and only consideration for the note and mortgage was the agreement and promise on the part of tbe plaintiff to forbear and sup press a criminal prosecution in tbe courts of this State for a felony, to-wit, “false pretense,” against ber son, and tbe threat to prosecute her son for such felony unless sbe executed said note and mortgage, and the promise and agree-meat aot to prosecute 'if sbe did execute the same was the sole and only inducement and consideration for signing and executing said note and mortgage, and she is advised and believes that said note and mortgage are void, and prays that they be cancelled.

The following issue was submitted to the jury upon the pleadings: “Did the plaintiff by his agent represent to the defendant, Nancy Olute, that her son, Theodore Olute, was guilty of an offense which would send him to the penitentiary, and did the plaintiff threaten to prosecute her said son for such offense if she did not sign the note and mortgage, and did she sign the note and mortgage to induce the plaintiff not to prosecute said son for such offense, and did the plaintiff agree not to prosecute her son in consideration of her signing said note and mortgage?” On this issue the plaintiff presented the note and mortgage and the defendant offered evidence tending to establish the allegations of the answer. The Court charged the jury that the burden was on the defense to satisfy them by the greater weight of the evidence before they could answer the issue “Yes.” In other words, if tire evidence failed to satisfy them that the plaintiff agreed not to prosecute her son on the defendant’s signing the note and mortgage, it was their duty to answer the issue “No.” If the defendant had satisfied them by the evidence that the plaintiff through his agents did threaten to prosecute the defendant’s son for a penitentiary offense unless she executed a note and mortgage, and agreed that if she executed a note ,and mortgage he would not prosecute him, and she signed the note and mortgage to save her son from being prosecuted for a penitentiary offense, or an offense which she was made to believe from the representations of the plaintiff’s agent was a penitentiary offense, it was their duty to answer the issue “Yes.” Under the charge of the Court the jury answered the issue “Yes.”

During tbe progress of the trial, the plaintiff noted material exceptions as follows: At the close of the defendant’s testimony- the plaintiff moved for judgment, which was refused, and the plaintiff excepted. Plaintiff then rested, and moved for judgment on the entire testimony. This was refused and plaintiff again excepted. Plaintiff then requested the Court to charge the jury that if they believed the evidence they would answer the issue “No.” This was refused and plaintiff excepted. On the rendition of the verdict the plaintiff moved for judgment on the verdict, which was refused, ,and plaintiff again excepted.

All these exceptions were evidently made with the design of presenting the one question, whether upon the pleadings and entire testimony the defendant had made out a case sufficient to invalidate the plaintiff’s note and mortgage. The plaintiff takes the position that the'defendant’s case should be made to turn on the question of duress, whether the papers presented against her were signed by her willingly,' or whether she was so wrought upon by her fears aroused by the threats against her son that she was no longer a free agent in the execution of these papers. The plaintiff presented an issue addressed to this view of the defense — faulty it is true, because it was evidential only, and not at all determinative, and the argument and authorities cited by counsel on this appeal are all addressed to this same phase of the defense. The position is forcibly presented, and we have grave doubts if the evidence is sufficient to support the allegations of duress.

We are not called on, however, to determine this question, because we do not think the defense can be so confined, nor that the cause was tried on this feature of the answer at all.

There is in the defendant’s answer a complete defense stated, that the only consideration of the note and mortgage was the agreement and promise on the part of the plaintiff to forbear and suppress a criminal prosecution in tbe courts of this State for felony, to-wit, a false pretense against ber son, and tbe threat to prosecute ber son for said felony, etc., and tbe promise and agreement not to prosecute was tbe sole and only consideration and inducement for tbe signing of tbe note and mortgage. Tbe issue, while containing some matter by Avay of inducement, has this question presented in clear and unmistakable terms, and tbe answer decides it against tbe plaintiff. There was evidence, too, supporting this defense and sufficient to warrant tbe verdict.

Tbe defendant herself testified (at tbe time tbe note and mortgage were executed) that “the plaintiff’s agent told me that my son bad committed a penitentiary offense, and, without satisfaction, they would put tbe law to him to tbe fullest extent.” Mrs. Z. E. Matthews, a witness for tbe defendant, testified that she was present when tbe note and mortgage were executed, and beard tbe plaintiff’s agent say to tbe defendant that “be bad a letter in bis pocket from his bouse to put tbe law to ber son to tbe fullest extent, that be has mortgaged bis property as much as seven or eight times, and that is a penitentiary offense, and without satisfaction bis bouse would push tbe case to tbe fullest extent, but if my mother would let him have tbe rent money it would be all right with tbe bouse.” Again tbe same witness testified, “They said if mama (defendant) would let them have tbe rent money and back it up by tbe mortgage, they would not prosecute Theodore. Tbe note was to represent these rents and the mortgage was to secure tbe note.”

Tbe charge of tbe Court properly put tbe burden on tbe defendant of making ber defense good, and under that charge tbe jury have found tbe facts as shown in tbe verdict. It will not be contended that tbe plaintiff is not bound by tbe statements of bis agent. He is here now, asserting bis claims under the note and mortgage obtained for him by tbis transaction, and if be claims tbe benefits be must accept tbe responsibility. Harris v. Delamar, 38 N. C., 219 ; Black v. Baylees, 86 N. C., 527. And on tbe facts as established by tbe verdict tbe authorities are all against tbe validity of tbe plaintiff’s claim. Vanover v. Thompson, 49 N. C., 485; Garner v. Qualls, Ibid., 223; Lindsay v. Smith, 18 N. C., 328. It has been suggested that these decisions are not controlling, because in tbis case no indictment bad been found nor prosecution instituted. But there is no reason for any such distinction. Authority is equally against it.

It is against public policy that tbe enforcement of tbe criminal law should be obstructed or perverted by contracts made on such consideration in furtherance of personal and private interests, and tbis forbidden result can be accomplished as effectually by tbe suppression of inquiry before as after prosecution commenced. And on authority tbe case of Garner v. Qualls, supra, bolds that “Where tbe obligee represented to tbe obligor in a bond that a relation of tbe latter had committed an indictable offense, and procured the bond in question to be executed by agreeing not to prosecute for such offense, it is void, whether any such offense bad been committed or not.” Tbe facts of that case are remarkably like tbe present, and show that no prosecution bad been instituted. They are stated thus: “It was proved that tbe plaintiff represented to Mrs. Quarles, tbe principal in the bond, that her son-in-law, one Fowler, bad committed three several forgeries, and told her be would prosecute him for these offenses unless she gave him her bond for tbe amount Fowler owed him, and that if she would give him her bond be would not prosecute. She thereupon procured tbe other defendants to join in tbe obligation and delivered it to the plaintiff. There was no other evidence that Fowler bad committed tbe offense imputed to him than tbe above declaration of tbe plaintiff.” Battle, J., in delivering tbe opinion says: “It is now well established, as a broad, conservative principle, that no executory contract, the consideration of wbicb is contra tonos mores or against the public policy or the laws of the State, can be enforced in a court of justice. Blythe v. Lovingood, 24 N. C., 20; Ingram v. Ingram, ante, 188, decided at this term. It is manifest that contracts founded upon agreements to compound felonies or to stifle public prosecution of any kind, come within the range of this salutary principle.”

The authorities are decisive against the claim of the plaintiff and the judgment must be

Affirmed.  