
    Latina Spore, App’lt, v. Nathan Vaughn, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    1. Mortgage—Consideration.
    In an action to set aside a bond and mortgage on the ground that it was given without consideration and under duress and coercion by her husband, it appeared that they were given by plaintiff to V. to raise $375 to take up notes given by her husband or to pay that amount due by him to the town; that plaintiff knew that there was a doubt about her husband’s liability to the town. Held, that the evidence justified the finding that the transaction was a loan from defendant to plaintiff, on her mortgage of $275, to pay notes of her husband, and henc e a sufficient consideration for the mortgage.
    2. Same—Opinion op witness.
    In such case evidence that, at a time prior to the execution of the mortgage, in witness’ opinion, plaintiff was “pretty nervous and troubled,” was properly excluded.
    3. Trial—Findings.
    A court is not bound to make findings as to the evidence given.
    4. Same.
    Where it is a question of fact whether or not a requested finding is correct or- not, and the evidence is conflicting, a court is not bound to so find.
    Appeal from a judgment entered upon a decision and findings of a justice at circuit, after submitting certain questions to the jury, and from a denial of a motion for a new trial.
    
      M. S. Wilcox (William C. Lamont, of counsel), for app’lt; Charles E. Nichols (Hobart Krum, of counsel), for resp’t.
   Putnam, J.

—On the trial four questions were submitted to the jury, viz:

“ Were threats of criminal proceedings against the plaintiff’s husband uttered to the plaintiff by the defendant or by his brother John W. Vaughn?

“ Did such threats so constrain the will of the plaintiff as to cause her to execute the bond and mortgage in suit ?

“ Did the plaintiff’s husband utter threats to the plaintiff or attempt to intimidate her with apprehension of criminal proceedings against him unless she would execute the said bond and mortgage ?

“ Was the plaintiff’s will so constrained by such threats or intimidations as to cause her to execute said bond and mortgage ? ” To each of which questions the jury answered “ No.”

The learned court also, after due deliberation, made the following findings of fact:

“ That the execution and delivery of said bond and mortgage was the free act and will of the plaintiff, without any fraud, duress, coercion, threats or undue influence.

“ That there was a good and valuable consideration for the execution and delivery of said bond and mortgage.”

The above findings of the court 'and jury were sustained by the testimony given upon the trial. Although the plaintiff and her husband testified to a state of facts from which duress might be inferred in obtaining the bond and mortgage described in the complaint, yet their testimony was contradicted by the defendant John W. Vaughn, John B. Gallup, and other testimony given -upon the trial.

This evidence, if it does not preponderate in favor of the defendant, is at least amply sufficient to sustain the findings of the learned judge who passed upon the case at special term. I think, however, that the weight of evidence upon the question of duress is clearly with the defendant.

As to the consideration for the bond and mortgage the testimony shows that it was given by the plaintiff to ¡Nathan Vaughn to raise $275 to take up the note given by her husband or to pay that amount due by him to the town. The facts of the case were known to plaintiff and all the parties to the transaction, and do not appear to have been misstated. If there was a mistake as to the legal question whether defendant and his brother John Vaughn were or were not liable on the bond given by them for the plaintiff’s husband, on account of the said notes, I am unable to see how that fact affects plaintiff’s liability on the bond and mortgage. The testimony does not show that any attempt was made to deceive her on the subject of her husband’s liability or that she was deceived. The parties had some question as to the liability of defendant and his brother on account of the notes; proposed to consult Judge Gilbert on the subject in presence of plaintiff, but on account of Mr. Spore’s illness did not' do so. Thus there is evidence to show that plaintiff knew there was a doubt about her husband’s liability to the town on account of the notes. This evidence was sufficient to sustain the finding of the jury that with such knowledge she executed the bond and mortgage to raise the money to take up the notes, whether'they were in fact notes for the payment of which the town was charged or were merely the individual notes of Mr. Spore. The evidence in the case justified the finding that the transaction was a loan from defendant to plaintiff, on her mortgage of $275, to raise that amount of money to pay the notes of her husband. Hence it appeared by the evidence that there was sufficient consideration for the bond and mortgage.

Hence there must be an affirmance of the judgment unless some exceptions taken by the plaintiff to the rulings of the court on the trial, or to his findings or refusal to find, should lead to a reversal.

The evidence being ample to sustain the finding of the judge that the execution and delivery of the mortgage described in the ■complaint were obtained without fraud, duress, coercion, or undue influence, and also showing a sufficient consideration for the bond .and mortgage, it is not important to consider whether there was any proper or timely motion for a new trial made. There being, however, no order entered on such motion it is difficult to see how an appeal can lie from its denial.

It is urged by the plaintiff that the court erred in not finding ■as requested by her in her proposed 16th finding. The answer to -this position is, that the finding asked the court to find, except as below mentioned, not conclusions of fact or law, but rather evi■dgnce given "on the trial. A court is not bound to make findings •as to the evidence given. However, all that was material in plaintiff’s proposed 16th finding was in fact found by the court in favor of the plaintiff among his legal conclusions. As conclusions of law the court found that the notes given by Spore were his own individual notes and not the obligations of the town. Also that the defendant and his brother, as Spore’s bondsmen, were not liable on account of said notes.

It is suggested that the court erred in excluding the testimony of Sager “ I think she was pretty nervous and troubled; ” and the testimony of Dyer and Stevens that “ she was excited; ” u her eyes looked as if she had been in trouble; she appeared very excited,” etc.

I think the court did not err in this regard. The evidence of Sager was as to a time before the return of her husband, and the opinion of the witness as to her nervousness at that time was entirely immaterial. The evidence of Stevens was merely his opinion as to her appearance during a conversation between her .and the witness and in the absence of the defendant.

The same is true as to the statement of Dyer. Again, the evidence excluded was merely the opinion of the witnesses, and such evidence offered under such circumstances has never been deemed admissible.

Again the plaintiff claims that the court erred in refusing to find as requested in her proposed 20th finding.

The finding was as- follows :

That plaintiff was called into the room and requested to sign the mortgage, and she declined to do so, saying she had been advised by several of her neighbors (naming them) not to sign any papers ; that her husband then said: Then I shall have to go up; if you don’t do it I am gone up; I shall give myself over to my bail to do with me as they please.”

The court was not bound to find as requested. The proposed finding asked the court to find as to what took place when plaintiff agreed to execute the mortgage, and states a small part of what Mr. Spore then said to her. According to the testimony of defendant and his brother, Mr. Spore made other statements at that time to his wife, and she answered. The judge was not bound to find as what Spore said at the time in question, a small portion of what he, in fact, said. The plaintiff should have inserted in her proposed finding all of Spore’s statement to his wife.

It is also claimed that the court erred in refusing to find the twenty-first finding as proposed by the plaintiff, which is as follows:

. “ 21st. That the plaintiff thus pressed by her husband then signed the papers, and I find that the plaintiff would not have executed the papers but for the statements made to her by her husband and the Vaughns, and that she was induced to execute the bond and mortgage by the threats and for fear that her husband would have to go up, and in the belief and fear that if not executed he would be arrested and sent up, or surrender himself, and would be punished for the crime of embezzlement.”

Whether that finding was correct or not, was a question of fact as to which there was conflicting evidence, and the court was not legally bound to find as requested, especially as the weight of evidence was upon this question rather with the defendant than with the plaintiff.

Whether what the plaintiff’s husband is proved to have said to her, viz.: '•'■Then I shall have io go up\ if you don’t do it I am gone up; I shall give myself over to my bail to do with me as they please,” at the time she agreed to give the bond and mortgage, indicates a threat on the part of her husband which induced the plaintiff to execute the bond and mortgage or otherwise, considering the testimony of defendant, his brother, Gallup and other witnesses, the letters between her and her husband and the other facts of the case, was a question of fact for the court and jury. It was proved, after the execution of said bond and mortgage, that plaintiff said to Mrs. Gallup and to Mr. Gallup that she had executed the mortgage to defendant and was glad she had done it; she couldn’t live alone and she wanted him back, and she done it to get him back. And the jury and court, after hearing all the evidence, determined the questions of fact in favor of the defendant and found that the bond and mortgage was obtained without fraud or duress and on sufficient consideration.

There are quite a number of other exceptions taken on the trial and mentioned in the points of the appellant I have examined and considered them all, and do not deem it necessary to discuss them here. I have reached the conclusion that there are none of such exceptions that require a reversal of the judgment The questions in the case are principally of fact, and I think were correctly disposed of at the circuit, and hence, that the judgment should be affirmed, with costs.

Herrick, J., concurs ; Mayham, P. J., not acting.  