
    No. 731
    NEIKIRK Exr. v. REPUBLIC BANK. CO.
    No. 19925.
    Supreme Court
    On motion to certify.
    Dock. June 24, 1926;
    4 Abs. 475.
    147. BILLS AND NOTES — Where the father and mother have executed a note and mortgage securing the same under the representation that it is necessary to save their son from a prison sentence for allowing an overdraft of an account as an employee of a bank, whereas in fact there is no criminal liability, may such note, and mortgage be declared void for want of consideration?
    Attorneys — W. C. Rhorbacher and E. G. Schroth for Neikirk; H. K. Cole and Spitier ca Flynn lor Ba?k; all of Tiffin.
   This action v¿as brought originally in the Seneca Common Pleas by the Republican Banking Company against Lester J. Neikirk, executor of the estate of Geremiah Neikirk, deceased, and as executor of Anna B. Neikirk, deceased, and.Irving B. Neikirk, for a judgment and foreclosure on a note and mortgage.

The matter was referred to a Master who found in favor of the defendants and on exceptions to this finding the Common Pleas sustained them as to Irving Neikirk and overruled them as to the parents. The Court of Appeals reversed the judgment in favor of the parents and found in favor of the Bank.

It appears that Irving Neikirk as cashier of the Republic Banking Co. allowed an overdraft to certain contractors but it was shown that he had no personal interest whatever in allowing the overdraft and was acquitted after indictment by a jury.

After the overdraft was discovered it was covered by the officers and directors of the Bank as joint tort feasors; and thereupon it appears that certain officers of the bank went to 'the parents of the cashier and under threat of criminal prosecution of their son obtained a note secured by the mortgage for the amoun. of the overdraft.

The executor in the Supreme Court contends:

1. That the evidence shows duress.'

2. That there was no consideration for the note.

3. That the court erred in ordering execution against the property in the hands of the executor in the process of administration because the property could not be subjected to tne payment of this judgment without order of rue Piobate Court.  