
    INVALIDITY OF A MORTGAGE INDUCED BY THREATS.
    Common Pleas Court of Montgomery County.
    Mary Elizabeth Vaughn v. George V. Geis.
    Decided March 14, 1921.
    
      Mortgage—Executed by a Married Woman in the Hope of Saving Her Husband from Prosecution—Such an Instrument Without Effect Where Procured by Threats.
    
    A mortgage, executed by a wife without consideration on her separate property, may be avoided by her, where procured -by-threats on the • part of the mortgagee to send her husband to the penitentiary on account of the contracting of a fraudulent debt to him.
   Snediker, J.

This case is before the court on the merits. On the 24th day of December, 1919, the plaintiff executed and delivered to the defendant a mortgage upon lot 35412 on the plat of the city of Dayton. At the time her husband, who had been engaged, generally speaking, in the automobile business, was being pressed by the defendant for the payment of certain notes, some of' which were forgeries. There were some preliminary negotations looking to a settlement of the differences between the hus* band and the defendant -and threats of prosecution had been made. The plaintiff was in no way interested in any of the business which had to do with the controversy. On the day in question,.-Geis with the- husband proceeded to-the home of the plaintiff: and took with him a mortgage partly made up. When they reached plaintiff’s home there were other persons in the house, but the transaction of the signing of the mortgage by the plaintiff was had in a room where she with her husband and the defendant only were present. ,

On consideration of all the testimony we can only find that she did sign the mortgage on the statement of her husband that he would be arrested and prosecuted if it were not signed by her and with at least a visible acquiescence in that statement on the part of Geis, if not an oral declaration by him to tbe same effect.

We gather further from the testimony that when the wife did sign it, her act was with this impression and under this fear. The property was hers and when she made the mortgage she made it on account of her husband’s unlawful financial transactions and not on account of any compensation accruing to herself. There was no consideration other than this. There is evidence to show' that the mortgage was not then and there acknowledged. No notary accompanied Geis and the husband to the home of the plaintiff. While this would be such a defect as would prevent a proper record of the mortgage, the instrument itself would still constitute a mortgage in equity between the parties and would be enforceable between them in equity if the circumstances of its execution plead by the plaintiff do not entitle her to avoid it. 10th Ohio, page 415.

This brings us to the claim of the plaintiff as found in her petition:

“This defendant, George V. Geis came to the residence of this plaintiff with a mortgage all filled out on this, her property, and demanded of her that she sign the same; that at first she refused to sign said mortgage, there being no consideration therefor; that thereupon this defendant threatened this plaintiff that he would arrest her husband, John W. Vaughn, and that said John W. Vaughn would be forthwith sent to the Ohio State Penitentiary and that such action would be taken at once unless this plaintiff would sign said mortgage giving this defendant such rights- against her property as were set out in said mortgage; that as a result 'of the threats and language used by said Geis this plaintiff was coerced and against 'her will forced to sign said mortgage; that there was no consideration whatever passing to this plaintiff in any shape, manner or form from this defendant.”

In support of these claims of the plaintiff oral evidence has been introduced to the effect of what we have heretofore stated. It has been held in the case of Martin v. Evans, 163 Ala., page 657, that:

“It is competent to introduce parole evidence to show that a conveyance was obtained by undue influence or fraud. ’ ’

• If this instrument was made as the plaintiff claims it was, then it was made-under duress and its execution was involuntary, for we are entitled to say that it was made under cir-circumstances which prevented the plaintiff from exercising her free will. -,

In the 182 Mich, at page 141, the Supreme Court of that state say:

“A wife may undoubtedly avoid a contract, otherwise valid, made by reason of the threatened criminal prosecution of her husband. ’ ’

In the 253 Mo. at page 1, the second syllabus is:

“Threats by a company with which plaintiff’s husband had become short in his accounts to send him to the penitentiary if she did not sign a deed of trust on her home to secure tie amount of shortage, are sufficient to deprive a wife of her free will and to avoid the instrument.”

In the 43 L. R. A., at page 1005, the Supreme Court of Nebraska say:

“A married woman who involuntarily mortages her separate estate or homestead to secure an individual indebtedness of her husband, may have the lien cancelled in a suit to foreclose the mortgage, where she was induced to execute it by the mortgagee’s threats to imprison her husband for feloniously disposing of mortgaged chattels.”

In the 80 Miss, page 298, the syllabus is:

“When the wife of a defaulting county treasurer is threatened ■ by- a district attorney with the prosecution of her husband unless she conveys all her property to the county and refuses, but ' subsequently while her husband is still living and liable to •prosecution conveys a part of her property on a renewal of the application, her deed is void as a result of duress.”

In the 116 New York, at page 606, the court of appeals say:

“A wife may avoid a contract induced and obtained by threats of imprisonment of the husband and it is immaterial whether the threat is of lawful or unlawful imprisonment.”

In the 88 Wis., at page 188, the first syllabus is:

“A wife may avoid her note made under duress of threats of criminal prosecution of her husband.”

, In the 23 Utah, at page 120, the fourth syllabus is:

""“The rule is that in relation to husband and wife or parent and child, each may avoid a contract induced and obtained by threats of imprisonment of the other, and it is of no consequence whether the threat is of lawful or unlawful imprisonment.”

In the 59 Kansas, at page 281, the court say:

. “A wife is not bound by a contract induced solely by the threats of parties that in case she fails to enter into the contract they will cause the arrest and imprisonment of her husband.”

In the 68 New Hampshire, at page 253, the court go further than to hold that an instrument under these circumstances is merely voidable. They say in the syllabus:

. “The promissory note of a married woman given for the pur.■•poser-of- preventing a criminal,prosecution--against her husband is void.”

In the body of their opinion their language'is:

‘ ‘ The note And mortgage given under such circumstances cannot be deemed valid aiid binding. It was decided in Armstrong v. Toler, 11 Wheaton, 258, that, if a promise is.entirely disconnected with the illegal act. and is founded on a new consideration it is not affected by -the act although it was known to the .party to whom the.promise was made, and although he was the contriver and conductor of -the illegal act. In this cáse;' however, the sole consideration for the note was the plaintiff’s fear of a.’criminal prosecution against -her husband -induced, by- the, representations made by the defendant for the express purpose of obtaining it. It was given in expectation of and for the purpose of preventing such prosecution and is void.”

In the 45 L. R. A., old series, the Supreme Court of Wisconsin say in the first syllabus:

“Threats to arrest a man for embezzlement unless his wife will execute a mortgage is such duress which will avoid the mortgage made by her, if they were sufficient to control her will.”

There is evidence in this case, which we are inclined to accept as being a statement of fact that at the time this mortgage was signed by this plaintiff, she said that she did so sign it under protest. There is no doubt that the defendant contemplated criminal prosecution for it appears that after the signing of this mortgage prosecution was begun against plaintiff’s husband and such proceedings were had that he is now confined in the Ohio penitentiary. We cannot conceive of the plaintiff’s signature being obtained under any circumstances more calculated to control her will. The next day was Christmas. Her husband had committed a crime. His crime had been discovered and criminal prosecution was threatened. The man who intended to prosecute him accompanied her husband to her home for the purpose of having the instrument signed. Her husband declared that unless it was signed he would be prosecuted and the person in whose favor it was to be made acquiesced in the declaration of the husband.

We cannot here enter into the question of whether or not the husband did right or wrong, or as to whether or not he was then And there indebted to the defendant either on account of lega or illegal transactions. Our only question is as to our duty with respect to plaintiff avoiding the mortgage.

' In view of all the authorities on the subject, which we have been able to find, we are of the opinion that the plaintiff is entitled to have the mortgage so executed cancelled and held for naught.

An entry may be drawn accordingly.  