Green v. Scranage

Dillon, J.

The court charged the jury as follows: “ 1st. This is an action against Mrs. Scranage for the foreclosure of a mortgage. She admits the execution of the note and mortgage, but alleges, that the execution thereof was obtained through fraud and undue influence used by the plaintiff, Green, and her husband, Scranage.

“ Now, if you believe, from the evidence, that the plaintiff, Green, or Green and Scranage, by undue influence, induced Mrs. Scranage to execute the note and mortgage, so that you believe it was not her voluntary act and deed, that such undue influences consisted in threats to prosecute the husband for the commission of a crime, or by words amounting to such threats, and that she would consequently be disgraced, by reason of such prosecution, unless she signed the note and mortgage, then such conduct was fraudulent, and, if through such influences, she signed the *464 same, it is a fraud upon her rights, and you should find for the defendants.”

i. husband "mortgage' The court further instructed the' jury, second, that ■whether the mortgage was obtained from Mrs. Scranage fraudulently or not, still she is not liable, being a married woman, “ unless the jury further find, from the evidence, that the execution of the note related to her own separate property, or was for the expenses of the family, or education of the children, or purports to bind herself only.”

Deferring, for the present, any consideration of the first portion of the charge, it is clear that the last charge or direction to the jury, above set out, is erroneous. We will assume that, as against the plaintiffs, the property mortgaged was the wife’s. It seems at one time to have been the husband’s, to have been conveyed by him to one Yan Meter, to secure a debt owing to him, which debt was paid off by the brothers of Mrs. Scranage, with money from their father’s estate belonging to her; and with the husband’s consent, Yan Meter conveyed the land to one of her brothers, and he, subsequently, conveyed it to his sister, Mrs. Scranage.

This was prior to the time when the plaintiffs beegme creditors of the husband.

The cause was tried in the District Court prior to the publication of the decisions of this court in Jones v. crosthwaite, 17 Iowa, 393 , and Patton and wife v. Kinsman, Id., 428 .

We extract the following from the case last named:

“The transaction with Kinsman was, in equity, a mortgage of the wife’s separate property to him. This is binding upon her in equity, and equity will enforce the debt, not against her personally, indeed, but against the property which she has pledged for its payment. ‘A wife,’ says Kent (2 Com., 167), 1 may also sell or 'mortgage her sepa *465 rate estate for her husband’s debts, and such a mortgage, when founded upon a valuable consideration, and not unfairly obtained, is enforceable in equity’ against the property pledged. See also Jones v. Crosthwaite, supra, and cases cited on page 399; Gahn v. Niemcewicz, 11 Wend., 312 ; Young and Wife v. Graff, 28 Ill., 20 ; 2 Story Eq., § 1399; Demorest et ux. v. Wynkoop, 3 Johns. Ch., 129 ; Clancy, 589; Hawley v. Bradford, 9 Paige, 200 ; Loomer v. Wheelwright, 8 Sandf. Ch., 135; Vartie v. Underwood; 18 Barb., 561 ; Speidle v. Weishle, 16 Penn., 134 ; Knight v. Whitehead, 26 Miss., 246 ; Wolf v. Van Metre, ante; County of Johnson v. Rugg, Id., 138; Tiff. & Bull, on Trusts, 687.”

The court’s charge laid down a different doctrine, asserting in substance that the defendant was not liable unless the note related to her own separate property, or was given for family expenses, &c., &c.

The jury, on this point, should have been instructed that if her husband owed the debt, this, particularly if the plaintiff extended the -time of payment, in consideration that the wife would execute a mortgage upon the property to secure it, would constitute a valuable consideration for the mortgage, though the wife was only a surety for her husband; and such mortgage would, in equity, be binding upon the property therein described, provided it was not fraudulently or unfairly obtained.

_ knowiedgment The first instruction of the court, above copied, related to the alleged fraud in obtaining the mortgage. The instructions of the court should be applicable to the special circumstances of the case before it. The instructions of the court in relation to undue influences, are neither as full nor as accurate and precise as they should have been.

The jury should have been told that any false representations made to the wife, by the husband, or undue *466 influence exerted by him to induce her to execute the mortgage, she having afterwards duly acknowledged it, would not affect the plaintiffs or prejudice their security, if this conduct on the part of the husband was without their instigation, procurement, knowledge or consent. Baldwin v. Snowden et al., 11 Ohio, 203, and authorities there cited; McHenry v. Day, 13 Iowa, 445 .

The wife seeks to be relieved from her mortgage on the ground of fraud on the part of the plaintiffs, and this fraud or unfair conduct must be brought home to them.

_ criminal prosecution. On the other hand, if the wife was induced to execute the mortgage from fear excited by threats made to her by the plaintiffs of an illegal criminal prosecution against her husband, the instrument thus obtained -, ■, . •, , . . , would not be binding upon her. For example, if the criminal association was known by the plaintiffs to -be unfounded, and the threats were made for the purpose of overcoming the free will of the wife, and did so overcome it, the security thereby obtained would be set aside on account of the attending oppression or fraudulent advantage taken of the wife.

But if the debt were just, and the criminal accusation was well founded, or, upon reasonable grounds, believed to be so by the plaintiffs, and the wife freely, upon her own deliberate conviction of what was best, and without undue influence 'exerted by the plaintiffs, executed the security, it would be valid, unless given under such circumstances as would render it illegal as an agreement or arrangement to compound a felony or not to prosecute it. Rev., §§ 4286, 4287, 4670, 5106; 1 Pars, on N. & B., 215; Chitty on Cont., 743, and authorities cited.

In support and illustration of these views, see Eadie v. Slimmon, 26 N. Y. (12 Smith), 9, 1862, and cases cited; 2 Story Eq. Jur., § 239; Tiff. & Bull, on Trusts, 162, 687;. Willard’s Eq., 208, and authorities cited; Fry v. Fry, 7 *467 Paige Ch. 461 ; Jacques v. M. E Church, 17 Johns., 548 ; Cruger v. Cruger, 5 Barb., 225 ; Whelan v. Whelan, 3 Cow., 537 .

Reversed and remanded.

Cole, J., being of counsel, took no part in the consideration of this case.