Conley v. Horton

7 R.I. Dec. 58

• Court: Superior Court of Rhode Island
• Decided: November 6, 1930
• Docket: Eq. No. 10137; Eq. No. 10138
• Status: Published

Opinion

BLODGETT, P. J.

Both cases heard upon bill, answer and proof.

Actions were brought to have certain deeds of mortgage given by the respective complainants to respondents de-dared void and cancelled by reason of force and duress on part of respondents in procuring execution of tbe same and delivery to them.

A brother of complainants had made collection of a large amount of money belonging to respondents, while acting as agent for them, and failed to pay same over. Immediately upon discovery on the part of respondents of this defalcation, .they called upon one of complainants and, after stating the pur • pose of the .call, viz.: to acquaint the sister of her brother’s defalcation, requested her to give to them deeds of mortgage upon certain real estate belonging to said complainants.

The evidence is conflicting as to the means used by respondents to obtain .execution of the deeds. 'Catherine, one ■of the sisters, after the visit of respondents, - called upon Louis H. Mon-ast,. a real estate ;dealer,- and stating to him that .respondents-had told her 'that they . would . not prosecute ■ her brother for embezzlement if the sisters executed the deeds in question, asked •for his advice as to what- course she -should pursue. This Monast declined to-dq.- saying-he could not advise them, .that, they -must determine, -that for themselves, but that respondents had declared to him their intention to begin action against their brother unless some settlement were made.

The sisters are elderly and unmarried, the youngest 65, the oldest 72. They testified to a visit of -respondents at which threats of prosecution of their brother for embezzlement were made by Mr. and Mrs. 'Horton unless they consented to execute the mortgages.

Mr. Horton denied using any threats of such a nature. -Mrs. Horton is now deceased and cannot testify.

There is no question as to the proper execution of the mortgages by complainants and their acknowledgment of the same. They had no attorney to advise them in the premises and sought no legal advice. The great weight of authority is that any exercise of duress, by threats or oppression, upon the person executing a deed, renders such deed invalid.

“When a son had -been guilty of embezzlement, and his mother made a note and executed a mortgage to the employer from whom he had embezzled, and the 'Court was satisfied that the mother’s controlling motive was to protect her son from exposure and prosecution: Held, that she was not a free agent, and that the note and mortgage should be annulled and cancelled.”

Mary Foley vs. Wm. H. Greene et al., 14 R. I. 618. See also 32 A. L. R. 425 n.

Each case pf ..this nature must be decided.upon its particular circumstances.

■ Here were .three elderly women, Their brother was,a defaulter, and -liahlerto prosecution. Respondents,-! sinathrally -indignant at. having. been-, -tubbed, ¡of a large amount of --money,', ^immediately upon discovery of the losis,' called upon one of the complainants- and!.,laid the matter before her, requesting- -her to execute a mortgage and note,, and'to see her sisters and arrange for'the execution by 'them of- á note -'and mortgage of certain real, estate belonging to them. Within the period of a few days the- notes and mortgages were executed by. them, and on the day following such execution a - transfer of insurance was given respondents.

There was testimony by ■' complain - - ants of threats of prosecution ' of their brother by respondents, in the case of the wife of Horton not denied, she having died since the execution of such mortgages.

The -Court is inclined to believe that at the time of the signing of the notes and execution of the mortgages, in light of the indignation of the respondents and the age of the complainants, that undue pressure was -brought to bear upon them, and that the controlling motive of the sisters was to protect their brother from exposure and prosecution, and that they were not free agents.

For complainants: Thomas P. Cor-coran, Charles E. Mangan. For respondents: John A. Tillinghast.-

The prayers of the bill are sustained and decrees to that effect may be entered.