Opinion
07-27-1899
HANN v. CRICKLER et al.
P. D. Weaver and John W. Westcott, for complainant. D. J. Pancoast for defendants.
Bill by Samuel Hann, as trustee, against Charles D. Crickler and others, to foreclose a mortgage. Judgment for complainant.
The bill in this case is filed by Samuel Hann, trustee, etc., to foreclose a mortgage given as collateral security for the performance of an article of separation made by the defendant Charles D. Crickler for the support of his wife and child. To this bill the defendant Crickler makes answer, admitting the entering into the agreement, and the execution of the bond and mortgage, as stated in the bill. He defends the suit, by way of cross bill, upon the ground that these undertakings were extorted from him by his wife by threats and fraudulent practices. He alleges that in April, 1895 (intended to be 1894), she caused him to be arrested and indicted by the grand jury on a false charge of assault and battery, and that he made the agreement to support her and his child, and the bond and mortgage securing it, because his wife made the giving of them a condition of the abandonment of a criminal prosecution against him; and he alleges that, after the agreement and bond and mortgage were made, the indictment was nolle pros'd. He insists that the bond and mortgage were without any legal consideration, and that they are void, as against him, and should be delivered up to be canceled; that he had given her notice that he would not be bound by the agreement, and requested her to return and live with him, which he says she refused to do, whereupon he filed his petition in this court against her for divorce on the ground of desertion. He admits that this divorce suit was dismissed in September, 1807, because he had assented to a separation from his wife under the agreement, and that his request to her to live with him had been made within less than two years prior to the commencement of that divorce suit. He contends that, under the circumstances stated, the agreement and mortgage are, as against him, not enforceable in equity. To this cross bill the trustee has filed answer, denying every substantial allegation in the cross bill; and upon these allegations the cause came to an issue, and was heard. The bill seeking to foreclose the mortgage securing the agreement was filed on October 2, 1807. The answer and cross bill of the defendant Crickler were filed on December 8, 1897. On January 31, 1898, Mr. Crickler filed a second petition for divorce against his wife, alleging that she had deserted him for more than two years before that date. To this petition Mrs. Crickler has filed answer, and that cause is also at issue. As the facts in that cause and in this are closely related, the two have been heard together.
P. D. Weaver and John W. Westcott, for complainant.
D. J. Pancoast for defendants.
GREY, V. C. (after stating the facts). The defense rests wholly upon the allegation of the cross bill that the agreement of separation, and the mortgage supporting it, which is sought to be foreclosed, were obtained from the defendant Crickler by threats of prosecution and imprisonment given out against him, as he declares, by his wife and her counsel, because of an alleged assault upon her, which charge of assault, he claims, is wholly false. The married life of the parties appears to have been very unhappy. In April, 1894, just before the making of the agreement and mortgage now before me, the weight of the evidence shows that Mr. Crickler made a violent attack upon his wife, and so injured her that she was confined to her bed, and under medical treatment, for a long time. For his conduct in this matter, Mr. Crickler was indicted for assault and battery on his wife. They then made the agreement to live separately, he undertaking to support his wife and child, as above stated. Mr. Crickler contends and testifies that he made this agreement, and gave the mortgage securing it, under the duress of threats of the state prison, and a promise of immunity if he gave them. He charges these threats to have been made by his wife and by her counsel. Mrs. Crickler denies them with such incident and circumstances that her statement carries great weight. Her counsel, testifying with an evident purpose to state the exact truth, declares that he had nothing whatever to do with the making of the settlement between the parties as shown by the agreement and the bond and mortgage, that these papers were submitted to him to pass on their legal sufficiency to accomplish their purpose, and that he did not tell Crickler he would be sent to state prison if he did not sign them. Furthermore, it appears that Crickler himself favored a separation from his wife, and that papers looking to a separation had previously, in the fall of 1893, been obtained by him to be drawn, and he then urged his wife to sign them, and was much vexed when she refused to do so. At the time of his assault on his wife, and his indictment therefor, he himself proposed the agreement of separation, and insisted that his sister-in-law, Mrs. Westcott, should go with him to his lawyer's office to make such an arrangement Mr. Crickler's conversation with Mr. Hann, the trustee, as narrated by the latter, is wholly at variance with his present claim that the agreement and mortgage were obtained by threats. He spoke to Mrs. Doe after Mrs. Crickler had gone away, in June, 1894, about the separation under theagreement, which he now says was procured by duress; saying, as to his wife and daughter, that they had cleaned his house out pretty well, but he was glad to get rid of them at any cost. After these papers were delivered, Mr. Crickler continued for about 18 months to make the weekly payments they secured. He refers to these payments in his letter to his wife dated April 16. 1896, but makes no mention that the contracts which secured them had been obtained by threats or unfair dealing of any kind; nor does such a suggestion appear anywhere in the case until after the trustee sought to compel the continued performance of the agreement, and then for the first time the defense of duress was claimed. The trend of all the testimony is so strong against the truth of Mr. Crickler's assertion that these papers were executed under duress, that it compels the conclusion that he has set up a defense which he knew to be false. His credibility when stating or denying other facts which lie almost exclusively within his own knowledge must be very materially affected by such an exposure of his mendacity. This mortgage secures the performance of an agreement by the husband to support his wife and child. This was, in and of itself, a lawful undertaking by him to perform a duty which the law would have compelled him to observe. He says he was induced to execute these papers by a false accusation of crime, and that they were given for the suppression of a threatened prosecution. But, if the accusation were false, there was no crime, the prosecution of which could be agreed to be suppressed. Nothing in the case gives any support to the defense made. The cross bill should be dismissed, and the complainant should have a decree in accordance with the prayer of his bill.