McCoy v. Green , 83 Mo. 626 ( 1884 )

Black, J.

This was a suit to foreclose a mortgage given by the defendants, who are husband and wife, upon the lands of the wife; and made to secure a note given by both defendants and payable to Joseph McCoy, and by Mm assigned .to plaintiffs. The defendants filed separate answers. The cause was tried by the court. There was judgment for the defendants. No instructions were asked or given. The cause is here mainly upon the alleged ground that the answer of the defendant, Huida Green, constituted no defence and on the pleadings and the evidence the judgment should have been for the plaintiffs.

When parties will go to trial and neither save such questions as to sufficiency of the pleadings by demurrer, motion to strike out or to make pleadings more specific, and introduce evidence without objection, they cannot expect tMs court to examine the pleadings with a very critical eye. Two defences were set up in the answer of Huida, but it will be necessary only to examine one of them. This, in substance, stated that Joseph McCoy, the payee of the note, and her husband had been engaged in business together, and there had been a settlement between them; that on the day of the date of the note and mortgage, April 3d, 1875, McCoy came to her house with the note and mortgage and there stated that defendant’s husband had obtained from Mm the sum of money mentioned in the note by false pretences; that he had taken the advice of the prosecuting attorney and there was no doubt of the guilt of the defendant’s husband, and that unless she signed the note and mortgage he would send her husband to the penitentiary ; but if she would sign the note and mortgage he would conceal the .crime and would not prosecute him ; that she was alarmed .and distressed, but in order to save her husband from the penitentiary, on the agreement of said McCoy to conceal the crime and to abstain from the jmosecution of her husband she did sign the note and mortgage. There was abundant evidence to sustain the issues thus presented. The objection is, that this'defence fails to allege that the crime had been committed or a prosecution commenced.

1. In Cheltenham Fire Brick Co. v. Cook, 44 Mo. 40, it was said, where no prosecution has been instituted it is necessary to allege the fact that a crime has been committed, citing Bank v. Matthewson, 5 Hill 249. The question of pleading was not presented in Baker v. Farris, 61 Mo. 389, because the suit was before a justice of the peace, but the instruction there given and approved, was upon the assumption that if the note was given for the purpose of saving the defendant’s son from arrest, or imprisonment, or for the purpose of compromising a charge of obtaining goods under false pretences, then preferred, oy about to be preferred, or threatened to be preferred, the same was void. So, also, m Sumner v. Summers, 54 Mo. 340, it was said “it is the agreement either express or implied to abstain from prosecution or to dismiss a prosecution already begun, which taints the whole transaction and avoids the contract.” Doubtless one who has created a debt or obligation and in doing so has committed a felony may secure such debt, and the security be valid in all respects, and we see no good reason why the wife may not secure the obligation of her husband thus incurred, if she does so freely and upon her own judgment. But contracts made to stifle public prosecutions cannot be upheld. If the contract be made for the purpose and upon the consideration that an impending and threatened prosecution for a felony shall be stopped, it is void. Roll v. Raguet, 4 Ohio 400; Taylor v. Jaques, 106 Mass. 291; Wharton on Cont., sec. 483. The answer was sufficient.

2. It is, also, insisted that McCoy made no promises, but if any were made, they were made by one NefE who was the half brother of this defendant. McCoy had endeavored to see Mrs. Green, but Mr. Green would not let him see her. He then went to NefE and told him all about the charges against Green; after some persuasion NefE and McCoy went to Green’s house, and the charges of embezzlement were related to her. At first she stubbornly refused to make the mortgage; but the evidence "tends to show that she was induced to make it by Neff, who was acting for and at the instance of McCoy. It is clear, therefore, that Neff’s acts were in reality the acts ■of McCoy. It is true, the latter says he did not authorize Neff to promise immunity from arrest, but he does say that he had consulted- the county attorney and had a good case ; that he would have prosecuted Green if he had not given security.

3. The note contains a stipulation, as follows: ““And we further agree to pay all costs and attorney’s lees should this note have to be collected by law, including all expenses of collection.” This, under the well-settled law of this state, is not a negotiable promissory note. Bank v. Gay, 63 Mo. 33; Samstag v. Conley, 64 Mo. 476; Bank v. Marlow, 71 Mo. 618. And the plaintiffs hold the same subject to an inquiry into the validity of the consideration of both the note and mortgage.

4. Charles L. Green does not question the validity ■of the note as to himself, and yet the judgment was for him also. The suit to foreclose the mortgage was a statutory proceeding and a suit at law; and was governed by the law regulating civil suits, except as otherwise provided in the statute relating to mortgages and deeds of trust. Section 3303, Revised Statutes. The issues are to be tried as in other civil suits. By the statute regulating civil procedure, judgment may be given for or against one or more of several defendants. Section 3673. In suits to enforce mechanics’ liens the plaintiff may, if he fails to show the existence of a lien, have general judgment. We see no reason why the plaintiff may not have general judgment, if he fails to have the pledge enforced. Because such general judgment was not given against Chas. L. Green the judgment is reversed and cause remanded with directions to the circuit court to enter up judgment in accordance herewith. The other judges concur.