A suit was brought to foreclose a mortgage made by husband and
wife of land a part of which belonged to him and a part to her. Her
answer sets up that he obtained her signature by physical violence,
and that he and the officer who took her acknowledgment, both of
whom died before her answer was filed, represented to her that the
mortgage did not cover her land. Held
that her testimony
is not sufficient to impeach the mortgage.
The facts are stated in the opinion of the Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
The Northwestern Mutual Life Insurance Company, appellant, filed
its bill in the court below for the foreclosure of a mortgage on
certain lots in the City of Wyandotte, and a tract of land
containing sixty acres situate outside that city, all in the County
of Wyandotte, in the State of Kansas, alleged to have been executed
by William Cook and Jane
Page 103 U. S. 545
Cook, his wife, dated Dec. 10, 1874, to secure his bond for
The city lots were his property, but the tract of sixty acres
was the separate property of his wife.
She filed her answer, in which she admitted the execution of the
bond but denied the execution of the mortgage as set forth in the
bill of complaint. Her account of the execution of the mortgage, as
given in her answer, was as follows:
"This defendant alleges that on or about the time mentioned in
the plaintiff's bill as the time when said bond and mortgage
therein set out were executed, the said William Cook, her husband,
requested her (this defendant) to sign a mortgage to the plaintiff
as mortgagee, to secure a loan of money to be loaned by the
plaintiff to him, said William Cook, her husband, and informed her
that such mortgage was upon certain lots of his, in Wyandotte City,
and upon this defendant asking him, her said husband, to let her
read the said mortgage, he, her said husband, refused to permit
this defendant to read the same. This defendant then asked whether
said mortgage covered her land outside the city, and was told by
her said husband that it did not; but this defendant refused to
sign the same, whereupon her said husband took hold of this
defendant, and by physical force seated this defendant in a chair
at the table and put a pen in her hand, and placing his hands on
this defendant's shoulder and arm, commanded and compelled her to
write her name, which she did and not otherwise, and not of her own
free will and accord, but that she was compelled to sign said
mortgage by force and threats of her said husband, and that the
same was signed under duress, by actual force, physical coercion,
and the use of violence and compulsion of her said husband, and
through and by such duress, force, physical coercion, and not
otherwise, she was made to sign such mortgage, and this defendant
avers and alleges that such mortgage is not her deed."
"And this defendant, further answering, says that afterwards,
when Alison Crockett, the officer certifying to the acknowledgment
of said mortgage, came into the room where this defendant was, to
take such acknowledgment, said Crockett informed defendant that
said mortgage was upon some city lots belonging
Page 103 U. S. 546
to her husband and did not cover her land. That defendant
believed said declaration to be true; that Crockett did not read
said mortgage to defendant or otherwise explain the contents
thereof, except as herein stated; that defendant did not read said
mortgage, because she believed the declaration of said Crockett to
be true, and feared to offend her husband by refusing to
acknowledge the signature to said mortgage as hers."
Her answer further alleged as follows:
"The said Alison Crockett was the agent of the plaintiff herein
in loaning money to her said husband, William Cook, and taking said
mortgage in security therefor, and when he took said acknowledgment
and made the representations aforesaid that this defendant's land
was not included in said mortgage, he was acting as the agent of
the plaintiff herein, and that he then had full knowledge and well
knew that the land above described (the sixty-acre tract) was the
property of this defendant and was included in said mortgage."
To this answer the general replication was filed.
William Cook having died before the commencement of the suit,
George P. Nelson, administrator of his estate, and other
defendants, answered, but their answers are immaterial, as no
questions are involved in this appeal except such as arise upon the
answer of Jane Cook.
Upon the issue, made by the pleadings, proofs were taken, and
upon final hearing the court made a decree foreclosing the mortgage
upon the city lots, but as to the sixty-acre tract the court found
for defendant, Jane Cook, and declared that the mortgage was not a
lien thereon, and omitted said tract from the decree of sale.
The insurance company, being dissatisfied with the decree of the
court below, has brought the case here on appeal.
The defense relied on is that the signature of Jane Cook to the
mortgage was obtained by means of the false representations of her
husband and by compulsion through the application of physical
force, and that her acknowledgment was obtained by means of the
false representations of her husband and the officer before whom
she made it, in respect to the contents of the mortgage.
Page 103 U. S. 547
The defense rests mainly upon the answer, and upon the
deposition of Mrs. Cook.
The only person present besides Mrs. Cook, when the mortgage was
signed by her was her husband. There were only two persons present
besides her when the acknowledgment of the mortgage was taken.
These were her husband, and Alison Crockett, Register of Deeds for
Wyandotte County, before whom the acknowledgment was made, both of
whom are dead. She is therefore the only living witness of what
transpired when the mortgage was signed and acknowledged.
She admitted her signature to the mortgage, but said it was
obtained in the following manner: Cook, her husband, came in and
asked her to sign the mortgage. He stated that it covered the town
lots in Wyandotte. She declined to sign it. What then took place is
thus stated by her:
"He said if I did not sign that mortgage, he would come off
downtown and go to drinking till he killed himself; these are just
the words he said, and then from that he said he was going to
compel me to sign it, and then as I say he forced me into the
chair, he took me and set me in the chair and held me there, and
took the pen and put it in my band and guided my hand and wrote my
In answer to the question, "How is it that your name is so well
written on the mortgage?" she said, "After he got through, he took
the pen and straightened the places."
She further testified as follows:
"After the mortgage was signed, Crockett came in. He asked me,
'Where is the paper, are you going to sign?' Mr. Cook spoke up and
said, 'It is already signed.' He asked me then if I signed it. I
did not say anything. Mr. Cook stood between me and Mr. Crockett;
he as much as told me to keep my mouth shut by his motions. He
looked me right in the face."
She further testified that Crockett did not explain to her the
contents of the mortgage before taking her acknowledgment. He
simply told her that the mortgage was nothing to injure her, that
it was on property down on Minnesota Avenue.
The complainant introduced in evidence the original mortgage and
also the original of a draft, which Mrs. Cook testified
Page 103 U. S. 548
bore her endorsement, and her original deposition in this case
bearing her signature. The evidence of three experts in handwriting
was also introduced for complainant. They all testified that her
signature to the mortgage and deposition and her endorsement of the
draft were written by the same person; that the signature to the
mortgage appeared to be in the same natural and voluntary hand as
the other signatures, and that upon inspection through a glass
showed no signs of having been touched up or altered.
The three original signatures were exhibited to the Court. An
inspection of them with the naked eye satisfies us that her
statement that her signature to the mortgage was made in the manner
described in her deposition cannot be true. It is as free and
natural as her signature to her deposition or her endorsement of
the draft. It bears no signs of constraint, as would inevitably
have been the case if she had reluctantly held the pen and it had
been guided by another hand and will. It bears no signs of any
change or filling up or straightening. On this subject the
inspection of the signatures leaves no doubt in our minds. Her
narrative in regard to the manner in which her signature to the
mortgage was made is contradicted by the signature itself, and a
comparison of it with the others put in evidence. How, then, can we
give credence to her testimony, touching the representations of her
husband in relation to the contents of the mortgage and her account
of the manner in which her acknowledgment was taken?
When a deed or mortgage, regular in appearance and bearing the
genuine signature and duly certified acknowledgment of the grantor
or mortgagor is attacked, the evidence to impeach it should be
clear and convincing.
In the case of Howland v. Blake, 97 U. S.
, this Court said:
"The burden rests upon the moving party of overcoming the strong
presumption arising from the terms of a written instrument. If the
proofs were doubtful and unsatisfactory, if there is a failure to
overcome this presumption by testimony entirely plain and
convincing beyond reasonable controversy, the writing will be held
to express correctly the intention of the parties. A judgment of
the court, a deliberate deed or writing, are of too much solemnity
to be brushed away by
Page 103 U. S. 549
loose and inconclusive testimony."
See also Shelburne v. Inchiquin,
1 Bro.Ch. 338, 341;
Henkle v. Royal Assurance Co.,
1 Ves.Sen. 317; The
Marquis Townshend v. Stungroom,
6 Ves.Jr. 328, 338;
Gillespie v. Moon,
2 Johns. (N.Y.) Ch. 585; Lyman v.
United Insurance Co., id.,
v. Boston Marine Insurance Co.,
2 Cranch 444.
The acknowledgment of a deed can only be impeached for fraud,
and the evidence of fraud must be clear and convincing. Russell
v. Baptist Theological Union,
73 Ill. 337.
In this case, the testimony of Mrs. Cook touching the manner in
which her signature to the mortgage was obtained is so incredible
that her account of the way in which her acknowledgment was taken
is entitled to little weight.
We have not thought it necessary to consider the question
whether, under the statute of Kansas, the communications between
her and her late husband, to which she testified, are admissible in
It is unnecessary to discuss the other evidence in this case. It
is sufficient to say that it is entirely circumstantial, and its
weight is decidedly against the defense set up.
We are of opinion that there was no evidence in the case
sufficient to overcome the effect of the mortgage and the officer's
certificate. The circuit court should therefore not have excepted
the sixty-acre tract from its decree of foreclosure. For this error
the decree must be reversed and the cause remanded with directions
to enter a decree for the complainant in conformity with this
opinion, and it is