Roach v. Karr.

ROACH V. KARR.

(18 Kans. 529.)

Negligence executing paper without learning its contents.

A wife signed a mortgage on a homestead as security for a note made by herself and her husband. She could read print but a little, and that only by spelling; she could not write, nor read writing. She inquired of her husband the nature of the papers before putting her mark to them, and he told her "it was none of her business, it did not amount to a row of pins, it was a note"; and she signed the mortgage, without requiring it to be read to her, but believing it was a note. Held, that she was negligent, and if deceived, could not assert it against an innocent mortgagee.

F

*

NORECLOSURE of a mortgage. Judgment for plaintiff, and defendants appeal. The opinion states the facts.

L. Stillwell, for plaintiff in error.

Cory & Kimball, for defendant in error.

HORTON, C. J. This was an action commenced by Karr, to recover a judgment on a note of $1,288, executed by the plaintiffs in error, and to foreclose a mortgage alleged to have been given by the same parties to secure the note. Separate answers were filed. J. N. Roach plead usury. Elizabeth Roach alleged in her answer, that the premises were at the date of the mortgage, and for more than ten years had been, the homestead of herself and husband. and occupied as such with their family; that the mortgage mentioned was given without her consent, and that she never consented to the execution of the mortgage; that the pretended certificate of acknowledgment attached to the mortgage was wholly false and fraudulent, and was procured to be made by the connivance of the said James S. Karr, his agents and attorneys, with the intent to defraud and injure her, the said Elizabeth Roach.

[Omitting a minor point.]

As to the defense of Mrs. Roach, a more serious question is presented. But assuming the allegations of the answer sufficient, and that a verification thereof was not necessary to avoid the mortgage

*See Griffith v. Kellog (39 Wis. 290), 20 Am. Rep. 48, and note.

Roach v. Karr.

upon the fact set forth in the plea, still, considering all the evidence given and offered on the part of the said Mrs. Roach, we see no sufficient facts to justify a judgment in her favor. As to the execution of the mortgage in suit, Mrs. Roach testified:

"No one read the mortgage to me, and no one explained the nature of the mortgage to me. I inquired the nature of the papers before I made my mark to them. I believed it to be some notes my husband was giving. I cannot write, nor read writing. I can read a little in the Testament, by spelling the words. I didn't touch the pen until I asked questions. I did sign the papers. I think my husband held the papers on his knee. I never had them in my hand. On the 12th of next March, if I live, I will be sixtyfour years old.”

Mrs. Roach then produced one Ann Harkness, and offered to prove by her, that, "just prior to the time that defendant Elizabeth Roach made her mark to her mortgage, she inquired of her husband, J. N. Roach, what it was; that he told her it was none of her business; that the paper offered her to sign did not amount to a row of pins, and then told her to sign it; that he further told her that the paper was only a note." The court excluded the proposed testimony. At the time of the execution of the mortgage in suit, it (such mortgage) and the note secured thereby were to take up a note of 28th February, 1873, of $1,150, bearing twelve per cent. interest from date, executed by the plaintiffs in error, and to obtain a reconveyance of the title to the homestead from Mrs. Sarah A. Karr, to whom the same had been conveyed by a warranty deed in form as security for the original loan of $840 of 29th February, 1872, and held by James S. Karr to secure the renewals of that note. There is no claim that James S. Karr had any notice of the conversation between Mr. and Mrs. Roach, which attended the execution of the mortgage at the time it was accepted by him, and for which he surrendered up the note of $1,150 and had the title to the homestead placed upon the records in the name of J. N. Roach. The mortgage was complete, except the signature of Mrs. Roach, when presented to her by her husband to be signed, and she at no time asked for it to be read to her. If she was in any manner mistaken or defrauded as to the contents of the mortgage, such result was the consequence of her own gross negligence. She should have demanded that the instrument be read to her. If she relied on the representations of her husband, it was at her peril

Roach v. Karr.

alone. The sound policy of the law forbids that a person thus situated, as Mrs. Roach was, and signing a mortgage under such circumstances as herein presented, should thereafter, as against the mortgagee, innocent of any irregularity in the execution of the instrument, assert that she never consented to the execution thereof. Helm v. Helm, 11 Kans. 21; Hallenbeck and Wife v. Dewitt, 2 Johns. 404. A different rule would open the door to the grossest frauds, and lead to unfortunate results scarcely to be realized. With the view that, considering all the testimony presented by Mrs. Roach, and all the evidence offered by her and which was excluded by the court, the court properly held the mortgage valid, and of full force for all moneys due thereon, deducting the usurious interest therein embodied, the questions raised as to the acknowledgment, and the erroneous instruction as to the consideration of the testimony by the jury, need not be commented upon. These could not affect the validity of the judgment.

The judgment of the court below will be affirmed.
All the justices concurring.

Judgment affirmed.

INDEX.

ACCESSION.

1 Labor by mistake on another's property.] Where one by mistake in
good faith has expended labor upon the property of another, not destroy-
ing its identity, nor converting it into something substantially different,
nor essentially enhancing its value, he cannot recover compensation
therefor from the owner, although the owner has availed himself of the
benefit. Isle Royal Mining Co. v. Hertin (Mich.), 520, and note, 525.

2.

] Where one by mistake and in good faith cut cord wood on the land
of another, and hauled it to a landing and piled it, and the owner seized
and sold it, held, that the owner was not liable for the value of such
labor. Ib.

ACKNOWLEDGMENT.

Of married woman.] See DEED, 267.

Defective when record not notice.] See DEED, 304; VENDOR AND PUR.
CHASER, 784.

ACTION.

For use and occupation adverse holding.] Where a railroad company
entered upon the land of another without his knowledge or consent, but
he afterward assented to their acquiring a right of way upon payment
therefor, with the statement that they were to have no rights in the soil,
and there was no agreement for rent; held, that an action for use and
occupation would not lie. Marquette, Houghton & Ontonagon R. R. Co. v.
Harlow (Mich.), 538.

Does not lie for damages occasioned by perjury.] See PERJURY, 104.
For deceit, when will not lie - speculative damages.] See DECEIT, 508.

ADULTERY.

Definition of.] See DIVORCE, 21, and note, 32.

AGENCY.

1. Liability of agent to principal for disobedience to orders — ratification.]
The plaintiff bank directed its agent, the defendant bank, to invest some
funds for it on good notes; the defendant made the investment on notes
with stock of the Bank of Louisville as security; that bank claiming a
lien on that stock, the defendant informed the plaintiff of this claim, but
also informed it that before making the loan the Bank of Louisville had
agreed to release such lien; on this information the plaintiff accepted the

AGENCY- Continued.

note and stock collateral; and having brought suit to compel the Bank of
Louisville to transfer the stock to it, was defeated, and the priority of the
lien of that bank on said stock was established; the plaintiff then, not
being able to collect the notes, brought this action against the defendant
for negligence in making the loan. Held, that the plaintiff had not rati.
fied the acts of the defendant and was entitled to recover. Bank of
Owensboro v. Western Bank (Ky.), 211.

2. ———.] A delinquent agent is not exonerated from liability where he com-
municates to his principal all the facts known to him at the time, and the
principal ratifies the delinquency, if it afterward turns out that the facts
communicated were not the real facts. Ib.

When knowledge of officer of corporation notice to corporation.] See VEN-
DOR AND PURCHASER, 784.

AGREEMENT.

See CONTRACT.

ALIBI.

Evidence sufficient to establish.] See CRIMINAL LAW, 174.

ALTERATION OF INSTRUMENT.

Of promissory note.] See NEGOTIABLE INSTRUMENTS.

ANCIENT LIGHTS.

See EASEMENTS, 10.

ANIMAL.

See INFANCY, 645.

ASSAULT AND BATTERY.

1. Unintentional injury to third person.] A boy thirteen years of age, in sport
but wantonly threw a piece of mortar at another boy, which accidentally
hit a third boy and injured his eye. Held, that he was liable in damages
to the latter in an action of assault and battery. Peterson v. Haffner
(Ind.), 81, and note, 83.

2. Infancy no defense.] Infancy is no defense to an action for assault and
battery. Ib.

3. By priest in administering a sacrament.] A Roman Catholic priest has no
legal authority by virtue of his priestly character, or the offices of his
religion, while endeavoring to administer a rite of his church to a sick
person at his request, forcibly to eject any person who is lawfully present
in the room. Cooper v. McKenna (Mass.), 667.

ASSESSMENT.

Void assessment - recovery of money paid on.j

Where one on presenta

tion and demand pays, under protest, an assessment, regular on its face,