# FILED May 28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk SYLVIA H. DOCKERY, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9611- CH-00531 VS. ) ) Davidson Chancery ) No. 94-3644-I ESTAT E OF JACK C. MASSEY, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE IRVIN H. K ILCREASE, JR ., CHANCEL LOR

W . GARY BLACKBURN JAY C. BALLARD BLACKBURN, SLOBEY, FREEMAN & HAPPELL, P.C. 205 0 Nat ions Bank Plaza 414 Union Street Nashvil le, Tennessee 37219 Attorneys for Plaintiff/Appella nt JOHN H. BA ILEY, III PAUL G. JENN INGS BASS, BERRY & SIMS 2700 First Amer ican Center Nashvil le, Tennessee 37238 Attorneys for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

In this case theplaint iff pleads lack of consideratio n and economic duress, to avoid th e enforceability of certain deeds of trust she sig ned along w ith her husband. The Chancery Court of Dav idson County g ranted summary judgment tothe defendant . We affirm.
I.

Joe Dockery

was the president and chief executi ve officer of A utom otive Franchise Corporation (AFC), t he owner and franchisor of transmission repair shops. He, Jack Massey, and John Neff were the principal sha reholders. In March of 1988 Dockeryand Massey

jointly borrowed $4,500,000 from the Sovran Bank and loaned it to AFC. In order to induce Mass ey t o be several ly liabl e on the Sovr an loan, Dockeryagree d to give Ma ssey a sec urity i nterest in ce rtain proper ties. In Jul y of 1988 Dockery

and Massey

signed a loan participation agreement, which set out their r espe ctive duties with respect to the So vran loan , and Doc kery ga ve Mas sey a mortgage on seventeen parcels of real propert y. Six of the properties

were ow ned as a tena nt by t he en tiret ies wit h Mr. D ocke ry’s wi fe, the plain tiff in this action. Mrs. Dockery also sig ned the six deeds of trust. In January of 1990 Massey declared a de fault in the loan par ticipation agreementand lat er sou ght to foreclose the deed s of trust signed by Mr. and Mrs. Dock ery. Mrs. Dockery seeks to avoid the foreclosu re of her interest in the six parcels she h eld jo intl y w ith her husband. The deeds show that Mrs. D ockery s igned them on July20, 198 8. She co ntend s that sh e did no t sign the deeds until sometim e later, but she admits that

she is not ce rtain of the date.- 3 - II. Lack of Consideration
Under our view of this issue i t does not matter when the deeds of trust were signed, because “a debt or preexisti ng debt o f a s pouse can be consi deration fora mortgage on the property of the other spouse executing the mor tgag e.” 41 Am. Jur. 2d Husband and Wife § 90. The re is s ome auth ority t hat s ays a mortgage, as an executed conveya nce, requir es no considerati on. See G. Osborne, Handbook on the Law of Mortgages § 107 (2d ed. 1970). But we need not go that far. The courts generallyhold that the debt secured may be a preexi sting one, Continental Bank of Pa. v. Ba rclay

Ridin g Aca demy, 459 A.2d 1163 (N .J. 1983), and th at considerati on to one spouse serves as consider ation for the signature of the other on the mor tgage. Peterson Bank v. Langendorf

, 483 N.E.2d 279 ( Ill. App. 1985) ; Cooke v. Louisville Trust Co. , 380 S.W.2d 255 (Ky. App. 1964) ; Deal v. Christenbury , 274 S.E.2 d 867 (N.C. App. 1981).

In this case, D ockery, a s president and CEO of AF C, un questionably received a benefit from Massey’s agreement to be severally liable on a loan that was to be used for the benefit of AFC. As part of that same transaction, the parties executed the loan parti cipati on a greement and Mr . and Mrs. D ockery executed the deeds of trust. The benef it to Mr. Dockery is ample consideration for Mrs. Dockery’s signature.
Mrs. Dockery cites Bank of Crock ett v. Cull

ipher , 752 S.W.2d 84 (Tenn. App. 1988) as author ity for a r ule in Tennessee th at considerati on must alway s flow to the obligor

on a contract. We think, however, that the holding i n that case res ulted from a uniq ue rul e wi th res pect to accomo dati on parties under our vers ion of the U nif orm Commercial Code. To apply that rule across the board would completely nullify the law of contracts relating to third party benef iciaries.- 4 - So far as we can tell, a deed of tr ust in Tenne ssee has never been attacked by one spouse on the ground of a failure of co nsi deration w here the consideration flowed di rec tly to t he ot her spou se. In nu mero us c ases whe re t he w ife signed simply as

an acco mod atio n to h er hu sban d, ot her d efe nses have been raised, but not considerat ion. See Roach v. Francisco , 138 Tenn. 357 , 197 S .W. 1099 (1917); Cox v. Keathl

ey , 99 Tenn. 522, 42 S.W. 437 (1897); Ronner v. Welcker

, 99 Tenn. 623, 42 S.W . 439 (1897); Grotenkemp er v. Carv er , 77 Tenn. 2 8 0 ( 1 8 8 2 ) . We have no explanati on as to why this defense was not raised in any of the ca ses. It may be that the ru le we speci fically adop t today has be en so well settled elsew here that an attempt to upset i t seemed futile.
III. Duress
Mrs. Dockeryalso contends that her signature on the deeds of trust was procured by economic duress. Accordi ng to Mrs . Dockery, Ron Beaver, the vice president

of Finance at

AFC subjected her to “constant pr essure,” “ harassment,” and “constant

demands” to get

her to sig n the loan parti cipation agreement and the deeds of trust. Mr . Beaver al legedly told Mrs. Dockery

that she “had”to sign the doc uments and that she was “jeopardi zing thecompany and [D ockery] by not sig ning them.”

Accepting all of this as true, the facts do

not make out a cas e of economic duress, w hich has been defined as so coercive and s evere that a person of ordinary firmness could not resist it. Hardy v. Harri s, No. 01-A- 01-9001-CH- 00005 (filed at Nashvil le May 11, 1990). But more devastatingto Mrs. Dockery’s position is the fact that none of the threats, intimida tion, or abuse she felt can be attributed to Mr. Massey. Mr. Beave r himself had never metMr. Mass ey; Beave r was an officer and agentof AFC, notof Mr. Massey, and he worked under M r. Dockery , who was AFC’schiefoperating officer . There i s simp ly no evidence that connects Mr. Beaver’s

alle ged a ctio ns with Mr. Mas sey.

The judgment of thelower court is affirmed and the cause is r emanded to the Chancery Court of Davidson C ounty for further proceedings . Tax the costs on appeal to the appell ant.

_____________________________ BEN H. CAN TRELL, JUDGE CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE- 6 -