Lomerson v. Johnson

Full title: LOMERSON v. JOHNSON et ux.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Feb 23, 1888

44 N.J. Eq. 93 (Ch. Div. 1888)

44 N.J. Eq. 93

Opinion

02-23-1888

LOMERSON v. JOHNSON et ux.

J. G. Shipman & Son, for complainant. W. H. Morrow, for defendants.

BIRD, V. C.

(Syllabus by the Court.)

On bill to foreclose.

J. G. Shipman & Son, for complainant. W. H. Morrow, for defendants.

BIRD, V. C. The complainant files a bill to foreclose a mortgage which was given to him by the defendants to secure the payment of a bond given by the defendant Mr. Johnson to the complainant, conditioned for the payment of $6,432.02. Mrs. Johnson files her answer, and resists the foreclosure of this mortgage upon the ground that she was induced to join with her husband, in executing this mortgage upon her separate estate, by unlawful influences, threats of the imprisonment of her husband, the real debtor, and other fraudulent practices upon the part of the complainant, amounting to undue pressure. Mr. Johnson was the executor of his father-in-law's will. The complainant, Mr. Lomerson, became one of his sureties for the performance of the trust. In the progress of the settlement of the estate, Mr. Johnson gave to the complainant two bonds, one for $6,000, and one for about $6,400, secured by a mortgage on certain real estate of Mr. Johnson's. Mrs. Johnson joined in the execution of this mortgage. On the 7th of July, 1883, but a few months after the execution of the mortgage already mentioned, the mortgage now in suit was executed by Mr. and Mrs. Johnson; and the question is, under the pleadings and the proof, whether or not, under the circumstances of the case, Mrs. Johnson is entitled to be relieved from this mortgage. At the time of the execution of this mortgage Mr. Johnson was about 76 years of age, and was feeble in health. However, there is nothing to show that he was feeble in mind, or in any way broken down physically. He was not only about the premises at the time, but he called upon the attorney who prepared the mortgage on the day it was prepared; but whether he asked him to prepare it or not does not appear. Mrs. Johnson, who was well advanced in years, had suffered a good deal of anxiety because of business troubles in the family, and because of the loss of three of her children. But there is nothing in the appearance of Mrs. Johnson, upon the witness stand, nor in her expressions as a witness, which would indicate any incapacity upon her part to understand ordinary business transactions and the reasonable effects to flow therefrom. It will be seen that I must come to this conclusion with respect to Mrs. Johnson, who testifies in her own behalf, in order to give any very great efficacy to her statements as a witness. She says that Mr. Lomerson came to her house, and said that he wanted her to give a mortgage as collateral security for the payment of this $6,400; this being the amount of money due to persons known as the "Hornbacker heirs." She inquired who wanted her to give this mortgage, and Mr. Lomerson said Mr. Shipman, who was a prominent lawyer in the village, and a warm friend of Mrs. Johnson's, and a Mr. McMurtrie, who might be called upon as surety. She replied that she could not do it, and asked Mr. Lomerson if he wanted to send her to the poor-house. She says Mr. Lomerson then said: "If you don't, Levi will go to jail." She inquired who would put him there, and Lomerson said Mr. Shipman would. At this instant her daughter Carrie, who was present, said to her mother, "Don't you do it," when Mrs. Johnson said, "Father cannot live through it," referring to her husband. Mr. Lomerson wanted Carrie to put her lot in also, and she refused to do it. While this interview was progressing, dinner was served. Mr. Lomerson, having been a warm friend of the family for a long time, dined with them. After dinner Mr. James M. Robeson, counsel for Mr.Lomerson, brought the bond and mortgage, which were executed by Mr. Johnson, and acknowledged before Mr. Robeson, after which Mrs. Johnson signed and acknowledged the same according to the statute. Mr. Robeson has since died, and his testimony cannot be had. Mrs. Johnson says when she signed and acknowledged the execution of the mortgage that she was asked by Mr. Robeson if she executed the same freely, and that she said "No." It appears that the daughter, although not present in the same room, was in the hall very near by, at the time of the execution and acknowledgment of the mortgage by Mrs. Johnson. The daughter's testimony is substantially the same as Mrs. Johnson's. She says that Mr. Lomerson asked her mother to sign the mortgage, and when he said that Mr. Shipman was urging it, and that if father did not sign they would put him in jail, that she said to Mr. Lomerson she did not believe it. She corroborates her mother in saying when her mother was asked if she executed the mortgage freely, she said she did it to keep father out of jail. From her statement it appears that she afterwards inquired of Mr. Shipman and Mr. McMurtrie whether they had had anything to do with this transaction, and was informed by them that they had not. She says that she then went to Mr. Lomerson and urged him to give the property back, and surrender the mortgage. She says that Mr. Robeson was there half an hour, and that her father was present. It is very clear from the testimony in the cause that no proceedings whatever were at that time instituted, or about to be instituted, against Mr. Johnson, the debtor. Mr. Lomerson says, in speaking upon the subject of this interview, that he told Mrs. Johnson and her daughter that Mr. McMurtrie said that, unless she gave a mortgage on her lot, he would see her husband go to jail before he would pay a dollar of this claim. When Mrs. Johnson asked if they could do that, he replied, saying, "Oh yes, they can; that is embezzlement," and gave them an instance of parties being sent to jail, in Newark, for the unlawful use of trust funds. Then Mrs. Johnson said to her daughter, "Why, Carrie, what shall I do?" And Carrie said, "I would not do it." After further conversation he says that he said to Mrs. Johnson, "If you say you will, I will go and get Mr. Robeson to write the mortgage," and he went. Mr. Johnson went with him. He says that this was in the afternoon; that he went to his home, and returned the next morning; and that when he went into the house the daughter, Carrie, said to him that Mr. Robeson was then reading the mortgage over. Mr. Johnson signed it and stepped out of the room, when Mrs. Johnson signed. He again repeats that all he told Mrs. Johnson was what Mr. McMurtrie had said, and says that Mr. McMurtrie told him that. He positively denies making any threats. He says further that there was nothing due at that time to any of the Hornbacker heirs upon their claim, and also says that no proceedings had been begun.

While the principal contention is with respect to the question whether there was in contemplation of law a contract or not which could be enforced, it is due to the defendants to notice another point earnestly presented, which is to the effect that if this mortgage was not obtained by duress or false representations, amounting to a fraud, or under any other circumstances which prevented Mrs. Johnson from acting as a free and voluntary agent, it nevertheless cannot be enforced, because it is without any new consideration. It was given by the wife upon her separate estate to secure the pre-existing debt of the husband, and is therefore void. Reliance is placed upon the law as laid down in Brandt, Sur. § 9, and Jones, Mortg. §§ 615, 1137, and the case of Pratt v. Hedden, 121 Mass. 116, 117, and Ellis v. Clark, 110 Mass. 389, 392. I do not think a new and distinct consideration has been made requisite in such cases in this state. When the following cases are carefully considered, I think it cannot be claimed that they recognize any such doctrine. Merchant v. Thompson, 34 N. J. Eq. 73, and cases cited therein. It seems to me that if the doctrine had been favored in this state it would have been applied to a portion of the claim inthe case of Campbell v. Tompkins, 32 N. J. Eq. 170. See, also, Galway v. Fullerton, 17 N. J. Eq. 389, and Armstrong v. Ross, 20 N. J. Eq. 118.

We come now to the consideration of the main question, which is, does enough appear, by way of proof in this case, to satisfy the judicial mind that Mrs. Johnson was so influenced, by what was said by Mr. Lomerson, as to deprive her of her free agency in the making of this mortgage? There is no dispute but that the criminal liability of Mr. Johnson, the husband, was spoken of by Mr. Lomerson. He admits saying that Mr. McMurtrie had said he would see Mr. Johnson in jail before he would pay one dollar of his claim, unless Mrs. Johnson executed this mortgage. He admits further saying that when Mrs. Johnson asked if that could be done that he said it could, and called her attention to the fact that persons had been put in jail for the wrongful use of trust funds. Now, the moneys which it was sought to secure by mortgaging her lot were trust moneys. Mrs. Johnson was apprised of this fact. It was very well understood that he was greatly in arrear in his payments, and was wholly unable to pay out of his own estate. The two bonds and mortgages which had previously been given to secure the same moneys were thought at the time to be inadequate, although that fact had not been practically determined at the time of the execution of this mortgage, by a foreclosure and sale. The conclusion cannot be overcome that, considering her age, and the condition of the health of her husband, she might have some reasonable apprehensions of disaster to him because of his financial embarrassments. The insistment of Mr. Lomerson that he made no threats directly, when he admits saying that he gave the incidents which I have named, affords no excuse or palliation. If the statements which he made to the effect that Mr. Johnson had been guilty of embezzlement, and to the further fact, upon inquiry by Mrs. Johnson, that for such embezzlement he was liable to be imprisoned, and that he was aware of the fact that several persons had recently been imprisoned for such misconduct, were made by the way of threat, or were made for the purpose of influencing her mind, by Mr. Lomerson, then such statements go very far towards bringing the ease within several cases which have had the very highest judicial consideration, and which cases, very properly, have great influence upon my mind. But, upon the other hand, if there were no observations made by Mr. Lomerson by way of threat, such as that Mr. Shipman and Mr. McMurtrie had commenced proceedings against Mr. Johnson already, and that they would put him in prison if she did not give this mortgage, but were observations made in ordinary conversation between friends, he simply answering inquiries according to the best of his understanding, then, very clearly, nothing that he said or did would in itself be illegal, or could improperly influence her free agency. If he undertook to impose upon her, to gain an advantage, even though the words used by him be strictly true, yet, in the eyes of the court of equity, it might be considered very inequitable that he should hold any advantage which he thereby secured. But if the supposed wrong or imposition resulted, not from any design upon his part, but was sought by Mrs. Johnson, in the pursuit of reasonable and proper inquiries, respecting her husband's affairs, a very different case would be presented. Now, my conclusion respecting the testimony is upon this head that Mr. Lomerson went to Mrs. Johnson for the purpose of asking her, and persuading her, to join her husband in the execution of this mortgage; and that, in order to do so, he certainly made allusions to her husband's criminal liability for the wrongful appropriation of trust funds; and that, in order to impress this upon her mind, according to his own statements, he said to her that McMurtrie on that morning declared that he would see her husband in jail before he would pay one dollar unless she joined in the execution of this mortgage upon her real estate; and that in addition to this he gave her the assurance of a friend, when she asked for information, that he could be put in jail for such alleged embezzlement. To this extent thestatement of Mr. Lomerson goes. These statements must have made a most serious impression upon an affectionate and loving wife. It is happy for us that all persons, male or female, are blessed with these tender sensibilities which quickly respond when peril is threatened to a friend, a child, a husband, or a wife. There are several cases in our own reports which throw some light upon this subject, although I believe none of them go further than to lay down general principles, which are always of the utmost value in such cases; such as Wright v. Remington, 41 N. J. Law, 48, 43 N. J. Law, 451; De Range v. Elliott, 23 N. J. Eq. 486; Tooker v. Sloan, 30 N. J. Eq. 394. The case of Williams v. Bayley, L. R. 1 H. L. 200, 35 L. J. Ch. 717, considered in the house of lords, is of great interest. In that case a father had indorsed for his son, after which the son forged numerous indorsements. At length the holders of the paper, being bankers, pressed the father for a settlement. There was no proof that the father had ever sanctioned the forgeries, or in any way countenanced the unlawful transactions of the son. The holders of the paper in fact said to the father, "We don't know these to be forgeries; we don't believe them to be so; but your son is responsible for them, and if you don't help him we must sue him for the amount." They did not say in direct words that the son was guilty of forgery, and that they should prosecute and would enforce the penalties of the law. They must have believed they were forgeries; but they said, "We do not wish to exercise pressure on you if, it can be satisfactorily arranged;" and the inquiry was made, "What is the meaning of that?" The inquiry was, "Does the word 'pressure' mean pressure arising from exercising the power, or keeping in the hands of the holders of this paper the means of exercising the power, of instituting a criminal prosecution? Or does it mean the pressure of getting you to make yourself responsible for your son's debt? It must have meant the former, because the context shows that the other was alternatively provided for when it was said, 'We do not wish to exercise pressure, if it can be satisfactorily arranged.' That could not mean, 'If you take upon yourself without pressure, we do not mean to press you.' * * * 'If you can satisfactorily arrange this, and if you choose,' according to another expression that was used, 'to treat it as a matter of business, that is, to take upon yourself the debt, we will not exercise pressure.' * * * 'If you take that upon yourself, it will all go smoothly; if you do not, we shall be bound to exercise pressure,' which could only mean 'to exercise those rights which remain to us by reason of our holding signatures forged by your son.'" The court put it in this light: "If you choose to take upon yourself the responsibility of these bills, all will be right, but if not, we cannot be parties to compounding a felony." In this case Lord WESTBURY said: "Now, with regard to the first point, namely, whether this was the voluntary act of the plaintiff, I would put two questions—First, what was the basis of the transactions or negotiations between the appellants and the respondents that lead to the security in question? and, secondly, what was the motive or inducement that was brought to bear upon the respondent in order to induce him to give security? It was skillfully contended on the part of the appellants, by their learned counsel, that the basis of the transaction was either the actual or the possible liability of the father for the debt. But that is an argument wholly unsupported by the evidence, and, on the contrary, it is in every way contradicted by the evidence. There is no ground for concluding, from anything that had been said, that the bankers treated the father as a person who was civilly responsible. There was no attempt on the part of the son William Bayley, notwithstanding his distress, to assert at any time that he had the authority of his father. In point of fact the father's aid is invoked throughout upon the basis that the son alone was liable, and that, in addition to civil liability, he had contracted a criminal liability. Now, that is apparent, not only from the passages which have been read by my two noble and learned friends, but from the whole conduct of theappellants. It must be remembered throughout that the appellants did not speak out distinctly, for the reason that is given by one of them in a passage that has been referred to, namely, that they could not in any manner be implicated in compounding a felony. Again, there is a small incident which brings home, at least to my mind, in a satisfactory manner the truth of the conclusion that the criminal liability of William Bayley was the basis of the whole transaction, and that is the circumstance that Henry Williams wrote on a slip of paper and communicated to his brother Philip during the discussion his own doubt whether the father might not be civilly liable. Now, it is quite plain that if the discussion had proceeded either wholly or partially upon the notion that there might have been civil liability on the part of the father, the necessity for making such a suggestion by Henry to his brother Philip never could have arisen; and it is perfectly clear, also, from the fact that the slip of paper not being either read out or acted upon, but, on the contrary, being thrown into the fire by Philip, that he was willing that the transaction should goon on the basis on which it had been started, namely, that there was a constat, and that William Bayley therefore stood in the liability of a felon. So much in regard to the basis of the transaction. Now, what was the motive or inducement which was brought to bear on the respondent?" An effort was made to get satisfactory security for the son, which effort failed, but the discussion did not terminate between the parties, "but it was renewed on the basis of the plaintiff coming forward to relieve his son from the situation of peril in which he was placed. The bankers admit most clearly and distinctly that they all knew that it was a case of transportation for life. It is perfectly clear that they did not pretend that the father was liable. What remained, then, as a motive for the father? The only motive to induce him to adopt the debt was the hope that by so doing he would relieve his son from the inevitable consequences of his crime. The question, therefore, is whether a father, appealed to under such circumstances to take upon himself an amount of civil liability with the knowledge that unless he does so his son will be exposed to a criminal prosecution, with the certainty of a conviction, can be regarded as a free and voluntary agent? I have no hesitation in saying that no man is safe, or ought to be safe, who takes the security for the debt of a felon from the father of a felon under such circumstances." Besides these observations Lord WESTBURY added: "A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract which should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing, and leaving his son in that perilous condition, or of taking on himself the amount of that civil obligation. I have, therefore, in that view of the case, no difficulty in saying that, as far as my opinion is concerned, the security given for the debt of the son by the father, under such circumstances, was not the security of a man who acted with that freedom and power of deliberation that must undoubtedly be considered as necessary to validate a transaction of such a description." Hence, I cannot but repeat the question: "The question, therefore, is whether a father [a wife] appealed to under such circumstances to take upon himself [herself] the amount of civil liability, with the knowledge that unless he [she] does so, his son [her husband] will be exposed to a criminal prosecution with the certainty of conviction, can be regarded as a free and voluntary agent?"

A case involving the same principles was considered in the New York court of errors and appeals. Eadie v. Slimmon, 26 N. Y. 9. The action was to recover $2,000 on a life insurance policy. It appeared that on the 4th of April, 1857, Slimmon went to the house of Mr. Eadie with an attorney, a person whom he represented to be a police officer, and another person, and thereaccused Eadie of having embezzled money while in his employment as a clerk. An altercation ensued between them as to the amount of Eadie's indebtedness. Slimmon demanded that Eadie should convey to him his house, and cause the policy of insurance upon his life to be assigned to him, in payment or security for the alleged indebtedness. The discussion lasted some hours. Mrs. Eadie was either present or near by all the while. Slimmon threatened that if Eadie would not comply with his demands, he should be prosecuted criminally for embezzlement, and stated that he had an officer in attendance for that purpose, and said he would take the responsibility. A brother-in-law of Mrs. Eadie's called and found her in a state of great excitement. He intervened in the discussion at her request, and finally, about 2 or 3 o'clock in the morning, her agitation and distress continuing, he advised her to execute an assignment of her policy, and persuaded Eadie to unite in it, and in an agreement to convey his house. A memorandum in writing to that effect was entered into. At about 10 o'clock of the succeeding forenoon, the formal assignment of the policy was executed by Mrs. Eadie and her husband. At the trial in court this assignment was declared to be of no binding force. Upon appeal to the supreme court the judgment below was reversed. In the court of errors it was said: "As between parties occupying no relation of confidence in or towards each other, or of control, by reason of position, employment, or otherwise, undue influence can rarely be imputed without showing some degree of fear, or threats, or advantage taken of position, or unfair practices or persuasion, involving in some degree a species of fraud. But when any of these elements enter into and constitute part of the circumstances attending a transaction, and controlling the will of a party making a deed or other contract, courts of equity have long been accustomed to give relief." Judge STORY states the rule, as extracted from and confirmed by many cases, as follows: "Courts of equity," he says, "relieve a party when he does an act or makes a contract when he is under the influence of extra terror, or of apprehension short of duress; for in cases of this sort he has no free will, but stands in vinculis. Circumstances," he says, "of extreme necessity or distress of a party, although not accompanied by any direct duress or restraint, may also overcome free agency and justify the court in setting aside the contract on account of some attending oppression." The rules in regard to the doctrine of undue influence have been asserted in numerous cases in our own courts. Whelan v. Whelan, 3 Cow. 537; Sears v. Shafer, 1 Barb. 408, 6 N. Y. 272; Howell v. Ransom, 11 Paige, 538; Ellis v. Messervie, Id. 467; Evans v. Ellis, 5 Denio, 640. "Within the principle asserted in these cases the present case presents, I think, an instance of a contract procured by undue influence, if ever one existed. The assignment from the plaintiff to the defendant was most clearly extorted by a species of force, terrorism, and coercion, which overcame free agency; in which fear sought security in concession to threats and to apprehension of injury. It was made as the only way of escape from a sort of moral duress more distressing than any fear of bodily injury or physical restraint. The testimony shows that Eadie himself refused; and that Slimmon told him that if he did not, as sure as the sun rose he would lodge him in jail; and that he had an officer down stairs for that purpose. Many other similar observations were made by Slimmon." The court said: "I can imagine no duress over a man, no restraint over his person, or dread of personal injury, more likely to deprive him of free agency, and induce him to yield to the wishes and demands of another, than the duress over this woman, operating through appeals thus addressed to her pride, her fears, her affections, and her sensibilities."

The principle upon which the court of equity proceeds in these cases seems to be further illustrated by that of Rau v. Von Zedlitz, 132 Mass. 164. The suit was in equity. The bill alleged that the defendant was indebted upon two drafts accepted by her at Dresden on the day previous to her marriage,and seeks to obtain a decree that the trustee of the marriage settlement shall apply to the payment of the drafts so much of the trust fund as is necessary. The defense is that the acceptance of the drafts was forced upon her by threats and undue influence, and is invalid. It seems that the defendant, while traveling in Europe, became engaged to be married. She possessed considerable fortune in her own right, and a marriage settlement was prepared at her request. Her intended husband was largely indebted to the plaintiff, and there was some evidence that portions of the money had been advanced by the plaintiff; and the defendant was induced to go to the office of a notary public to make some arrangement about the money which her intended husband's mother informed her he owed the plaintiff. She went, accompanied by her intended husband and his mother, and found there another creditor. An interpreter was present during the interview, which continued from 5 o'clock until 8. She was told that her intended husband was indebted in the sum of 15,000 marks, and was requested to sign drafts to that amount. She refused, saying that it was impossible, and that she had parted with all her property. She was solicited again and again to sign, and was told by her intended mother-in-law "that if she did not, disagreeable consequences would follow; and that unless the drafts were signed, the marriage on the following day would not take place. She was told that the police would prevent their leaving their dwelling, or stop them at the door of the church, and that the whole affair would be published in the newspapers." It also appears from the testimony of the plaintiff that he intended to have her intended husband arrested unless she paid the debt. "She desired to leave the room, and was told that she could not go until the matter was arranged." Neither of the parties could speak a language which the other could understand. The mother-in-law was particularly interested, and was very desirous that the defendant should sign the drafts. The defendant was very much excited, and at last, with tears, she fainted; after which the first she knew was that her intended husband was holding her at the window, and offering her a glass of water, when her intended mother-in-law said to her, "Now, you had better sign," and she did so. Upon these facts the court say: "The contract she entered into was without consideration, and it was purely a question of fact whether she was induced to sign it by threats and undue persuasions, and through fear that her marriage would be prevented. This in equity will constitute a good defense to the bill." The same principles are announced in Lyon v. Tallmadge, 14 Johns. 501, 513; Lamplugh v. Lamplugh, 1 Dick. 411; Davies v. Insurance Co., 8 Ch. Div. 469; Sharon v. Gayer, 46 Conn. 189; Reed v. Exum, 84 N. C. 430; Manufacturing Co. v. Rawson, 50 Iowa, 634; Thurman v. Burt, 53 Ill. 129; Harshaw v. Dobson, 64 N. C. 384; Harris v. Carmody, 131 Mass. 51; Smith v. Allis, 52 Wis. 337, 9 N. W. Rep. 155.

So far as I have observed, in no one of the cases which I have considered up to this point has the instrument alleged to have been procured by oppression been solemnized by an acknowledgment of its free and voluntary execution, according to the statute in such case made and provided, by a public officer authorized to take such acknowledgment, except that of Sharon v. Gager. We are not, however, left without the aid of a judicial examination of the subject with such an important fact in the case. In Bank v. Copeland, 18 Md. 305, the court was called upon to deal with the subject thus presented. The mortgage was given by Copeland and his wife upon the real estate of the wife. There was an acknowledgment and separate examination of the wife duly certified by the officer authorized to take such acknowledgments. Upon proceedings to foreclose a decree pro confesso was taken against the husband. Mrs. Copeland, under leave, answered separately, showing that at the time of the execution of the paper she was in bed and suffering from a severe spell of sickness, and was weakened and much reduced by nervous prostration; and that, while in such a state of physical debility, she was forced to sign the paperin the presence of her husband by means of threats and menaces which she was unable to resist; and that the means used were fraudulent. The court find these allegations true and say: "The execution of the mortgage was preceded by personal menaces and threats of her husband to destroy the property by fire if she did not execute it, and the fact that it was executed and acknowledged involuntarily as a consequence cannot be denied. The resort to measures thus violent and harsh leads inevitably to the conclusion that her consent could not have been obtained otherwise. Her acknowledgment that it was free and voluntary, and not induced by fear, as between the parties to the deed, is not conclusive of the fact that it was; nor can it, with regard to the evidence in the case, be so considered. * * * A husband, who by extreme harshness compels a wife to execute a deed of her property against her will, and then, in the form prescribed by law for her protection, to sanction the wrong inflicted by acknowledging its involuntary execution to be voluntary, and without fear, cannot by reason of the mere formal acknowledgment entitle himself, nor any one in whose interests such a wrong may be attempted, to set up a claim upon the deed as a valid conveyance. As the execution and acknowledgment of the mortgage in this case by Mrs. Copeland appears to have been induced by harshness and threats in the exercise of an unwarrantable authority so excessive as to subjugate and control the freedom of her will, the aid of the court to support and enforce its provisions against her must be refused." In the case of Sharon v. Gager, supra, the treasurer of a town became a defaulter, and the selectmen of the town urged an aunt of this treasurer to secure the amount due by a mortgage on her lands. She had lived with the nephew for many years, and was greatly attached to him. An agent of the selectmen said to her, "You know what the consequence is. It is $500 fine and imprisonment." The aunt executed and acknowledged a mortgage on her real estate. The court held that she could avoid it. In McCandless v. Engle, 51 Pa. St. 309, the court said: "Less than actual duress will avoid an acknowledgment of deed of conveyance or mortgage by a wife, provided it be known to the party claiming through it. * * * It is enough if it be shown that the wife did it under moral constraint, that is, by threats, persecution, and harshness of her husband to force her to set aside her own free will." Michener v. Cavender, 38 Pa. St. 334; Louden v. Blythe, 16 Pa. St. 532; Harris v. Carmody, 131 Mass. 51. The case of Remington v. Wright, supra, is not in conflict with the views of the learned judge expressed in the cases cited otherwise than is so frequently the conflict between cases at law and in equity, which conflict is the principal seat or throne of equity. And this distinction is fully recognized by Mr. Justice REED, who delivered the opinion in the last-named case. Therefore it is plain that pressure which does not amount to duress at common law may be considered, in equity, as sufficient to set aside or to resist a contract. Whenever a contract is procured by such influences as overcome the free agency of the contracting party, whether parent or child, husband or wife, such influences afford an equitable defense. To this end all the cases unerringly and unwaveringly tend, and that the undoubted statement of facts in the case before me bring it within these principles requires but little argument. Mr. Lomerson demanded the mortgage of Mrs. Johnson to secure the debt of her husband, and informed her of the criminal liability of her husband. Now, Mrs. Johnson and her daughter both swear that Mr. Lomerson said that proceedings had already been begun by those interested against her husband. This Mr. Lomerson denies. Now, while he may not have so expressed himself, it is quite impossible for me to believe that some allusion was not made to proceedings pending or anticipated. Persons so little acquainted with court transactions would not be likely to manufacture such statements, however much they might become confused in the repetition of such statements. But at all events, the question of criminal liability must have been introduced byMr. Lomerson, and it must have been for a purpose; and that purpose must have been to get Mrs. Johnson to join in the mortgage. He went there for that purpose, and he made, as his own testimony most clearly shows, the very most of the fact in order to produce the desired effect on her mind. I can conceive of nothing in such cases more likely to overcome free agency.

I think the defendant is entitled to the benefit of her defense, and that the bill of complaint should be dismissed, with costs.

NOTE.

DURESS—WHAT CONSTITUTES. Duress exists where one is induced by some unlawful act to make a contract or perform some act under circumstances which prevent his exercising free will. It is either of the person or the goods of the party constrained. Hackley v. Headley, (Mich.) 8 N. W. Rep. 511.

Duress is an actual or threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract or to discharge one. King v. Williams, (Iowa,) 21 N. W. Rep. 502.

To constitute duress by threats of illegal arrest, the act which the party seeks to avoid must have been done by him through fear of such threatened arrest. Flanigan v. City, (Minn.) 31 N. W. Rep. 359.

To recover on the ground of duress, money paid upon a note executed in pursuance of an illegal contract, duress at the time of payment (and not merely at the time of giving the note) must be shown. Schultz v. Culbertson, (Wis.) 1 N. W. Rep. 19.

One who obtains a note and mortgage from an irregular practitioner of medicine, by means of threats to send him to the penitentiary for having made an alleged indelicate, indecent, and injurious examination of the daughter of the former, while treating her for supposed suppression of the menses, obtains no lawful property in such note and mortgage, and the same will be enjoined. Hullhorst v. Tscharner, (Neb.) 17 N. W. Rep. 259.

Exchange of receipts and settlement of accounts, compelled by taking advantage of financial embarrassments, and threatening ruin by stopping payments due by others, is obtained by duress, and cannot be sustained. Vine v. Glenn, (Mich.) 1 N. W. Rep. 997.

If a person is in a perturbed state of mind, and his debtor takes advantage of his condition, and employs menace to compel him to cancel the debt, it would be a gross fraud; and the debtor could no more plead the relinquishment of the debt as a defense than if he had compelled it by the direct use of physical force. Parmentier v. Pater, (Or.) 9 Pac. Rep. 59.

The compelling by one person of another to hitch his mules to his wagon, and drive to a specified place, with order to leave the team at such place, amounts to duress of the person and dominion of the property of the individual so ordered, for which he is entitled to his action for conversion. Murphy v. Hobbs, (Colo.) 5 Pac. Rep. 637.

Where the defendant causes the plaintiff to be arrested on a charge of fornication with defendant's daughter, for the purpose of compelling the payment of money in settlement, and the plaintiff, under duress, and to procure his release, makes such settlement, the defendant thereupon agreeing not to prosecute him, the money paid on such settlement may be recovered back. But if such money was paid by the plaintiff voluntarily, and after the duress and the influence thereof had ceased, it cannot be recovered. Heckman v. Swartz, (Wis.) 24 N. W. Rep. 473.

In an action of ejectment defendant claimed title under a deed from plaintiff. It appeared that while plaintiff was in possession defendant purchased the land at sheriff's sale, under an execution against a third party, and then, with the sheriff, went to plaintiff and threatened to turn him out of possession unless he executed the deed in question. The only consideration for the deed was that plaintiff should have the growing crop. Held, that the deed, being obtained by duress and fraud, conveyed to defendant no title as against plaintiff. Findley v. Hulsey, (Ga.) 4 S. E. 902.

In an action to recover money paid under duress, on a liability arising under a contract in writing, which, after setting forth the advancement of money by the defendants to the plaintiff, for which he gave his promissory notes, secured by mortgage on plaintiff's vessel, provided that the defendants were "to have as their own one shilling per thousand feet of all lumber shipped on said schooner, * * * which amount they may retain upon all lumber shipped for themselves, and which amount shall be paid over to them" by the plaintiff on all lumber shipped for other parties, the court instructed that, if plaintiff knew at the time of the payment of the shilling per thousand that it was a bonus, and so paid it, he could not recover; but if plaintiff paid the defendants more than was due upon the notes and mortgage for principal and interest, and paid the shilling per thousand as a bonus, by reason of threats by defendants to seize and sell the vessel under the mortgage, he is "entitled to recover the excess so paid, with interest, held correct. Dykes v. Wyman, (Mich.) 34 N. W. Rep. 561.

When there is no arrest, no imprisonment, no actual force, and it is claimed that a promise was obtained by duress per minas, then whether or not the promise was obtained by duress must usually he a question of fact. Dunham v. Griswold, (N. Y.) 3 N. E. Rep. 76.

In a suit on a promissory note made by defendant and her husband to plaintiff's order, defendant alleged that her signature thereto was obtained by duress and threats on her husband's part; held, that a ruling that, if she signed the note under duress, it was immaterial whether plaintiff knew when he received it that it was so signed, was properly refused. Fairbanks v. Snow, (Mass.) 13 N. E. Rep. 596.

Duress at common law, when no statute is violated, is a personal defense that can only be set up by the person subjected to the duress, and duress to the principal upon a bond will not avoid the obligation of the surety; at least, unless the surety, at the time of executing the obligation, is ignorant of the circumstances which made it voidable by the principal. Hazard v. Griswold, 21 Fed. Rep. 178.

Where a wife was induced by the importunities of her husband to sign a mortgage to make up his deficiencies as county treasurer, and she duly acknowledged the same before a justice and witnesses, but subsequently, on the same day, upon the justice and witnesses returning to her house, she stated that she had been "forced to sign, "of which the mortgagee had no notice, held, the mortgage was valid. Lefebvre v. Dutruit, (Wis.) 8 N. W. Rep. 149.

Mere threats of criminal prosecution do not constitute duress, when neither warrant has been issued nor proceedings commenced. Higgins v. Brown, (Me.) 5 Atl. Rep. 269: Hilborn v. Bucknam, (Me.) 7 Atl. Rep. 272; Sieber v. Weiden, (Neb.) 24 N. W. Rep. 215.

A mortgage by a wife of her separate estate for money embezzled by her husband is not made under duress because for the purpose of preventing his prosecution. Mundy v. Whitmore, (Neb.) 19 N. W. Rep. 694.

Where the conveyance was an intelligent, voluntary act, the mere fact that the deed was executed reluctantly, and after some threats had been made, is insufficient to establish duress. Hamilton v. Smith, (Iowa,) 10 N. W. Rep. 276.

Where an ice company had contracted to furnish a season's supply for a certain price, held, its refusal to perform the contract, and the exaction of a higher price, did not constitute legal duress. Goebel v. Linn, (Mich.) 11 N. W. Rep. 284.

An angry command by the husband to the wife, to "dry up that crying, and go write your name," unaccompanied by threats of personal violence, or any attempt to exercise it, is not sufficient to establish the defense of duress in an action to foreclose a mortgage on the homestead of the wife, in which she alleges that her signature to, and acknowledgment of, the same was procured by threats of personal violence by her husband, in presence of the mortgagee. Gabbey v. Forgeus, (Kan.) 15 Pac. Rep. 866.

A person arrested on capias could not get bail. On giving the plaintiff secured notes, the latter consented to his discharge. The arrest was caused in good faith for an injury which plaintiff supposed had been done by defendant, and the notes were taken in satisfaction of the injury, though they did not fully compensate it. Held, that a bill would not lie for the cancellation of the securities on the ground that they had been obtained by duress. Prichard v. Sharp, (Mich.) 16 N. W. Rep. 798.

It is not duress for an officer to threaten to take an execution debtor to jail unless he secures the debt by a mortgage of personal property, when the officer has in his hands legal process requiring him so to do. Bunker v. Steward, (Me.) 4 Atl. Rep. 558.

A. sold to B., a married woman, certain property, agreeing to give her time for the payment of the balance of the purchase money. Subsequently he (A.) refused to deliver possession of the property unless B. would execute to him, as security for said balance, a mortgage of her separate property. This, at first, she refused to do, but finally she and her husband acceded to A.'s request, and executed the mortgage. Held, that there was neither fraud nor coercion in the demand for the mortgage, and that B. could not complain of a result which she might have avoided by insisting upon performance of the original contract. Zentz v. Shaner, (Pa.) 7 Atl. Rep. 197.