person may be appalled by threats or an offer of violence, yet if he afterwards has time to compose his mind, regain his ordinary firmness of disposition, and fortify his position against the possible execution of the threats, it will be necessary for him to show very distinctly that the act which he seeks to avoid was directly controlled by fear, and not the result of his free and deliberate choice; and the strength of the evidence which will be required of him on this point will increase as the intervening time grows longer.2 25 § 224. Same; By and Against Whom Plea of Duress Available.-Duress to avoid a contract or conveyance must be the act of the person against whom it is alleged, performed by himself or by his agent, or it must have been imposed with his knowledge and taken advantage of by him to obtain the contract or conveyance in question; and duress exerted by a third person will not avoid a contract made with one who was not cognizant of it or did not authorize or direct it or participate in it.20 Thus, for example, duress exercised by a husband over his wife to force her to sign a deed of her property (or to join in his deed) will not vitiate it if the grantee had no knowledge of it, or was not privy to it or did not in any way connive at it or participate in it.27 And so, a mortgage is not vitiated by force or duress exerted by one of the mortgagors upon the other, but not participated in by the mortgagee.28 On the same principle, it is said that if one, being attacked by robbers, promises an innocent person a sum of money to deliver him out by her husband and the grantee, the deed will be void, although acknowledged by her before a justice of the peace as her own act. Gilley v. Denman, 185 Ala. 561, 64 South. 97. 25 Parker v. Allen, 33 Tex. Civ. App. 206, 76 S. W. 74; Iredell v. Klemm, 3 Pa. Co. Ct. R. 137. 26 Ely v. Hartford Life Ins. Co., 33 Ky. Law Rep. 272, 110 S. W. 265; Hintz v. Hintz, 222 Ill. 248, 78 N. E. 565; Bush v. Brown, 49 Ind. 573, 19 Am. Rep. 695; Mullin v. Leamy, 80 N. J. Law, 484, 79 Atl. 257; Osborn v. Robbins, 7 Lans. (N. Y.) 44; Guinn v. Sumpter Valley Ry. Co., 63 Or. 368, 127 Pac. 987. 27 Hughie v. Hammett, 105 Ga. 368, 31 S. E. 109; Harper v. McGoogan, 107 Ark. 10, 154 S. W. 187; Rogers v. Adams, 66 Ala. 600; Line v. Blizzard, 70 Ind. 23; Fightmaster v. Levi (Ky.) 17 S. W. 195. But see Brown v. Peck, 2 Wis. 261. 28 Robinson v. Randall, 147 Ky. 45, 143 S. W. 769. 30 of their hands, the obligation is valid, though contracted under the influence of the fear of death.29 In another case, defense was made to the enforcement of a contract for the sale of lands on the ground that it was made when the vendor was under duress, having been severely beaten by a mob and driven from the county. It was shown that the purchaser knew of the beating, but not that he was implicated in it, and the contract was held valid and enforceable. Again, a written contract by which the manager of a steamship company employed the libelant as master for two years, signed on board the vessel where libelant had gone to take charge, but in pursuance of a prior agreement, cannot be avoided for duress on the manager's testimony that the vessel was surrounded by strikers in tugs, who had imperiled his life, and that he signed in order to get the vessel into commission, on libelant's refusal to accept the employment without such contract. It is not necessary, however, that threats of injury to person or property, made to procure the execution of a contract, should be made directly to the person to be influenced, if they are made to a third person with intent that they should be communicated to him and are so communicated. 32 It is also a general rule that duress can be pleaded only by the party upon whom it was exercised and whom it influenced; and that any other party to the same contract, not so influenced, will be bound by the contract.33 But it seems that one whose connection with the contract is that of a surety may avail himself of the defense that the contract was extorted from his principal by duress, provided that he signed the obligation without knowledge of the duress. 29 Dimmitt v. Robbins, 74 Tex. 441, 12 S. W. 94. 30 Talley v. Robinson, 22 Grat. (Va.) 888. 31 Jenkins S. S. Co. v. Preston, 186 Fed. 609, 108 C. C. A. 473. 34 34 Hazard v. Griswold (C. C.) 21 Fed. 178; Bowman v. Hiller, 130 Mass. 153, 39 Am. Rep. 442; Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188; Schuster v. Arena, 83 N. J. Law, 79, 84 Atl. 723; Osborn v. Robbins, 36 N. Y. 365; Fountain v. Bigham, 235 Pa. 35, 84 Atl. 131, Ann. Cas. 1913D, 1185; Griffith v. Sitgreaves, 90 Pa. 161. But see George Colon & Co. v. East 189th Street Bldg. & Const. Co., 141 App. Div. 441, 126 N. Y. Supp. 226. § 225. Duress Renders Contract Voidable, Not Void.A contract or conveyance obtained by means of duress is ordinarily voidable at the election of the party coerced, but not entirely void,35 except, perhaps, in cases where the duress was so severe and overwhelming that the person on whom it was imposed was converted into a mere automaton, 36 This means that the transaction cannot be treated as a mere nullity, but that the injured party has his election. either to repudiate it or to ratify and affirm it. If he chooses to repudiate it, his decision must be distinctly declared, and he must exercise his option within a reasonable time, and ordinarily he must restore the status quo by returning to the other party any benefits or considerations which he may have received under the contract.39 On the other hand, though the contract may be voidable for duress, yet it may be rendered valid by a subsequent ratification,* and such ratification may be inferred from the conduct of the party, as, for instance, where he accepts and retains the benefits flowing to him from the contract,2 or where he makes payments under the contract from time to time and allows a period of several years to elapse without seeking any redress. So, in a suit to set aside a mortgage as having been procured by duress, proof of the subsequent voluntary execution by the complainant of an instrument 38 41 43 40 85 Carter v. Couch, 84 Fed. 735, 28 C. C. A. 520; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805; Veach v. Thompson, 15 Iowa, 380; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657; Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S. W. 6; Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Brown v. Worthington, 162 Mo. App. 508, 142 S. W. 1082; George Colon & Co. v. East 189th Street Bldg. & Const. Co., 141 App. Div. 441, 126 N. Y. Supp. 226; Doolittle v. McCullough, 7 Ohio St. 299; Baldwin v. Murphy, 82 Ill. 485; Schultz v. Culbertson, 46 Wis. 313, 1 N. W. 19. se Royal v. Goss, 154 Ala. 117, 45 South. 231. 87 Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 36 L. R. A. (N. S.) 1029; Knowlton v. Ross, 114 Me. 18, 95 Atl. 281. 88 Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129. 39 Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S. W. 6. 40 Brown v. Worthington, 152 Mo. App. 351, 133 S. W. 93. 41 Schee v. McQuilken, 59 Ind. 269. 42 Connolly v. Bouck, 174 Fed. 312, 98 C. C. A. 184. 43 Haldane v. Sweet, 55 Mich. 196, 20 N. W. 902. which operated as a ratification of such mortgage, with full knowledge of the facts, establishes prima facie the defense of ratification; and assuming that a knowledge by the complainant of his legal right to disaffirm was essential to a valid ratification, the burden of going forward with evidence to prove want of such knowledge rests upon the complainant.** § 226. Duress as Ground for Rescission or Cancellation. A party as to whom a contract is voidable for duress has the right to rescind it for that cause, provided he acts with reasonable promptness. This is the rule of the common law, and it is also enacted into statute law in some of the states, as, for instance, where it is provided that "a party to a contract may rescind the same, if the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party." 45 Moreover, it is within the jurisdiction of a court of equity to set aside or cancel, for the cause of duress, a deed conveying real property, or a mortgage, if given for a debt which the plaintiff did not owe, and if the bill is filed before the maturity of the instrument, or a simple contract, or even a promissory note. But duress is not of itself a distinct ground of equitable jurisdiction. For this purpose it is treated as a species of fraud, particularly when employed as a means of obtaining a gift, grant, or conveyance of property. And the limits and conditions upon the right of 50 46 47 48 44 National City Bank v. Wagner, 216 Fed. 473, 132 C. C. A. 533. 45 Civ. Code Cal., § 1689; Rev. Civ. Code Mont., § 5063; Rev. Civ. Code N. Dak., § 5378; Rev. Civ. Code S. Dak., § 1283; Rev. Laws Okl. 1910, § 984. 46 Bray v. Thatcher, 28 Mo. 129; Anderson v. Anderson, 17 N. D. 275, 115 N. W. 836; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805. See London v. Crow, 46 Tex. Civ. App. 190, 102 S. W. 177. 47 Fry v. Piersol, 166 Mo. 429, 66 S. W. 171; Kingsley v. Kingsley, 130 Ill. App. 53. 48 Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129. 49 Kingsley v. Kingsley, 130 Ill. App. 53. 50 Treadwell v. Torbert, 133 Ala. 504, 32 South. 126. Eureka Bank v. Bay, 90 Kan. 506, 135 Pac. 584. And see rescission of a contract obtained by fraud apply generally to agreements voidable for duress.1 Thus, a party who means to avoid a transaction into which he was forced against his will is required to act with reasonable promptness after the duress is removed,52 and also he is generally bound to restore the other party to the same position he occupied before the contract or conveyance was made, and restore to him all that he has received in execution of it.53 Nor will equity be disposed to interfere in this class of cases if there is an adequate remedy at law. Thus, the fact that a note was executed under duress is a defense which may be made at law, and hence, when a bill for an injunction against the enforcement of the note shows that an action thereon is pending, and it does not appear from anything stated in the bill that such defense at law is in any way embarrassed or inadequate, equity will not entertain jurisdiction. And so, where the grantor in a deed which was procured by duress is not in possession of the land, and can bring ejectment, he cannot maintain an action in equity to cancel the deed or remove the cloud from his title.55 And even where jurisdiction is undoubted, to justify a court in rescinding a contract on the ground of duress, the testimony must be cogent, and the case must be made out by a clear preponderance of the evidence, and the complainant must make out such a case as will overcome the presumption of fair dealing. Further, it must appear that the act brought about by the exertion of duress was injurious to the party coerced or gave an unlawful benefit or advantage to the other party. For instance, where there is a voluntary delivery of a deed, with intent to pass title, and the grantor afterwards regains possession, it is no ground for setting 54 51 Royal v. Goss, 154 Ala. 117, 45 South. 231. 52 Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S. W. 6. 58 See Ring v. Ring, 127 App. Div. 411, 111 N. Y. Supp. 713; Davis v. Van Wie (Tex. Civ. App.) 30 S. W. 492; Van Dyke v. Wood, 60 App. Div. 208, 70 N. Y. Supp. 324. 54 McLin v. Marshall, 1 Heisk. (Tenn.) 678. 55 Treadwell v. Torbert, 133 Ala. 504, 32 South. 126. 56 Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407. BLACK RESC.-38 |