as "moral duress not justified by law." 207 The illegality of the act or demand is the essential matter. Examples may be seen in the unlawful exaction of customs duties or internal revenue taxes, usually accompanied by the detention of property to force payment.208 Thus, where a person whose property is illegally taxed is apprehended or his goods seized, or the tax collector with a warrant threatens immediately to arrest him to coerce payment, or to levy on and sell property to satisfy the tax, or to begin a criminal prosecution for non-payment, thereby inducing the belief that the menace will be put into execution, in consequence of which the tax is paid, the payment is involuntary and recoverable.20 209 So, payment of a water tax or rent under threat of turning off the water in case of continued refusal is payment under compulsion, and if the charge is excessive, the excess may be recovered back.210 And an agreement by a steamship company to pay the hospital expenses of immigrant passengers suffering from contagious diseases on their arrival, induced by threats of the immigration officers that they will otherwise detain such passengers on the vessel until their recovery, is made practically under duress, and being for something for which the company was not legally liable, is without consideration and cannot be enforced by the government.211 But where a municipal corporation was authorized by a statute to erect and operate its own waterworks, and decided to act upon this authority, and a subsequent statute empowered it to purchase from a private corporation owning waterworks which then supplied the city, but not possessing an exclusive franchise, the fact that the competition by the city with the private corporation, if the city should erect its own waterworks, would 207 Maxwell v. Griswold, 10 How. 242, 13 L. Ed. 405. 208 United States v. Tingey, 5 Pet. 115, 8 L. Ed. 71; Maxwell v. Griswold, 10 How. 242, 13 L. Ed. 405; Swift Co. v. United States, 111 U. S. 22, 4 Sup. Ct. 247, 28 L. Ed. 343; Robertson v. Frank Bros. Co., 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Ed. 236. See Silliman v. United States, 101 U. S. 465, 25 L. Ed. 987. 209 Johnson v. Crook County, 53 Or. 329, 100 Pag. 294, 133 Am. St. Rep. 834. 210 Westlake v. City of St. Louis, 77 Mo. 47, 46 Am. Rep. 4. * be ruinous to the corporation, was held not to render the sale of its waterworks to the city under the second statute void as procured by duress.212 In the case cited it was said: "If a person apprehensive of competition sells his property for less than its fair value, it cannot be said that in law the sale was voluntary in form only, and in fact compulsory. It is, however, a kind of compulsion which will always exist so long as competition exists. But this is not the kind of compulsion that amounts in law to duress, because it lacks the essential ingredient of duress, namely, illegality. It is unlawful compulsion which constitutes duress. Duress by the government or its officers, in this class of cases, is defined by the Supreme Court as 'moral duress not justified by law.' It must be the pressure arising from unlawful acts or demands on the part of the government or its officers to produce that constraint of will or action, or state of necessity or compulsion, which renders acts voluntary in form involuntary and void. In this class of cases, the test is, was the cause of the compulsion lawful or unlawful? If the compulsion be founded on lawful competition, or the threat of lawful competition, there is no element of illegality about it. Such compulsion is justified by law. The whole question of compulsion or duress in this case turns upon whether municipal competition, actual or threatened, under the authority of the state, was justified by law." 212 Newburyport Water Co. v. City of Newburyport (C. C.) 103 Fed. § 237. CHAPTER X UNDUE INFLUENCE Definitions of Undue Influence. 238. Duress and Fraud Distinguished. 239. Undue Influence as Ground for Rescission or Cancellation. 240. Fraudulent or Unfair Purpose Essential. 241. Acquisition and Exertion of Undue Influence. 242. 243. Effectiveness of Influence Must Appear. Influence Based on Gratitude and Affection. 244. Benefit or Want of Independent Advice. 245. Time of Exerting Influence with Reference to Gift or Grant. 246. Degree or Measure of Influence Required. 247. Age and Infirmity of Grantor or Donor. 248. Temporary or Permanent Mental Weakness of Subject. 249. Confidential Relations of Parties in General. 250. Dealings Between Attorney and Client. 251. Dealings Between Husband and Wife. 252. § 237. Definitions of Undue Influence.-Undue influence consists in persuasion carried to the point of overpowering the will, or such a control over the person in question as prevents him from acting intelligently, understandingly, and voluntarily, and in effect destroys his free agency and constrains him to do that which he would not have done if such control had not been exercised. It is any influence, however exercised, which destroys free agency, and substitutes the will of another for that of the person in whose name the act brought in judgment is done. It must be equivalent to a species of moral coercion, and influence obtained by flattery, importunity, threats, superiority of will, mind, or character, or by any art which would 1 Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. 573; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885; Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150; Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112; Marx v. McGlynn, 88 N. Y. 370; In re Logan's Estate, 195 Pa. 282, 45 Atl. 729; Mooney v. Olsen, 22 Kan. 69; Bannon v. P. Bannon Sewer Pipe Co., 136 Ky. 556, 119 S. W. 1170, 124 S. W. 843. 2 Wing v. Havelik, 253 Mo. 502, 161 S. W. 732. 8 In re Carroll's Will, 50 Wis. 437, 7 N. W. 434. give dominion over the mind to such an extent as to destroy free agency, is undue influence. But not every influence is undue. A perfectly legitimate influence may be acquired and exercised over the mind of another, and its employment is not "undue" merely because it impels him to do something which he was at first reluctant or even unwilling to do. Thus, suggestion and advice, addressed to the judgment or conscience, or appeals to one's generosity or sense of duty, based on past kindness, love, esteem, or gratitude, do not of themselves constitute undue influence, that is, when not accompanied by any fraud or deception or by the employment of coercion or any other illegitimate means of control. Generally speaking, influence exerted by means of advice, argument, persuasion, suggestion, solicitation, or entreaty, is not undue, unless it is so importunate and persistent, or otherwise so operates, as to subdue and subordinate the will of the person practised upon and deprive him of his freedom of choice and decision." This subordination of the will is the real test. To convince the reason or to awaken an impulse of generosity is not to control the will. Advice, argument, or persuasion does not constitute undue influence, if the grantor's mind acts freely thereunder and he has the moral power to resist and reject it if he chooses, and there is no necessary inference of undue influence from the mere fact that the exertion of such means resulted in the execution of a deed or other instrument which the party would not otherwise have made." In fact, no definition of what the law denominates "undue influence" can be framed which will furnish a safe and reliable test for every case. "All that can be said in the way of formulating a general rule on this subject is that whatever destroys free agency, and constrains the person whose act 4 Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805. 5 Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788. 6 Burnett v. Smith, 93 Miss. 566, 47 South. 117; Bowdoin College v. Merritt (C. C.) 75 Fed. 480; Wiltsey v. Wiltsey, 153 Iowa, 455, 133 N. W. 665; Breeding v. Tobin, 13 Ky. Law Rep. 842, 18 S. W. 773; Wherry v. Latimer, 103 Miss. 524, 60 South. 563, 642; Pritchard v. Pritchard, 2 Tenn. Ch. App. 294. Bishop v. Hilliard, 227 Ill. 382, 81 N. E. 403. is brought in judgment to do what is against his will, and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion. The extent or degree of the influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, sufficient to destroy free agency, so that the act put in judgment was the result of the domination of the mind of another, rather than the expression of the will and mind of the actor?" 8 It should be added that statutory definitions have been given in the codes of some of the states, as follows: "Undue influence consists (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (2) in taking an unfair advantage of another's weakness of mind; or (3) in taking a grossly oppressive and unfair advantage of another's necessities or distress." § 238. Duress and Fraud Distinguished.-The distinction between duress and undue influence is not very clearly marked. In some cases both are present. In others, the two kinds of constraint so blend into each other that no clear line of demarcation can be pointed out. But generally, duress implies the yielding of the mind and will either to physical constraint actually exerted or to the fear of some threatened and intolerable misfortune, while undue influence accomplishes a like result by the exertion of authority, importunity, or the abuse of confidence, or by playing upon the passions, prejudices, or superstitions of a mind incapable of vigorous resistance. Duress drives, while undue influence leads, but both result in bringing the mind and will of the subject to the execution of something which he would not have done if left in perfect freedom. Influence which is certainly undue may be exercised by physical coercion or threats of personal harm or by such other 8 Haydock v. Haydock, 33 N. J. Eq. 494. Civ. Code Cal., § 1575; Rev. Civ. Code Mont., § 4981; Rev. Civ. Code N. Dak., § 5296; Rev. Civ. Code S. Dak., § 1204; Rev. Laws Okl. 1910, § 906. |