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187; Haight v. New York, 99 N. Y. 280, 1 defendant is not in any way presented in N. E. 883. the action.

It is a general rule that a judgment is

Chase, J., delivered the opinion of the conclusive between the parties and their court:

When an easement is carved out of one property for the benefit of another, the market value of the servient estate is thereby lessened, and that of the dominant increased, practically by just the value of the ease ment; the respective tenements should therefore be assessed accordingly. People ex rel. Poor v. Wells, 139 App. Div. 83, 87, 124 N. Y. Supp. 36, affirmed on opinion below in 200 N. Y. 518, 93 N. E. 1129. See Blenis v. Utica Knitting Co. 73 Misc. 61, 130 N. Y. Supp. 740, affirmed in 149 App. Div. 936, 134 N. Y. Supp. 1126, affirmed in 210 N. Y. 561, 104 N. E. 1127; Smith v. New York, 68 N. Y. 552, 557; People ex rel. Topping v. Purdy, 143 App. Div. 389, 128 N. Y. Supp. 569, affirmed in 202 N. Y. 550, 95 N. E. 1137; Re Hall, 116 App. Div. 729, 102 N. Y. Supp. 5, affirmed in 189 N. Y. 552, 82 N. E. 1127.

privies upon all matters embraced within the issues in the action which were or might have been litigated therein. It is immaterial whether issues are joined by an answer to the complaint or tendered by the plaintiff and left unanswered. The rule applies as well to a judgment by default, when the facts stated warrant the relief sought, as to one rendered after contest. Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649.

Was the question whether the defendants had easements in the property described, that are superior to the tax lien, an issue in the action? The answer to the question should be determined from the judgment roll.

The judgment roll was referred to in the notices of motion, but it is not a part of the record. In one of the affidavits upon which the plaintiff's motion is founded it is stated that certain defendants were named as such to cut off possible easements or rights of way. The statement, we assume, is that of the affiant, and not a quotation from the complaint. It is in one of the affidavits stated that the complaint alleges: "That all of the defendants have or may have, and the plaintiff believes that such defendants have or may have, an interest in or claim upon the real property hereinafter described by way of lien, mortgage, devise, dower right, purchase, easement, operation of law, inheritance from or marriage with any of the above-named defendants or otherwise."

The assessment of the lot described in the judgment did not include the easements appurtenant to the adjoining real property. The assessment of the servient estate was subject to the easements included in the assessments of the dominant estate. As a necessary consequence it has been held that, on the foreclosure of a tax lien and a sale of the premises pursuant to §§ 10351039 of the Greater New York charter, private easements of light, air, and access of adjoining owners over the land sold are not extinguished. If property rights which are excluded from an assessment are sold or extinguished by a tax sale, there would be It is not disputed that the defendants a taking of property without due process were the owners of easements appurtenant of law. Jackson v. Smith, 153 App. Div. to adjoining lands. Such easements were 724, 138 N. Y. Supp. 654, affirmed on opin-acquired prior to the tax lien and were not ion below by decision handed down herewith in 213 N. Y. 630, 107 N. E. 1079.

The owners of the property adjoining the property described at the tax sale, including the easements over the property so described, were not necessary parties to the action to foreclose the tax lien. They were made parties to the action, and the question now arises whether the easements of those who made default in appearing in the action are cut off by the judgment taken against them by such default. We are not in this case considering the propriety of making a person who claims in hostility to a tax lien a party defendant in an action to foreclose such lien. The question before the court is as to the effect of making a person claiming an interest superior to a tax lien a party in a case, where the propriety of making such a person a party

subject to it.

If a plaintiff in any foreclosure action chooses to make a person, who claims that he holds a lien upon or interest in the property sought to be foreclosed that is prior and superior to the claim of the plaintiff, a party defendant, either for the purpose of determining the amount of the claim and paying it from the proceeds of sale, or of having the same declared to be subject and subordinate to his lien, such claim should be clearly stated in the complaint. When a plaintiff so clearly states his claim in a complaint, the defendant must appear in the action and present his claim by appropriate pleading or pleadings, and, if necessary, by proof, or suffer the ordinary consequences of a default.

If the plaintiff's claim is not so clearly stated in the complaint, but some general allegations are used therein to the effect

PPEAL by respondent from a decree of

that a claim is made by the defendant "as the County Court for Shelby County

subsequent purchaser or encumbrancer or otherwise," it will not bar the defendant of rights that are superior and paramount to that of the plaintiff, if he default therein. Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. 706; Merchants' Bank v. Thomson, 55 N. Y. 7; Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y. 127; Goebel v. Iffla, supra; Nelson v. Brown, 144 N. Y. 384, 39 N. E. 355; Anderson v. McNeely, 120 App. Div. 676, 105 N. Y. Supp. 278; Fern v. Osterhout, 11 App. Div. 319, 42 N. Y. Supp. 450; Barker v. Burton, 67 Barb. 458.

Applying the rule stated to this case, it does not appear from the record that there was anything in the complaint to show the defendants that the plaintiff disputed or sought to bar their prior and superior easement of light, air, and access over the property which it sought to sell in the action. As the question of the defendants' having prior and superior easements to the tax lien was not tendered as an issue in the foreclosure action, the defendants are not bound by the judgment therein.

The easements over the real property bid off by the appellant at the foreclosure sale materially affected its value, and he was not tendered a title to such real property that he was bound to accept.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in both courts.

Willard Bartlett, Ch. J., and Werner, Hiscock, Hogan, Miller, and Cardozo, JJ., concur.

ALABAMA SUPREME COURT.

Duress

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A. G. EMBREY, Appt.,

V.

H. W. ADAMS.

(- Ala.

68 So. 20.)

threat to prosecute parents.

A deed secured for a grossly inadequate consideration, by threats to send the grant or's father to the chain gang for an alleged

offense, will be set aside for duress.

Note.

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(February 11, 1915.)

overruling a demurrer to a bill filed to set aside a deed for duress. Affirmed.

The facts are stated in the opinion. Messrs. Riddle, Ellis, & Riddle for appellant.

Messrs. Haynes & Wallace and Samuel Henderson, for appellee:

The court below did not err in its refusal to sustain respondent's demurrers to the bill of complaint, and in not dismissing it for want of equity.

Martin v. Evans, 163 Ala. 657, 50 So. 997; Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 466, 20 So. 651; Holt v. Agnew, 67 Ala. 369; Bishop, Contr. § 718; Glass v. Haygood, 133 Ala. 489, 31 So. 973; Treadwell v. Torbert, 133 Ala. 504, 32 So. 126; Royal v. Goss, 154 Ala. 117, 45 So. 231.

Thomas, J., delivered the opinion of the court:

The bill in this cause avers that appellee, H. W. Adams, owns jointly or as tenant in common with the appellant, A. G. Embrey, certain lands in Shelby county, Alabama; that said lands were purchased and conveyed to appellee and his mother, M. A. Adams; and that, after the death of his mother, appellee's father, H. D. Adams, sold and conveyed said lands by warranty deed to the appellant.

The fifth paragraph of the bill alleges: "That on the 7th day of August, 1908, respondent came to this complainant at or near Harpersville, in Shelby county, Alabama, and stated to him that complainant's father, H. D. Adams, had procured or obtained his money under false pretense. Respondent further told this complainant that, if he did not execute a deed to the said respondent, covering his interest in the lands right then, he (the respondent) would put complainant's father in the chain gang. Upon complainant's refusal to execute the said deed to respondent, he (the said respondent) turned his horses towards Columbiana, stating at the time that he had seen lawyers at Columbiana and would drive down and have the papers issued; that, acting under extreme distress and what he thought the necessity of the case required, he (this complainant) did execute a deed

to said respondent covering said lands, and which was the only property he owned; that

Contracts procured by threats | As opposed to public policy, as compounding of prosecution of a relative.

For the earlier cases on this question, see the notes to City Nat. Bank v. Kusworm, 26 L.R.A. 48; Williamson-Halsell Frazier Co. v. Ackerman, 20 L.R.A. (N.S.) 484; and Ball v. Ball, 37 L.R.A. (N.S.) 539.

a felony.

Supplementing notes in 26 L.R.A. 49, and 20 L.R.A. (N.S.) 484.

As shown in the above notes, contracts procured by threats of prosecution of a relative have been declared invalid for il

the only consideration paid by the said re- conveyance thus executed by complainant spondent to the complainant was the sum and wife be canceled and removed as a of $25, which was totally and wholly in- cloud on complainant's title, upon the payadequate as payment for complainant's ment of the sum of $25, and interest thereinterest in said lands, complainant averring on, to the appellant, and that on final that his interest in said lands was worth hearing said lands be sold for the purpose at least $1,000. Complainant avers that he of dividing the proceeds among the several had no advice and acted hastily and under joint owners or tenants in common. The extreme distress and surprise and without respondent in the court below demurred to due deliberation, and that he forced his the bill on the ground that "the same conwife to sign her name to said deed solely tains no equity." The case being heard by and for the purpose of preventing the prose- the judge of the county court of Shelby, cution and possible conviction of his father." exercising jurisdiction in equity, the deBy the sixth paragraph of the bill it is murrer was overruled. From this action of averred that offer to pay the purchase price the trial court appeal was duly taken, and of $25, with interest thereon, was made, and errors are assigned thereon in this court. readiness on the part of complainant, at all times, to repay the same is also thereby averred.

The prayer of the bill is that the deed of legality of consideration in numerous cases where it is clearly established that there was an agreement not to prosecute.

Thus, where a father, while his son was under arrest on a charge of cheating and swindling in the purchase of a mule, was induced by the seller to sign, as a joint maker with a son, a promissory note for the purchase price of the mule, the induce ment being an agreement by the seller that if the father would sign the note he would withdraw the warrant against the son and stop the prosecution, the acts constituted a defense, in favor of the father, to a suit upon the note. Cromer v. Evett, 11 Ga.

App. 654, 75 S. E. 1056.

So, where the maker of a note forged the indorsements of his father-in-law and brother-in-law, and upon discovering the forgery the payee procured a guaranty of the indorsement from the father-in-law, and brother-in-law, upon the understanding that the maker would not be prosecuted for the forgery if such a guaranty was given, they were not estopped from denying the validity of their signatures, there being a statute in force making an agreement not to prosecute for a felony a crime. Catskill Nat. Bank v. Lasher, 165 App. Div. 548, 151 N. Y. Supp. 191.

What is paid by a father to prevent the arrest of his son upon a warrant issued against him for obtaining money under false pretenses, which charges were absolutely false, may be recovered. Sykes v. Thompson, 160 N. C. 348, 76 S. E. 252. The court pointed out the illegality of the contract and said that a recovery may be sustained by the more innocent party notwithstanding the illegal features of the agreement, especially when the party seeking relief has been induced to enter into the agreement by fraud or undue influence.

But in Higgins v. Sowards, 159 Ky. 783, 169 S. W. 554, a mortgage given to secure a note of the mortgagor's son-in-law, covering the amount of the son-in-law's shortage in his accounts, was sustained where it was evident that the mortgagor was not induced

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The solicitors for the appellant, in the brief filed in this court, thus state the issue: "The sum and substance of the bill is that H. D. Adams, the father of the complainto execute the note and mortgage by way of compounding a felony, there having been no promise not to prosecute the son-in-law.

And where the consideration for the giving of a bond by the father of the defendant in a bastardy proceeding was not the abandonment of the charge of a statutory offense with a girl under the age of consent, but was a relinquishment of a claim for the maintenance of the child, if any, to be born of the illicit relations, the bond was valid and enforceable. Meredith v. Knox, Del. Ch., 83 Atl. 703.

So, in Godding v. Hall, 56 Colo. 579, 140 Pac. 165, it appeared that the defendant's husband was an officer of a bank which had become insolvent through his defalcations, and that she gave her trust deed upon property which had been bought with the misappropriated funds and given to her by the husband, the deed containing a recital as follows: And whereas the time and attention of the late officers of said bank is required to assist in the realization of such assets, and it being the wish and desire of the undersigned that such officers shall not be hampered or delayed by trivial or other persecutions or prosecutions, and therefore the conveyance hereinafter made is upon the condition that their time and attention be left for such assistance," it was held that the deed was valid and enforceable, inasmuch as neither by oral agreement nor by the language of the instrument itself did it appear that there was an agreement that plaintiff's husband should not be prosecuted for the defalcation, and further, even if the court were to give the deed the construction contended for by appellant, still the conveyance would be in full force and effect for the reason that the condition relied on was not a condition precedent, but subsequent, and where a condition is illegal, indefinite, uncertain, unreasonable, or repugnant to the nature of the instrument to which it was annexed, such condition is void and renders the grantee's estate absolute.

ant, sold to and made this respondent a deed to 80 acres of land in Shelby county, for which the respondent paid the said H. D. Adams, thinking thereby that he was acquiring a complete title to the lands involved in this suit." That, when appellant found out that appellee's "father had practised a fraud, he (Embrey) threatened to prosecute and convict H. D. Adams, complainant's father, for obtaining his money under false pretense, and the complainant, W. H. Adams, to keep his father from being prosecuted and convicted, agreed to and did make respondent Embrey a deed to the land, Embrey paying him the additional consideration of $25, etc."

the averment of the bill for relief in a court of equity.

In Kirby v. Arnold, Ala., 68 So. 17, we have collected the general authorities on the subject of duress and undue influence, the consensus of which we believe is decisive of this appeal.

The doctrine is declared in Martin v. Evans, 163 Ala. 657, 50 So. 997, that, where the grantee that a son of the grantor has one conveys lands on the representation by embezzled funds from the grantee, coupled with the threat that the son will be prosecuted for the embezzlement unless the conveyance is executed, the grantor is entitled to have it set aside as having been obtained under duress and undue influence, and with

The demurrer questions the sufficiency of out consideration.

Voidable on the ground of duress. Supplementing notes in 26 L.R.A. 48; 20 L.R.A. (N.S.) 4; and 37 L.R.A. (N.S.) 539.

As shown in the above notes, contracts procured by threats of prosecution of a relative have been declared voidable upon the ground of duress in numerous cases; there being a well-established exception to the general rule that the law does not regard a person as under duress who enters into a contract to relieve another person, and not himself, where the subject of the duress is the wife, husband, parent, child, or other near relative.

To avoid a promissory note given to prevent a threatened imprisonment of the makers' son, it is not necessary that the means used to procure the note were such as to overcome the mind of an ordinary man, but that they were sufficient to overcome the minds of the makers in the con

dition in which they were in at the time; so, where it appeared that the makers of such a note were aged and feeble, and not persons of ordinary courage and firmness, they could repudiate such a contract on the ground of duress, even though the threats would not influence persons differently constituted. Anthony & C. Co. v. Brown, 214 Mass. 439, 101 N. E. 1056.

Where the feelings or affections of a wife are worked upon through criminal proceedings instituted against her husband, and she is induced thereby against her will to convey her property through the medium of her husband to his creditors, to pay his debts and obtain his release from imprisonment, there is duress as to her, and a purchaser from the husband's creditor with notice of the wife's equity cannot prevail in an action to recover the land from her. Jordan v. Beecher, post, 1122.

A married woman who involuntarily mortgages her separate estate or homestead to secure an individual indebtedness of her husband may have the lien canceled in a suit to forclose the mortgage, where she was induced to execute it by the mortgagee's threats to imprison her husband for feloni

ously disposing of mortgaged chattels. Hoellworth v. McCarthy, 93 Neb. 246, 43 L.R.A. (N.S.) 1005, 140 N. W. 141.

A note executed by a woman to save her brother from threatened imprisonment on the charge of embezzlement is void for duress. Kronmeyer v. Buck, 258 III. 586, 45 L.R.A. (N.S.) 1182, 101 N. E.

935.

In Kirby v. Arnold, Ala., 68 So. 17, a deed procured by a man of affairs from an ignorant negro woman for a grossly inadequate consideration, upon threat of prosecution of her aged grandfather, was annulled.

And in EMBREY V. ADAMS, above reported, it was held that a deed secured for grossly inadequate consideration, by threats to have the grantor's father arrested immediately and sent to prison for an alleged fraud in the sale of lands, will be set aside for duress.

The right to avoid a contract because of duress consisting of a threat to imprison a near relative may be extended to a mother-in-law who signs a contract to prevent the prosecution of her daughter's husband, if it appears that the son-in-law and his wife are living in harmony and there is nothing to show any estrangement between the mother-in-law and the son-in-law. Fountain v. Bigham, 235 Pa. 35, 84 Atl. 131, Ann. Cas. 1913D, 1188.

But a married woman cannot avoid a contract and deed of trust executed by her because of dread of prosecution of her husband for embezzlement, where it does not appear that any threat of prosecution of her husband was ever made to her by anyone representing the plaintiff, nor that any representative of the plaintiff induced her to execute the contract and deed of trust by any threat of such prosecution. Goodrum v. Merchants' & P. Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511.

And a mortgage executed by a wife upon her separate property, to indemnify a surety upon the official bond of her husband, and who had misappropriated the funds coming into his hands by virtue of his office, in the hope that, or upon assur

The consideration averred to have been apprehensions not amounting to legal duress. paid for the property involved in this suit Where a fraudulent advantage has been was a grossly inadequate one, and the facts taken of the fears, the affections, or the here are substantially those on which the sensibilities of a party, equity will grant decision was based in Martin v. Evans, relief. Judge Story says that circumstances supra. This wholesome doctrine of relief in of extreme necessity and distress of a party, equity was extended in Kirby v. Arnold, though not accompanied by any direct resupra, to the threat of prosecution of a straint or duress, may so entirely overcome grandfather; and in Holt v. Agnew, 67 Ala. his free agency as to justify the court in 360, 373, to such a threat against a husband. setting aside a contract made by him on In McClintick v. Cummins, 3 McLean, 158, account of some oppression or fraudulent 159, Fed. Cas. No. 8,699, it was said: "The advantage or imposition attendant upon it. father and son may each avoid his obliga- In such case he has no free will, but stands tion by duress of the other; and so a hus-in vinculis. 2 Story, Eq. § 239. band may avoid his deed by duress of his

wife."

But it has long been the habit of courts of equity to relieve parties from contracts made under the influence of threats, or of

Mr. Justice Morton, in Harris v. Carmody, 131 Mass. 51-54, 41 Am. Rep. 188, says: "In a note to Bayly v. Clare, 2 Bownl. & G. 275, 276, in the common bench, Michaelmas term, 7 Jac. 1, it is said that 'the husband ance from her husband that, the execution, have been arrested, and the mother signed of such a mortgage would save him from the mortgage to prevent such arrest, it arrest and imprisonment, is not void for will not be deemed to have been executed want of sufficient consideration. Nor is it under duress. Englert v. Dale, 25 N. D. void as having been obtained under duress, 587, 142 N. W. 169. where it appears that the mortgagee neither in person nor through an attorney or agent resorted to any undue means by way of threats or deception to obtain the execution of such mortgage. Bode v. Jussen, 93 Neb. 482, 140 N. W. 768; Jussen v. Bode, 93 Neb. 490, 140 N. W. 771.

A contract obtained by duress may be ratified; so, where a married woman joined in the execution of a deed in the nature of a mortgage, to secure payment of the value of property which her husband has misappropriated, and later gave a quitclaim deed of her interest in the property, and delayed a suit disaffirming the conveyance for nearly three years, during which time the person to whom the property had been conveyed died, and there was no haste exhibited at the time of the execution of the quitclaim deed, and. no threats made or communicated to her at that time, it was held that she had ratified the deed. Guinn v. Sumpter Valley R. Co. 63 Or. 368, 127 Pac. 987.

And in Maddox v. Rowe, 154 Ky. 417, 157 S. W. 714, where a wife executed a mortgage to a bank of which her husband was an officer, to secure indebtedness which he had incurred to the bank in violation of law, and it appeared that she understood the matter perfectly and was in her usual frame of mind at the time she executed the mortgage, it was held that no such duress was shown as would avoid the mortgage. And in Sulzner v. Cappeau-Lemley & M. Co. 234 Pa. 162, 39 L.R.A. (N.S.) 421, 83 Atl. 103, it was held that a transfer of stock cannot be set aside for duress, because of a threat to imprison the son of the transferrer, who had made the contract for the transfer, if no steps towards the arrest had been taken, where it appeared that the transferrer was an experienced business man of ordinary firmness, and that both he and his son were at liberty to come and go as they chose, and had ample time to consult an attorney had they so desired. The court said: “Ordinarily, when no pro-homestead, and the husband transferred perceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract. The threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment."

A father who was induced by the payee to sign a note in order to save his son from arrest and stop a prosecution for cheating and swindling in the purchase of a mule is not precluded from setting up duress as a defense to an action on the note, without showing that the arrest was illegal by virtue of the statute providing that "legal impris onment, if not used for illegal purposes, is not duress," since the arrest was used for an illegal purpose in coercing the father to sign the note. Cromer v. Evett, 11 Ga. App. 654, 75 S. E. 1056.

Where a husband and wife conveyed their

sonal property to cover a shortage in his
accounts with the corporation by which he
was employed, and it appeared that all of
the proved shortage would have been covered
by the personal property transferred, it was
held, although there was no actual threat
of prosecution, that under the circumstances
the wife's participation in the conveyance
of the homestead was without legal consid-
eration, and, as to her, a decree of the trial
court canceling the conveyance of the home-
stead was aflirmed.
Clement v. Buckley
Mercantile Co. 172 Mich. 243, 137 N. W.
R. L. S.

The threat of a lawful arrest for a crime which has actually been committed is not itself a sufficient ground for the cancelation of a mortgage which has been executed as a result of such threat, to cover the loss occasioned by the commission of such crime; so, where a son had mortgaged his mother's horses for his own debt and in his own 656. name, an offense for which he could legally

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