Imágenes de páginas

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:

privies upon all matters embraced within When an easement is carved out of one the issues in the action which were or might property for the benefit of another, the mar- have been litigated therein. It is immaket value of the servient estate is thereby terial whether issues are joined by an anlessened, and that of the dominant increased, swer to the complaint or tendered by the practically by just the value of the ease plaintiff and left unanswered. The rule ment; the respective tenements should there applies as well to a judgment by default, fore be assessed accordingly. People ex rel. when the facts stated warrant the relief Poor v. Wells, 139 App. Div. 83, 87, 124 N. sought, as to one rendered after contest. Y. Supp. 36, affirmed on opinion below in | Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649. 200 N. Y, 518, 93 N. E. 1129, See Blenis v. Was the question whether the defendants Utica Knitting Co. 73 Misc. 61, 130 N. Y. had easements in the property described, Supp. 740, affirmed in 149 App. Div. 936, that are superior to the tax lien, an issue 134 N. Y. Supp. 1126, affirmed in 210 N. in the action? The answer to the question Y. 561, 104 N. E. 1127; Smith v. New York, should be determined from the judgment 68 N. Y. 552, 557; People ex rel. Topping roll. v. Purdy, 143 App. Div. 389, 128 N. Y. The judgment roll was referred to in the Supp. 569, affirmed in 202 N. Y. 550, 95 notices of motion, but it is not a part of the N. E. 1137; Re Hall, 116 App. Div. 729, record. In one of the affidavits upon which 102 N. Y. Supp. 5, affirmed in 189 N. Y. the plaintiff's motion is founded it is stated 552, 82 N. E. 1127.

that certain defendants were named as such The assessment of the lot described in to cut off possible easements or rights of the judgment did not include the ease. way. The statement, we assume, is that of ments appurtenant to the adjoining real the affiant, and not a quotation from the property. The assessment of the servient complaint. It is in one of the affidavits estate was subject to the easements included stated that the complaint alleges: “That in the assessments of the dominant estate. all of the defendants have or may have, As a necessary consequence it has been held and the plaintiff believes that such defendthat, on the foreclosure of a tax lien and a ants have or may have, an interest in or sale of the premises pursuant to S$ 1035-claim upon the real property hereinafter 1039 of the Greater New York charter, described by way of lien, mortgage, devise, private easements of light, air, and access dower right, purchase, easement, operation of adjoining owners over the land sold are of law, inheritance from or marriage with not extinguished. If property rights which any of the above-named defendants or otherare excluded from an assessment are sold or wise.” 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 here subject to it. with in 213 N. Y. 630, 107 N. E. 1079. If a plaintiff in any foreclosure action

The owners of the property adjoining chooses to make a person, who claims that the property described at the tax sale, in- he holds a lien upon or interest in the cluding the easements over the property so property sought to be foreclosed that is described, were not necessary parties to the prior and superior to the claim of the plainaction to foreclose the tax lien. They were tiff, a party defendant, either for the purmade parties to the action, and the ques. pose of determining the amount of the tion now arises whether the easements of claim and paying it from the proceeds of those who made default in appearing in the sale, or of having the same declared to be action are cut off by the judgment taken subject and subordinate to his lien, such against them by such default. We are not plaint. When a plaintiff so clearly states

claim should be clearly stated in the comin this case considering the propriety of his claim in a complaint, the defendant must making a person who claims in hostility to appear in the action and present his claim a tax lien a party defendant in an action by appropriate pleading or pleadings, and, to foreclose such lien. The question before if necessary, by proof, or suffer the ordithe court is as to the effect of making a

nary consequences of a default, person claiming an interest superior to a If the plaintiff's claim is not so clearly tax lien a party in a case, where the pro- stated in the complaint, but some general priety of making such a person a party'allegations are used therein to the effect

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that a claim is made by the defendant "as PPEAL by respondent from a decree of subsequent purchaser or encumbrancer or the County Court for Shelby County otherwise,” it will not bar the defendant of overruling a demurrer to a bill filed to set rights that are superior and paramount to aside a deed for duress. Affirmed. that of the plaintiff, if he default therein. The facts are stated in the opinion. Lewis v. Smith, 9 N. Y. 502, 61 Am. Dec. Messrs. Riddle, Ellis, & Riddle for ap706; Merchants' Bank v. Thomson, 55 N. pellant. Y. 7; Emigrant Industrial Sav. Bank v. Messrs. Haynes & Wallace and Samuel Goldman, 75 N. Y. 127; Goebel v. Iffla, su- Henderson, for appellee: pra; Nelson v. Brown, 144 N. Y. 384, 39 The court below did not err in its reN. E. 355; Anderson v. MeNeely, 120 App. fusal to sustain respondent's demurrers to Div. 676, 105 N. Y. Supp. 278; Fern v. the bill of complaint, and in not dismissing Osterhout, 11 App. Div. 319, 42 N. Y. Supp. it for want of equity. 450; Barker v, Burton, 67 Barb. 458.

Martin v. Evans, 163 Ala. 657, 50 So. Applying the rule stated to this case, it 997; Hartford F. Ins. Co. v. Kirkpatrick, does not appear from the record that there 111 Ala. 466, 20 So. 651; Holt v. Agnew, 67 was anything in the complaint to show the Ala. 369; Bishop, Contr. § 718; Glass v. defendants that the plaintiff disputed or Haygood, 133 Ala. 489, 31 So. 973; Treadsought to bar their prior and superior ease- well v. Torbert, 133 Ala. 504, 32 So. 126; ment of light, air, and access over the prop- Royal v. Goss, 154 Ala. 117, 45 So. 231. erty which it sought to sell in the action. As the question of the defendants' having Thomas, J., delivered the opinion of the prior and superior easements to the tax court: lien was not tendered as an issue in the The bill in this cause avers that appellee, foreclosure action, the defendants are not H. W. Adams, owns jointly or as tenant bound by the judgment therein.

in common with the appellant, A. G. EmThe easements over the real property bid brey, certain lands in Shelby county, Alaoff by the appellant at the foreclosure sale bama; that said lands were purchased and materially affected its value, and he was not conveyed to appellee and his mother, M. A. tendered a title to such real property that Adams; and that, after the death of his he was bound to accept.

mother, appellee's father, H. D. Adams, sold The order of the Appellate Division should and conveyed said lands by warranty deed be reversed, and that of the Special Term to the appellant. affirmed, with costs in both courts.

The fifth paragraph of the bill alleges :

“That on the 7th day of August, 1908, reWillard Bartlett, Ch. J., and Werner, spondent came to this complainant at or Hiscock, Hogan, Miller, and Cardozo, near Harpersville, in Shelby county, AlaJJ., concur.

bama, 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 ALABAMA SUPREME COURT.

said respondent, covering his interest in the

lands right then, he (the respondent) would A. G. EMBREY, Appt.,

put complainant's father in the chain gang.

Upon complainant's refusal to execute the H. W. ADAMS.

said deed to respondent, he (the said re

spondent) turned his horses towards Colum(- Ala. 68 So. 20.)

biana, stating at the time that he had seen

lawyers at Columbiana and would drive Duress threat to prosecute parents.

down and have the papers issued; that, actA deed secured for a grossly inadequate ing under extreme distress and what he consideration, by threats to send the grantor's father to the chain gang for an alleged thought the necessity of the case required, otsense, will be set aside for duress.

he (this complainant) did execute a deed

to said respondent covering said lands, and (February 11, 1915.)

which was the only property he owned; that Note. Contracts procured by threats | As opposed to public policy, as compounding of prosecution of a relative.

a felony.


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For the earlier cases on this question, Supplementing notes in 26 L.R.A. 49, and see the notes to City Nat. Bank v. Kusworm, 20 L.R.A. (N.S.) 484. 26 L.R.A. 48; Williamson-Halsell Frazier As shown in the above notes, contracts (o. 1. Ackerman, 20 L.R.A. (S.S.) 484; procured by threats of prosecution of a and Ball v. Ball, 37 L.R.A. (N.S.) 539. 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 of $25, which was totally and wholly in cloud on complainant's title, upon the payadequate as payment for complainant's I ment of the sum of $25, and interest there. interest 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 I 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- i the judge of the county court of Shelby, cution and possible conviction of his father.” exercising jurisdiction in equity, the de

By 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' The solicitors for the appellant, in the times, to repay the same is also thereby brief filed in this court, thus state the issue: averred.

“The sum and substance of the bill is that The prayer of the bill is that the deed of H. D. Adams, the father of the complainlegality of consideration in numerous cases : to execute the note and mortgage by way where it is clearly established that there ! of compounding a felony, there having beeu was an agreement not to prosecute.

no promise not to prosecute the son-in-law. Thus, where a father, while his son was And where the consideration for the givunder arrest on a charge of cheating and ing of a bond by the father of the defendant swindling in the purchase of a mule, was in a bastardy proceeding was not the abandinduced by the seller to sign, as a joint onment of the charge of a statutory offense maker with a son, a promissory note for with a girl under the age of consent, but the purchase price of the mule, the induce- was a relinquishment of a claim for the ment being an agreement by the seller that maintenance of the child, if any, to be if the father would sign the note he would born of the illicit relations, the bond was withdraw the warrant against the son and valid and enforceable. Meredith v. Knox, stop the prosecution, the acts constituted - Del, Ch. —, 83 Atl. 703. a defense, in favor of the father, to a suit So, in Godding v. Hall, 56 Colo. 579, upon the note. Cromer v. Evett, 11 Ga. 140 Pac. 165, it appeared that the defendApp. 654, 75 S. E. 1056.

ant's husband was an officer of a bank So, where the maker of a note forged which had become insolvent through his the indorsements of his father-in-law and defalcations, and that she gave her trust brother-in-law, and upon discovering the deed upon property which had been bought forgery the payee procured a guaranty of with the misappropriated funds and given the indorsement from the father-in-law, to her by the husband, the deed containing and brother-in-law, upon the understanding a recital as follows: And whereas the time that the maker would not be prosecuted for and attention of the late officers of said the forgery if such a guaranty was given, bank is required to assist in the realization they were not estopped from denying the of such assets, and it being the wish and validity of their signatures, there being a desire of the undersigned that such officers statute in force making an agreement not shall not be hampered or delayed by to prosecute for a felony a crime. Catskill trivial or other persecutions or prosecutions, Nat. Bank v. Lasher, TM165 App. Div. 548, and therefore the conveyance hereinafter 151 X. Y. Supp. 191.

made is upon the condition that their time What is paid by a father to prevent the and attention be left for such assistance," it arrest of his son upon a warrant issued was held that the deed was valid and enagainst him for obtaining money under false forceable, inasmuch as neither by oral pretenses, which charges were absolutely agreement nor by the language of the false, may be recovered. Sykes v. Thomp- instrument itself did it appear that son, 160 N. C, 348, 76 S. E. 252. The court there was an agreement that plaintiff's pointed out the illegality of the contract husband should be prosecuted for and said that a recovery may be sustained the defalcation, and further, even if the by the more innocent party notwithstand court were to give the deed the construcing the illegal features of the agreement, tion contended for by appellant, still the especially when the party seeking relief has conveyance would be in full force and effect been induced to enter into the agreement for the reason that the condition relied on by fraud or undue influence.

was not a condition precedent, but subseBut in Higgins v. Sowards, 159 Kv. 783, quent, and where a condition is illegal, in169 S. W. 554, a mortgage given to secure a definite, uncertain, unreasonable, or repug. note of the mortgagor's son-in-law. covering nant to the nature of the instrument to the amount of the son-in-law's shortage which it was annexed, such condition is in his accounts, was sustained where it was void and renders the grantee's estate abevident that the mortgagor was not induced 'solute.



ant, sold to and made this respondent a, the averment of the bill for relief in a court deed to 80 acres of land in Shelby county, of equity. for which the respondent paid the said H. In Kirby v. Arnold, Ala. —, 68 So. 17, D. Adams, thinking thereby that he was we have collected the general authorities on acquiring a complete title to the lands in the subject of duress and undue influence, volved in this suit.” That, when appellant the consensus of which we believe is de. found out that appellee's "father had prac

cisive of this appeal.

The doctrine is declared in Martin v. tised a fraud, he (Embrey) threatened to prosecute and convict H. D. Adams, com- Evans, 163 Ala. 657, 50 So. 997, that, where plainant's father, for obtaining his money the grantee that a son of the grantor has

one conveys lands on the representation by under false pretense, and the complainant, embezzled funds from the grantee, coupled W. H. Adams, to keep his father from being with the threat that the sou will be proseprosecuted and convicted, agreed to and did cuted for the embezzlement unless the conmake respondent Embrey a deed to the land, veyance is executed, the grantor is entitled Embrey paying him the additional consid to have it set aside as having been obtained eration of $25, etc.”

under duress and undue influence, and with. The demurrer questions the sufficiency of out consideration. Voidable on the ground of duress. ously disposing of mortgaged chattels.

Hoellworth v. McCarthy, 93 Neb. 246, 43 Supplementing notes in 26 L.R.A. 48; 20 L.R.A. (N.S.) 1005, 140 N. W. 141. L.R.A. (N.S.) 4w; and 37 L.R.A. (N.S.) A note executed by a woman to save 539.

her brother from threatened imprisonment As shown in the above notes, contracts on the charge of embezzlement is void procured by threats of prosecution of a for duress. Kronmeyer v. Buck, 258 Ill. l'elative have been declared voidable upon 580, 45 L.R.A. (N.S.) 1182, 101 X. E. the ground of duress in numerous cases; 935. there being a well-established exception to In Kirby v. Arnold, Ala. —, 68 So. 17, the generai rule that the law does not re- a deed procured by a man of affairs from gard a person as under duress who enters an ignorant negro woman for a grossly ininto a contract to relieve another person, adequate consideration, upon threat of prosand not himself, where the subject of the ecution of her aged grandfather, was duress is the wife, husband, parent, child, nulled. or other near relative.

And in EMBREY V. Adams, above reported, To avoid a promissory note given to pre- it was held that a deed secured for grossvent a threatened imprisonment of the ly inadequate consideration, by threats to makers' son, it is not necessary that the have the grantor's father arrested im. means used to procure the note were such mediately and sent to prison for an alleged as to overcome the mind of an ordinary fraud in the sale of lands, will be set aside man, but that they were sufficient to over- for duress. come the minds of the makers in the con- The right to avoid a contract because of dition in which they were in at the time; so, duress consisting of a threat to imprison where it appeared that the makers of such a near relative may be extended to a motha note were aged and feeble, and not per-er-in-law who signs a contract to prevent sons of ordinary courage and firmness, they the prosecution of her daughter's husband, could repudiate such a contract on the if it appears that the son-in-law and his ground of duress, even though the threats wife are living in harmony and there is would not influence persons differently con- nothing to show any estrangement between stituted. Anthony & C. Co. v. Brown, 214 the mother-in-law and the son-in-law. Mass. 439, 101 N. E. 1056.

Fountain v. Bigham, 235 Pa. 35, 84 Atl. Where the feelings or affections of a wife 131, Ann. Cas. 1913D, 1188. are worked upon through criminal proceed- But a married woman cannot avoid a conings instituted against her husband, and she tract and deed of trust executed by her beis induced thereby against her will to con- cause of dread of prosecution of her hus. vey her property through the medium of her band for embezzlement, where it does not husband to his creditors, to pay his debts appear that any threat of prosecution of her and obtain his release from imprisonment, husband was ever made to her by anyone there is duress as to her, and a purchaser representing the plaintiff, nor that any repfrom the husband's creditor with notice of resentative of the plaintiff induced her to the wife's equity cannot prevail in an ac- execute the contract and deed of trust by tion to recover the land from her. Jordan any threat of such prosecution. Goodrum v. Beecher, post, 1122.

v. Merchants' & P. Bank, 102 Ark. 326, 144 A married

who involuntarily S. W. 198, Ann. Cas. 1914A, 511. mortgages her separate estate or homestead And a mortgage executed by a wife upon to secure an individual indebtedness of her her separate property, to indemnify a husband may have the lien canceled in a surety upon the official bond of her hussuit to forclose the mortgage, where she band, and who had misappropriated the was induced to execute it by the mortgagee's funds coming into his hands by virtue of threats to imprison her husband for feloni.. his oflice, in the hope that, or upon assurThe 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 Mr. Justice Morton, in Harris v. Carmody, wife."

131 Mass. 51-54, 41 Am. Rep. 188, says: But it has long been the habit of courts “In a note to Bayly v. Clare, 2 Bownl. & G. of equity to relieve parties from contracts 275, 276, in the common bench, Michaelmas made under the influence of threats, or of' 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 A contract obtained by duress may be in person nor through an attorney or agent ratified; so, where a married woman joined resorted to any undue means by way of in the execution of a deed in the nature of threats or deception to obtain the execution a mortgage, to secure payment of the value of such mortgage. Bode v. Jussen, 93 Neb. of property which her husband has misap482, 140 N. W. 768; Jussen v. Bode, 93 Neb. propriated, and later gave a quitclaim deed 490, 140 N. W. 771.

of her interest in the property, and delayed And in Maddox v. Rowe, 154 Ky. 417, a suit disaffirming the conveyance for near157 S. W. 714, where a wife executed a ly three years, during which time the person mortgage to a bank of which her husband to whom the property had been conveyed was an officer, to secure indebtedness which died, and there was no haste exhibited at he had incurred to the bank in violation of the time of the execution of the quitclaim law, and it appeared that she understood deed, threats made or communicated the matter perfectly and was in her usual to her at that time, it was held that she frame of mind at the time she executed the had ratified the deed. Guinn v. Sumpter mortgage, it was held that no such duress Valley R. Co. 63 Or. 368, 127 Pac. 987. was shown as would avoid the mortgage. A father who was induced by the payee

And in Sulzner v. Cappeau-Lemley & M. to sign a note in order to save his son from Co. 234 Pa. 162, 39 L.R.A.(N.S.) 421, 83 arrest and stop a prosecution for cheating Atl. 103, it was held that a transfer of and swindling in the purchase of a mule stock cannot be set aside for duress, because is not precluded from setting up duress as of a threat to imprison the son of the trans- a defense to an action on the note, without ferrer, who had made the contract for the showing that the arrest was illegal by virtue transfer, if no steps towards the arrest had of the statute providing that “legal imprisbeen taken, where it appeared that the onment, if not used for illegal purposes, is transferrer was an experienced business not duress," since the arrest was used for man of ordinary firmness, and that both an illegal purpose in coercing the father he and his son were at liberty to come and to sign the note. Cromer v. Evett, 11 Ga. go as they chose, and had ample time to App. 654, 75 S. E. 1056. consult an attorney had they so desired. Where a husband and wife conveyed their The court said: "Ordinarily, when no pro- homestead, and the husband transferred perceedings have been commenced, threats of sonal property to cover a shortage in his arrest, prosecution, or imprisonment do not accounts with the corporation by which he constitute legal duress to avoid a contract. was employed, and it appeared that all of The threats must be made under such cir- the proved shortage would have been covered cumstances that they excite the fear of im- by the personal property transferred, it was minent and immediate imprisonment.” held, although there was no actual threat

The threat of a lawful arrest for a crime of prosecution, that under the circumstances which has actually been committed is not the wife's participation in the conveyance itself a sufficient ground for the cancela of the homestead was without legal considtion of a mortgage which has been executederation, and, as to her, a decree of the trial as a result of such threat, to cover the loss court canceling the conveyance of the homeoccasioned by the commission of such crime; stead was aflirmed.

Clement v. Buckley so, where a son had mortgaged his mother's Mercantile Co. 172 Mich. 243, 137 N. W. horses for his own debt and in his own 656.

R. L. S. name, an offense for which he could legally

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