icated upon a threatened arrest and prosecution for an offense of which the party was in fact guilty, saying: "We are not inclined to encourage a resort to such pressure as was used in this instance to compel the settlement of private demands." * * * In a very early case the Supreme Court of New Hampshire, in considering what amounted to duress, said: "Where there is an arrest for improper purposes, without just cause, or an arrest for a just cause, but without lawful authority, or an arrest for a just cause, and under lawful authority, for an improper purpose, and the person arrested pays money for his enlargement, he may be considered as having paid. the money by duress of imprisonment, and may recover it back in an action for money had and received." Richardson v. Duncan, 3 N. H. 508. The Supreme Court of Alabama in a recent case ruled that threats of unlawful imprisonment were not necessary to constitute duress, and that, if there was a liability for arrest and imprisonment, and such liability was used to overcome the will and compel the making of a contract, which would otherwise not have been made, it would amount to duress. * * * * * The important consideration in cases like this one is not whether there was ground for the arrest or imprisonment threatened, but it is rather whether the free will of the party making the contract was constrained by the threats of the other. There is no lack of testimony to show threats of the arrest and prosecution of John, nor that the notes and mortgage were procured through the fear excited by the threats. Joseph J. Ackerman was subject to duress because of the threats directed against a member of his family as much as if they had been directed against himself. * * * Finding no error in the record, the judgment will be affirmed. FOUNTAIN v. BIGHAM. (Supreme Court of Pennsylvania, 1912. 235 Pa. 35, 84 Atl. 131, Action of assumpsit on a bond by Fountain against Mrs. Bigham. From a judgment for plaintiff, defendant appeals. Dunn, son-in-law of Mrs. Bigham, defendant, forged the indorsement of Fountain, plaintiff, on a check, indorsed his own name, and deposited the check and received credit for the amount in his bank account. Dunn was arrested on two informations by Fountain, charging him with obtaining money under false pretenses. Mrs. Bigham, after the arrest of Dunn, signed as surety a bond with warrant of attorney to confess judgment, conditioned for the payment of $2,500 in one day after date. Dunn was later acquitted. Judgment was entered on the bond next day. After two installments of interest had been paid on the judgment and default as to the third installment, execution was issued. Mrs. Bigham presented her petition to the court below and obtained a rule to stay the writ and opened up the judgment. Among the defenses set up was the defense that the bond was executed under the influence of threats and coercion. MESTREZAT, J. *** That a contract obtained by duress or acts of coercion or intimidation may be invalidated is well settled. But, where one has a just claim against another for money obtained by the commission of a crime, it is not unlawful for the creditor to threaten to prosecute if the claim is not paid; and a contract cannot be avoided which the debtor enters into to secure payment of the claim, unless the creditor attempts by such threat to accomplish an unlawful purpose. In other words, a threat of lawful imprisonment is not duress, unless it is made for an unlawful purpose, such, for instance, as compelling the satisfaction of a debt by payment in money, or by the execution of an obligation to secure it. If, in connection with the threat, it appears that the creditor declared he would prosecute if the claim was not paid, with other evidence showing that his intention was to use the criminal process to collect the debt, or to accomplish any unlawful purpose, a jury might well find that such was the purpose of the creditor in making the threat; and that therefore it was duress. * * * It is, therefore, immaterial whether Fountain, when he made the alleged threat, knew or did not know that he had a criminal case against Dunn, as he could not lawfully compel the execution of the bond by threats to prosecute, made for such a purpose. In this case, however, Dunn is not contesting the validity of the bond; but the present appeal was taken by Mrs. Bigham, his mother-in-law, the surety on the bond. Can she avoid the obligation on the ground of duress exercised on Dunn? The general rule undoubtedly is that the defense of duress is open only to the party upon whom it is imposed, and that a third party, who has become surety for the payment of the claim, cannot avail himself of the plea, unless he signed the obligation without knowledge of the duress. er. * * * * * There are certain exceptions to the rule as well established as the rule itself. These exceptions include husband and wife and parent and child, and either may avoid his contract made to relieve the other from duress. The exceptions have been extended to grandmother and * aunt and nephew, * grandson, * sister and brother, * * * father-in-law and son-in-law, * * * and brother and broth* The reason for avoiding a contract on the ground of duress, as appears above, is that the condition of mind of the party upon whom the duress is imposed is such as to deprive him of the exercise of his free will. Whatever influence produces such a condition of mind will invalidate a contract executed while the influence prevails. The relations between parent and child and husband and wife are so close and tender that the law recognizes that threats to imprison one will have substantially the same effect on the mind of the other; and what will deprive the one of the free exercise of his will or judgment will have a like effect on the other. The reason of the rule will extend it to the case of a mother-in-law and son-in-law, where the latter is living amicably with his wife, and the two families are on the usual terms of intimacy and friendship. * * * We think the learned court below should have submitted to the jury, with proper instructions, whether, owing to the relationship of the parties and the circumstances disclosed by the testimony, the bond was Mrs. Bigham's voluntary act, or was executed under threats of prosecution of her son-in-law, which deprived her of the exercise of her free will. * ΠΟΥΟ. *The judgment is reversed, with a venire de SECTION 5.-UNDUE INFLUENCE DU BOSE v. KELL. (Supreme Court of South Carolina, 1911. 90 S. C. 196, 71 S. E. 371.) Action to set aside a deed. MOORE, Special Judge (trial court). The principles of law applicable to the question of undue influence are well settled, and may be thus stated in general terms: Where a deed is procured by undue influence exerted upon the grantor, it will be set aside by a court of equity upon a proper and timely application on the part of the person injured or aggrieved thereby; but, in order to avoid the deed upon this ground, there must be shown such an influence exerted upon the grantor as to overbear her will and to make the act of execution not the carrying out of a real purpose or intention of the grantor, but the mere mechanical performance by her of the wish and design of some other person. Neither fair argument, nor mere suggestion, nor even persuasion, unaccompanied by other circumstances to show at substitution of the will or purpose of some other person for that of the grantor, will amount to undue influence. In order to make it undue, it must appear that the influence exerted was such as to overcome or destroy the free will of the grantor and to make the deed as executed the expression not of his purpose, but that of some other person. * Put "the line between due and undue influence, when drawn, must be with full recognition of the liberty due every true owner to obey the voice of justice, the dictates of friendship, of gratitude and of benevolence, as well as the claims of kindred, and when not hindered by personal incapacity, or particular regulations, to dispose of his own property according to his own free choice." Wallace v. Harris, 32 Mich. 380. * It is further an established principle of equity, well founded in right reason, that the acts and contracts of persons who are of weak understanding and who are thereby liable to imposition, and also all contracts or gifts between persons standing in confidential relations towards each other, will be closely scrutinized by the courts to discover whether or not any undue influence was exerted, or any confidence was betrayed to the prejudice of the weaker party or of the one reposing such trust and confidence. * * * Undue influence may be said to consist in any influence which is so far operative as to destroy free agency, so as to compel the person doing the act in question to do the same against his will. It is not material how such control was exerted, whether by physical force, threats, importunities, or any other species of mental or physical coercion, provided only it was so exerted as to destroy free agency and to make the act done not a true expression of the will of the person doing it, but in truth a carrying out of the purposes of some other person against that will. But the undue influence is to be proved and not to be presumed, unless the relation in which the parties stood with reference to each other is such as to raise a presumption of its existence. Yet, even where such a presumption arises, it is rebutted by evidence showing that everything between the parties was fair, open, voluntary, and well understood. * * * Applying the principles stated to the evidence in the case at bar, we find that the grantor in the deed here under consideration was a feeble old lady, past her four-score years of life, her mind and memory to some extent weakened and impaired by the troubles and afflictions of her previous life, and by the burdens of the years resting upon her, entertaining at times delusive momentary beliefs as to the continuing existence in her life of her long-dead parents and temporary beliefs at variance with facts as to then existing weather conditions and as to locality of places. It appears that she had none then standing towards her in the relation of her kindred or dear friends, excepting only the grantee in this deed, who was not her blood, but had long been holding the place of a devoted son, having laid aside a promising career in life in order to bestow upon her the skilled attention which his knowledge as a physician enabled him to give. It is shown by the evidence that the grantor was weak in body and doubtless to some extent enfeebled in her general mental powers, but that at the very moment of the execution of the deed she was not laboring under any delusion of mind, and was in fact engaged in the carrying out of a long-cherished purpose to dispose of her property as to insure its devolution upon her grantee. It is true that at or about the time of the signing of the paper in question she expressed sentiments of confidence in the belief that the grantee would continue to care for her during the remainder of her life, and it cannot be doubted that she executed the deed in the faith that he would not permit her to suffer by reason of her act. If he had failed to give her support, aid, and maintenance, the circumstances and relations of the parties were such as would well have warranted a court of equity in imposing upon the grantee the duty of providing for her support and comfort during the remainder of her life, at her instance and upon her application. But it does not appear that there was any abuse of that trust and confidence nor is there any evidence of a failure by him to discharge any duty in that particular. The testimony of the subscribing witnesses and of those present at the time of the signing by the donor is unanimous to the effect that she was then compos mentis; that she appreciated and understood the force and effect of her act; that she was not hoodwinked or deceived as to the nature of the instrument; and that she acted entirely of her own volition, although upon the suggestion of the grantee in the execution of the instrument. The voluminous mass of the evidence in this case has been searched in vain to discover any testimony of undue influence exerted by the grantee or by any other person, either before or at the time of the execution of this deed, in order to induce the making thereof. There is not the slightest evidence of even argument or persuasion employed to that end, and the testimony tends to show, and in my opinion does establish, the fact that the grantor therein had long entertained a fixed purpose to bestow the lands in question upon the grantee as ultimate owner. If it be the fact, as I think it is, that the relation of the parties to this transaction and the mental weakness and dependence of the grantor upon the grantee were such as to impose upon those claiming under the latter the burden of showing that no fraud was practiced nor undue influence exerted by or on behalf of the beneficiary under this gift, that there was no suppressio veri nor suggestio falsi operating as an inducement thereto, it is my opinion, after a careful examination of the entire record, that this has been affirmatively shown, and that it appears from the evidence that the conveyance was the voluntary act and deed of Susan C. Kell, was willingly executed by her in pursuance of a long-cherished intention, was not induced by any suppression or misrepresentation of facts, and that there was no fraud upon the part of the grantee thereof nor abuse of the confidential relations existing between the said grantor and grantee. The evidence shows that the act of signing was performed not only understandingly and without reluctance, but also with a desire and purpose on the part of the donor to dispose of her property to the donee named in the deed and for his own ultimate benefit. When the effect of her act was mentioned to her subsequently to such execution of the deed, she expressed satisfaction with her act in so disposing of her property and a continued understanding of the purpose and effect of what she had done. She lived for nearly two months thereafter, and so far as the evidence discloses, although the fact of her having so disposed of practically her entire property was mentioned in her presence and in the absence of the donee, she never at any time, so far as appears, gave expression to any other feeling than that of satisfaction with the deed as effectuating her voluntary purpose and intention. If the transaction had been regarded at the time by the grantor as a business transaction, whereby she was conveying the property to the grantee in consideration of past services alone, or if there were evidence going to show that she viewed it in the light of a commercial transaction, then the question sought to be made as to the adequacy of the consideration mentioned in the deed would be a matter of serious importance. But as it was evidently understood by her as being a deed of gift, with but slight, if any, reference to pecuniary obligations existing between the parties, the transaction is to be considered as purely a matter of gift, and not of bargain and sale. So considering it, I am of the opinion that the validity of this deed must be sustained, and it is accordingly so adjudged. * * * * * * GARY, J. We are satisfied with the circuit judge's findings of fact, and the reasons assigned by him for his conclusions of law. Affirmed. |