were not rendered the less forceful and overpowering by the presence of McNaughton. Mrs. Staehle testifies that the only reason she excuted the note was to save her brother from the impending prosecution. While no promise of immunity was expressly made, yet it is perfectly clear that both she and Kronmeyer were influenced by the understanding, which was clearly to be implied, that if the matter was adjusted satisfactorily Kronmeyer would not have to go to jail or be prosecuted. Miller v. Miner Lumber Co. 98 Mich. 160; 57 N. E. Rep. 101.

The execution of the note and deed by Kronmeyer stands upon a different footing. Duress is not available as a defense against a note or other instrument executed by one who is, in fact, guilty of misappropriating the money of another, although the execution of the instrument is obtained by threatened prosecution, if the instrument is executed in payment of a debt honestly due. In such case the law regards the existence of a debt, and not the threatened prosecution, as the consideration. The authorities support the proposition that where a deed or mortgage is executed to secure an amount of money actually due as the result of transactions having a criminal aspect, equity will not set aside such conveyances even though their execution was procured by threats of criminal prosecution. (Briggs v. Withey, 24 Mich. 136; Rood v. Winslow, Walk. Ch. 342; Betts v. Village of Reading, 93 Mich. 79; 52 N. W. Rep. 940; Beath v. Chapoton, 115 id. 506; 73 id. 806. In Bodine v. Morgan, 37 N. J. Eq. 426, a father and son were charged with fraudulently taking and appropriating business orders. The father settled and gave a mortgage of $5000. The court said: "But further, the threat to arrest him for the unlawful appropriation of their goods and orders to his use unless he should indemnify them, constituted, if it was made, no duress, and if the mortgage had been given under the pressure of such a threat it would

not have affected its validity." But in all these cases where conveyances have been upheld which were executed by a defaulter or embezzler in settlement of his shortage there was no question about the existence of the debt to pay or secure which the conveyance was executed. The case at bar does not fall within the rule of the foregoing authorities, for the reason, as we have already sought to show, the evidence of the existence of the debt is extremely doubtful, and there is no evidence that tends to prove the existence of a debt of more than $17. The evidence in this record shows that McNaughton accused Kronmeyer of embezzlement. Kronmeyer denied the charge. McNaughton told him that he did not expect him to confess his guilt but that he had the proof of his guilt, and exhibited to him certain memoranda, giving dates and amounts, by which he said he was able to prove he had stolen. If Kronmeyer was, in fact, innocent, and, when confronted with a charge of this kind by a lawyer whom he had always regarded as a friend, executed the instruments in question to avoid a prosecution for a crime which he had not committed, then there was both fraud and duress and a total failure of consideration. Upon this hypothesis of fact the case would fall under the rule of Knotts v. Preble, 50 Ill. 226. In that case Preble had an insurance on a stock of goods in a store room in Lexington which was totally destroyed by fire. The fire was communicated from the Preble building to one occupied by Knotts & Steers, which was consumed, with a loss of several thousand dollars to Knotts & Steers. After the fire Knotts persuaded Preble that he was under obligations to bear a part of their loss; stated that the fire originated from a defective flue in the defendant's building, and said that "he could prove things about the fire that Preble little thought of." Under the belief that the plaintiffs had some sort of claim on him, and under the influence of representations made by Knotts, Preble executed a note payable to Knotts & Steers. This court, in sustaining a judgment

for the defendant on the ground that there was no consideration, on page 227 said: "It is no doubt true that a promise made to settle a doubtful right or to get rid of a probable liability is binding and made upon a good and valuable consideration, and it is no defense for the promisor to say he was mistaken in regard to his liability. But this is not such a case. The note was obtained solely by force of these false representations made by Knotts that he could prove Preble was the cause of the fire. Knotts failed to prove any such thing. The facts in connection with the case were fairly left to the jury, and they have said there was no ground whatever on which to base the plaintiffs' claim. This destroys the idea of good faith on plaintiffs' part in making the claim."

We are not unmindful of the rule of law announced in the line of cases of which McKinley v. Watkins, 13 Ill. 140, Honeyman v. Jarvis, 79 id. 318, and Pool v. Docker, 92 id. 501, are illustrations, to the effect that a compromise of a doubtful right is a sufficient consideration to support a promise even though it may afterwards turn out that the right is on the other side, where there is neither actual nor constructive fraud, and the parties, acting in good faith for the purpose of settling a matter in dispute, come to a final agreement. The case at bar does not fall within that rule. In order to bring the case within the rule of these and other like cases it is indispensable that the controversy should be honestly inaugurated and that perfect fairness and good faith should characterize the conduct of the party seeking to uphold the compromise agreement. It requires only a brief reference to the evidence in this case to show that it cannot be upheld as a compromise of a matter honestly in dispute between two parties.

But it is said by the defendant in error that the deed, being an executed conveyance of real estate, cannot be annulled or set aside by evidence that there has been a fail

ure of consideration, and Redmond v. Cass, 226 Ill. 120, Poe v. Ulrey, 233 id. 56, and other cases are relied on in support of this proposition. We recognize the full force of the well established rule that a failure of consideration for an executed conveyance of real estate gives the grantor no right, at law, to avoid his conveyance. (Page on Contracts, sec. 1479, and cases there cited.) But this is an equitable proceeding, in which specific justice between the parties before the court is of greater importance than the mere mechanical enforcement of a general rule of law. Courts of equity, in order to relieve against a great hardship where one has been induced to convey real estate for little or no consideration, will seize upon circumstances of oppression, fraud or duress for the purpose of administering justice in the case in hand. Kusch v. Kusch, 143 Ill. 353, Dorsey v. Wolcott, 173 id. 539, and McClelland v. McClelland, 176 id. 83, are illustrations of different aspects of the rule above stated. Assuming that Kronmeyer did not owe Buck anything, or only the nominal sum that the evidence in this record tends to prove, it would be a reproach to the law to say that Buck could take title to $5000 worth of property and hold it because his title was evidenced by a deed under seal, which cannot be impeached by showing a failure of consideration. The facts already adverted to are sufficient to give a court of equity jurisdiction to rescind this transaction. If Kronmeyer embezzled any money belonging to Buck he ought to re-pay it, but in the absence of convincing evidence that he owes any sum whatever, and with only proof enough to raise a bare probability that he may owe a trifling amount, a court of equity will not permit Buck to take the law in his own hands and penalize Kronmeyer by taking and retaining title to this property. The deed should be set aside. If Buck has received any rents or net profits from the real estate he should be required to account for the same. If the encumbrance

on the property has been discharged by Buck, Kronmeyer will receive the property clear, and in such case will not be entitled to a decree for any amount that Buck may have paid on said encumbrance. If the encumbrance is still unpaid Buck should be required to account for $1477, and interest thereon at the rate of five per cent from the day he received it.

The decree of the circuit court of Will county is reversed and the cause remanded to that court, with directions to enter a decree for plaintiffs in error in accordance with the views herein expressed.

Reversed and remanded, with directions.

THE MERIDIAN LINE DRAINAGE DISTRICT, Appellee, vs. JOHN WISS et al. Appellants.

Opinion filed April 19, 1913-Rehearing denied June 5, 1913.

I. DRAINAGE—the amendment of 1909, authorizing assessment "to pay obligations incurred for current expenses," construed. The amendment of section 37 of the Levee act in 1909, authorizing an assessment "to pay obligations incurred for current expenses," etc., authorizes the commissioners, when all of the funds raised have been honestly applied to the construction of the work, to levy an assessment to pay the just claims of the commissioners for their services, court costs, witness fees, unpaid balance of attorney's fees, and the like.

2. SAME-a debt incurred by drainage district for current expenses is within the amendment of 1909. The amendment of section 37 of the Levee act, in 1909, authorizes an assessment not only for "current expenses," which would include any continuing, regular expenses in connection with the work, but also to pay "obligations" incurred for current expenses, and hence includes within its meaning a debt incurred by the district for current expenses. FARMER, J., dissenting.

APPEAL from the County Court of Fayette county; the Hon. JOHN H. WEBB, Judge, presiding.