his property is in danger. We can not appreciate the difference. Liberty and life are justly dear to all men, and so is the exclusive right to possess, dispose of, and protect from destruction, our property. We can not forget the fact that the desire for property is a strong and predominant characteristic of man, in organized society. An act done, prompted by this desire to preserve, and impelled by fear of the destruction of goods, is not voluntary. It is an act of compulsion. In Fashay v. Ferguson, 5 Hill, 158, Bronson, J. said: 'I entertain no doubt that a contract procured by threats, or the destruction of property, may be avoided on the ground of duress. It wants the voluntary assent of the party to be bound by it. Why should the wrong-doer derive advantage from his tortious act?'"'

Question 77: Is a promise made under 'duress of property' voidable? Why?

Case 78. Kronmeyer v. Buck, 258 Ill. 586.

Facts: Buck was engaged in the sale of building material. Kronmeyer was in his employ, and was authorized to receive cash. He was accused of embezzling $10,000 of this money, and threatened with jail unless the matter was adjusted. Kronmeyer executed a deed to Buck. There was a $1,500 mortgage on the property. He was told he would have to clear this up. He thereupon went to his sister Mrs. Staehle and told her that he would have to go to jail if she would not sign a $1,500 note for him, whereupon she did so. The note was then discounted by Buck at the bank. Kronmeyer and his sister bring this suit to set aside the deed and to obtain the amount of the note. He denies that he was guilty of embezzlement, claims he was in a highly nervous state of mind owing to the recent death of his wife, and made the settlement in fear of imprisonment, and under the influence of hard threats. (Other facts appear in the opinion.)

Point Involved: Is a contract procured under threat of criminal prosecution binding?

66* * *

MR. JUSTICE VICKERS delivered the opinion of the court: We have no hesitation whatever in holding that the execution of the note by Mrs. Staehle was procured by duress. She was an innocent third party. There can be no pretense that she was indebted to Buck in any amount. The first intimation that she had of any trouble was when her brother approached her in a highly excited manner and told her Buck claimed he had been stealing from him and that unless he got this note executed he would have to go to jail. She signed the note to keep her brother from going to jail and under the belief that if she did sign it he would be saved from imprisonment and prosecution. It is but natural that she would cling to her brother and seek to aid him in his trouble under the pressure of his importunities, which were not rendered the less forceful and overpowering by the presence of McNaughton [Buck's attorney]. Mrs. Staehle testifies that the only reason she executed 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 $5,000. 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.

*

"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, uo 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."

Question 78: For what purpose, by whom and against whom was this suit brought? State the facts under which the deed was given and the note signed. Was the note by the sister avoidable by her? Why? Should the court have set aside the deed of the alleged defaulter if he had really been in default? If not in default? Why? Where there is a compromise of a disputed Why was this not such a case?

claim is it binding?

Undue Influence.

§ 78. (Contracts, Sec. 46.) Undue influence defined— Its effect.

Case 79. Mors v. Peterson, 261 Ill. 532.

Facts: Sarah Mors and others, as heirs and devisees of Mrs. Elizabeth Spruill, deceased, file their bill against Clarissa Peterson to set aside a deed executed by Mrs. Spruill to Clarissa Peterson, August 23, 1911, conveying to her 190 acres of land estimated to be worth $50 per acre. The bill alleged that fraud, and undue influence was practiced on Mrs. Spruill, as well as her mental incapacity, as grounds for relief. Mrs. Spruill died April 23, 1912, aged 80 years. Her husband had been dead 20 years and she never had any children. During the

last 10 years of her life Mrs. Spruill lived at the home of the defendant, Clarissa Peterson, who was her niece, and paid her for keeping her. During the last years of her life she gradually declined and required constant attention which was rendered by Miss Peterson who also toward the last took charge of all of Mrs. Spruill's business generally. Just before the death of Mrs. Spruill, Miss Peterson called up an attorney and had him prepare a deed, which was then signed. Other facts appear in the opinion.

Point Involved:

The nature of undue influence. Under what circumstances it will be presumed; what evidence required to overcome the presumption when entertained?

MR. JUSTICE VICKERS: 66#

The evidence as to

the mental condition of Mrs. Spruill during the last few years of her life is conflicting. It cannot be said that the weight of the evidence shows that her mental powers were more impaired than would ordinarily be expected in one of her age and condition of health. The evidence on this point shows that she had the physical and mental weakness that is usually incident to old age. Her mental condition is proper to be considered as strengthening the inference of undue influence which the law draws from an established fiduciary relation. The constant and intimate association of appellant with this feeble and helpless old lady for the last ten years of her life gives rise to an irresistible conclusion that there was trust and confidence on the one hand and influence and domination on the other. While the bill sets out all the circumstances connected with the execution of the deed and alleges undue influence and mental incapacity and prays for a cancellation of the deed, it is not, strictly speaking, a bill, as appellant's counsel'appear to treat it, for the rescission of a contract on the ground of mental incapacity of the party to enter into it. The bill alleges a state of facts which are fully established by the proof, which show that a fiduciary relation existed between these par