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may avoid the deed that he hath sealed by the duress of imprisonment of his wife or son. . . . But a son shall avoid his deed by duress to his father. M. 7 Ja. B. per Coke. The husband shall avoid a deed by duress to his wife. M. 7 Ja. B. per Coke." 1 Rolle, Abr. 687, pls. 4-6.

Lord Bacon declared: "So, if a man menace me, that he will imprison or hurt in body my father or my child except I make unto him an obligation, I shall avoid this duress, as well as if the duress had been to mine own person." Bacon, Maxims, reg. 18.

The same law is explicitly laid down without question by the author of Bacon's Abridgment, and by Mr. Dane and by Mr. Justice McLean. Bacon, Abr. Duress, B. 5 Dane, Abr. 166, 375.

In McCormick Harvesting Mach. Co. v. Hamilton, 73 Wis. 486-495, 41 N. W. 727, 730, where many authorities are collected, the court declared: "The contract is then void by every principle of equity. It is the worst species of fraud, because it attacks the weakest point of human nature, and appeals to natural affection. What will not a mother do to save her child from imprisonment for crime of which he is not guilty?" The threat in this case was that, unless she executed a mortgage, the plaintiff would cause the imprisonment of her son for a crime of which the latter was not in fact guilty.

In Morse v. Woodworth, 155 Mass. 251, 29 N. E. 528, it is said by the court: "It has sometimes been held that threats of imprisonment, to constitute duress, must be of unlawful imprisonment. But the question is whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way, on the ground that the rights of the parties are to be determined by their language and their overt acts, without reference to the

influences which moved them. In such a case, there is no reason why one should be bound by a contract obtained by force,

which in reality is not his, but another's." Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 466, 20 So. 651.

In Glass v. Haygood, 133 Ala. 489, 31 So. 973, the rule of duress was declared to apply when the possession of one's goods is unlawfully held against him, and he has such an important, urgent, and immediate occasion for their possession and use as cannot be subserved by a resort to courts to recover them; he may avoid any contract he enters into with the wrongdoer in order to regain the possession of his goods.

We thus see that both ancient and modern authorities agree that the doctrine of duress or threat of punishment to husband or to wife, or to parent or to child, is based upon the nearness and tenderness of the relation, applying as strongly to the case of parent and child as to that of husband and wife. No more powerful or restraining force can be brought to bear upon a man, to overcome his will and extort from him an obligation, than the threat of great injury or punishment to wife or child or parent.

The County Court, exercising jurisdiction in equity, was correct in overruling the demurrer that the bill contained no equity, and the decree is affirmed.

Anderson, Ch. J., and Mayfield and Somerville, JJ., concur.

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are worked upon through criminal pro- | time he bought the land that the defendants ceedings instituted against her husband, and had any claim to it, and he bought in good she is induced thereby against her will to faith. The draftsman of the deeds from convey her property, through the medium of Mr. and Mrs. Beecher testified, in behalf her husband, to her husband's creditor, to of the plaintiff, that he explained to Mrs. pay her husband's debt and obtain his re- Beecher, at the time the deeds were drawn, lease from imprisonment, there is duress as to her, and a purchaser from the husband's that the only way she could transfer her creditor, with notice of the wife's equity, property to her husband was by making cannot prevail in an action to recover the him a deed of gift; that she could not be land from her. forced to make such a deed, and need not Trial do it unless she wanted to, to which Mrs.

· instructions.

3. The court's instruction is not open to Beecher replied that it was her desire to the criticism made of it

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Statement by Evans, P. J.:

make the deed and pay her husband's debt. He further told the defendants, at the time of making the deeds, that they did not settle the criminal prosecution against her husband, and that it could not be settled. Mrs. Beecher signed the deed willingly, stating that she was perfectly willing to deed this property to her husband, so he could pay his debts.

The substance of the testimony of the H. H. Jordan brought an action against defendants was as follows: In 1908 the E. C. Beecher and Drucilla Beecher to re-husband became indebted to the Hendersoncover possession of a tract of land. In the Powell Company for supplies, and on failabstract of title incorporated in the peti-ing to pay in the fall of the year, the tion it appeared that the plaintiff claimed manager of that corporation sued out a wartitle by virtue of a deed from Drucilla rant before a justice of the peace, who was Beecher to E. C. Beecher, dated December the president of the corporation. He was ar16, 1908, upon a voluntary consideration, rested and put in jail. His creditors agreed and a deed from E. C. Beecher to the Hen- to his release on condition that he would derson-Powell Company, dated December 17, procure his wife to make him a deed to the 1908, and a deed from Henderson-Powell land, and he in turn execute a deed to them. Company to the plaintiff, dated August 23, Beecher promised to do this and was allowed 1911. The defendants pleaded that they to go to his home, but in a few days he sustained the relation of husband and wife, was rearrested and put in jail. Henderson, that the deed from the wife to the husband the president of the Henderson-Powell Comand his deed to the Henderson-Powell Company, told him that if he would convey this pany were obtained by duress and were property to that company in settlement of without consideration, and were given for the purpose of settling a debt due by the husband to the Henderson-Powell Company, and in settlement of a criminal prosecution instituted by the Henderson-Powell Company against the husband. The evidence made the following case: The plaintiff testified that he bought the land from the Henderson-Powell Company in August, 1911, on a consideration of $500, which was evidenced by his two notes of $250 each, indorsed by his brother-in-law, and payable in December, 1912 and 1913; that he did not pay the first note when it fell due, nor has he paid either of them; that he is a farmer by occupation; that the manager of the Henderson-Powell Company approached him to sell him the land, and informed him that it was unoccupied. He had never seen the land, but inquired as to its value, and was told that it was worth from $1,000 to $1,200. In fact, the land was worth $1,500. He did not inspect the land, but agreed to purchase it, if the title was approved by his brother-in-law. He did not know at the

his debt, they would release him from jail and settle the criminal prosecution which they had instituted; but if he refused to do it, they intended to push the prosecution. and he would probably be found guilty and have to serve a term in the chain gang. He informed his wife that the only way to get out of his trouble and settle the prosecution was to give a deed to the HendersonPowell Company to her land. The wife met her husband in the office of the attorney of the Henderson-Powell Company, and there, in the presence of the president of the Henderson-Powell Company and the sheriff, who had the husband in custody, the wife made the husband a deed upon a purported consideration of love and affection, and the husband executed to his creditors, the Henderson-Powell Company, a deed upon a purported consideration of $275, and he was then released at the bidding of the creditor. The wife was unwilling to convey her land to her husband, and only did so to bring about his release from imprisonment. During the time between this trans

207; Small v. Williams, 87 Ga. 685, 13 S. E. 589; Cromer v. Evett, 11 Ga. App. 654, 75 S. E. 1056; Cook v. Hightower & Son, 11 Ga. App. 657, 75 S. W.`1058.

action and the bringing of the suit (more | v. Sullivan, 133 Ga. 160, 134 Am. St. Rep. than three years), neither the Henderson- 199, 65 S. E. 376; Kent v. Plumb, 57 Ga. Powell Company nor the plaintiff ever returned the property for taxation, but it was returned for taxation by Mrs. Beecher, and she paid the taxes on it. She and her husband have been in possession of the land since the execution of the deeds. The jury returned a verdict for the defendants.

Messrs. H. E. Oxford, Newbern & Meeks, and F. W. Dart, for plaintiff in

error:

Courts of justice will not lend their aid to enforce an immoral or illegal contract; if it be executed they will not disturb it, but leave the parties where they find them. Howell v. Fountain, 3 Ga. 176, 46 Am. Dec. 415; Adams v. Barrett, 5 Ga. 404; Parrott v. Baker, 82 Ga. 365, 9 S. E. 1068; Ellis v. Hammond, 57 Ga. 179; Garrison v. Burns, 98 Ga. 762, 26 S. E. 471; Beard v. White, 120 Ga. 1019, 48 S. E. 400.

Possession of the defendants was no notice to the plaintiff at the time of his purchase, in the face of the solemn, recorded deeds of the defendants, showing title out of themselves.

Malette v. Wright, 120 Ga. 735, 48 S. E. 229; Jay v. Whelchel, 78 Ga. 789, 3 S. E. 906.

Evans, P. J. delivered the opinion of the court:

The defendants set up two defenses. One was that the deeds from the wife to the husband and from the husband to his creditor were executed for the purpose of paying the husband's creditor with the wife's land, and that plaintiff acquired his deed from the husband's creditor with notice of the wife's equity. This issue was submitted to the jury by the court, under instructions to which no exception is taken. The defendants further defended on the ground that the deeds were procured by duress, and in settlement of a criminal prosecution against the husband. Upon that plea the court instructed the jury that, if they should find that the deeds from Mrs. Beecher to her husband and from him to the Henderson-Powell Company were executed in consideration that the Henderson-Powell Comthe criminal

pany were not to press prosecution against the husband, such deeds would be void, even as against a bona fide

Messrs. L. E. Heath and C. A. Ward, purchaser. In assigning error on this infor defendants in error:

A wife may avoid her contract on the ground of duress, when it was extorted by threat of the criminal prosecution of her husband.

City Nat. Bank v. Kusworm, 88 Wis. 188, 26 L.R.A. 48, 43 Am. St. Rep. 880, 59 N. W. 564; McCormick Harvesting Mach. Co. v. Hamilton, 73 Wis. 486, 41 N. W. 727.

Defendant was not in pari delicto within the meaning of the term, and she has a right to set up the fraud complained of in the evidence, and in the defendant's pleadings.

Jones v. Dannenberg Co. 112 Ga. 426, 52 L.R.A. 271, 37 S. E. 729; Taylor v. Allen, 112 Ga. 333, 37 S. E. 408; Exchange Nat. Bank v. Henderson, 139 Ga. 260, 51 L.R.A. (N.S.) 549, 77 S. E. 37.

The deed from Drucilla Beecher to her husband was not a bona fide deed of gift, but a colorable transaction, and the facts

attending the execution of the deed do not take the matter out of the operation of the statute prohibiting a wife from conveying land to her husband without the approval of the judge of the superior court.

struction, no exception is taken to the court's declaration on the effect of such conveyance upon subsequent bona fide purchasers without notice. The criticism is that an absolute deed of conveyance is an executed contract, and the grantor cannot impeach it as a muniment of title in the hands of the grantee or a purchaser from him, even though possession has not been yielded under it and it is not founded on a valuable consideration; that E. C. Beecher and Drucilla Beecher are estopped from taking advantage of their own wrong by contending that their deeds are void; that they do not come into court with clean hands, and are not entitled to a cancelation of their deeds. There can be no doubt that a contract to stifle a criminal prosecution is illegal and opposed to public policy, and, if the parties voluntarily enter into such contract, they are in pari delicto, and neither a court of law nor of equity will interpose to give relief to either party, but will leave the parties where they find them. Adams

v. Barrett, 5 Ga. 404. It has also been decided that a deed upon an illegal consideraNational Bank v. Carlton, 96 Ga. 469, 23 tion, being an executed contract, binds the S. E. 388; Central Bank & T. Corp. v. Al- parties where the illegality does not appear mand, 135 Ga. 231, 69 S. E. 111; Blackburn in the deed, and passes to the grantee a v. Lee, 137 Ga. 266, 73 S. E. 1; Deen v. title upon which he can recover the premises Williams, 128 Ga. 265, 57 S. E. 427; Bond' from the grantor in ejectment. Parrott v.

Baker, 82 Ga. 364, 371, 9 S. E. 1068; Beard v. White, 120 Ga. 1018, 48 S. E. 400.

The case presented by this record is not one for the enforcement of an executed contract, but for the cancelation of deeds executed under duress of imprisonment. Our Code declares:

"The free assent of the parties being essential to a valid contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will void the contract. Legal imprisonment, if not used for illegal purposes, is not duress." Civil Code 1910, § 4255.

"Duress," as defined by the Civil Code 1910, § 4116, "consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will."

against the husband. He was allowed to go home, on his promise to procure a deed from his wife, and return to make his creditor a deed. The creditor became impatient of his return and had him rearrested and put in jail. When he and his wife signed deeds conveying his wife's land to his creditor, he was in the custody of the sheriff, who then released him at the creditor's bidding.

Though a person is arrested under a legal warrant by a proper officer, yet, if one of the objects of the arrest is thereby to enforce the settlement of a civil claim, such arrest is a false imprisonment, and a release and conveyance of property obtained by means of such arrest is void. Hackett v. King, 6 Allen, 58; Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170; Brown v. Pierce, 7 Wall. 205, 215, 19 L. ed. 134, 137; Fillman v. Ryon, 168 Pa. 484, 32 Atl. 89; Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651; Osborn v. Robbins, 36 N. Y. 365.

As has already been adverted to, where parties enter into an agreement seeking to stifle a criminal prosecution, the parties are

In the instant case not only was the imprisonment of Beecher used to coerce a deed from his wife to himself and from him to his creditor, but that imprisonment, accord-in pari delicto, and the law refuses to aid ing to the uncontroverted testimony, was either of them against the other. That rule upon a warrant issued by his creditor, who applies where the nature of the undertakwas a magistrate. Its principal purpose ings and stipulation of each, if considered was to accomplish a payment of the hus- by themselves alone, would show the parties band's debt with the wife's land, the value equally in fault; but where the incidental of which was largely in excess of the debt. circumstances, such as imposition, oppresThis court has said that it was improper sion, duress, undue influence, taking advanfor a magistrate to give a warrant to the tage of necessities or weaknesses, and the prosecutor to execute, although the prose- like, are used as a means of inducing the cutor be a constable, and that it was doubt- party to enter into the agreement, the law ful whether such constable had the right to will not deem the party influenced by such deputize another person to assist him in the circumstances as being in pari delicto, so as execution of the warrant. Davis v. State, to deny him any relief from the contract 79 Ga. 767, 4 S. E. 318. Surely it is against infected with illegality. 2 Pom. Eq. Jur. public policy for a magistrate to issue a § 942. Where the fears or affections of a warrant for an alleged offense against him- wife are worked upon through criminal proself, and for the purpose of having the war- ceedings instituted against her husband, and rant used as a means of collecting a debt she is induced thereby against her will to -in which he is beneficially interested. convey her property to pay his debt and Richardson v. Welcome, 6 Cush. 331; Jordan obtain his release from prison, there is v. Henry, 22 Minn. 245. Says Mr. Justice duress as to her, even though the debt may Clifford, in Baker v. Morton, 12 Wall. 150, be valid, and the prosecution be for a crime 158, 20 L. ed. 262, 264: "Actual violence which has in fact been committed by the is not necessary to constitute duress even husband. Giddings v. Iowa Sav. Bank, 104 at common law, as understood in the parent Iowa, 676, 74 N. W. 21; Eadie v. Slimmon, country, because consent is the very essence 26 N. Y. 9, 82 Am. Dec. 395; Harper v. of a contract, and if there be compulsion Harper, 85 Ky. 160, 7 Am. St. Rep. 583, 3 there is no consent, and it is well-settled law that moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient to destroy free agency, without which there can be no contract, as in that state of the case there is no consent."

So far as the record discloses, there was no foundation for the charge preferred

S. W. 5; Adams v. Irving Nat. Bank, 116 N. Y. 606, 6 L.R.A. 491, 15 Am. St. Rep. 447, 23 N. E. 7; Southern Exp. Co. v. Duffey, 48 Ga. 358. In the last-named case a mother made a deed to procure the release of her son from arrest under a criminal warrant. The purported consideration of the deed was claimed to represent money embezzled by the son. It was in proof that the son was under arrest and in chains, and

and statutory provisions making the property of a married woman her separate estate, which she may transfer, and giving her the power to carry on business and sue and be sued.

(Wood and Hart, JJ., dissent.)

(December 21, 1914.)

the grantee in the deed agreed to release the, him does not extinguish the debts under son and stop the proceedings, though he constitutional expressly refused to settle the prosecution, stating that he could not control the public officials. The son was released and the prosecution stopped, and it was held that the deed from the mother was illegal and void. In the opinion McCay, J., said: "If the agreement to release a man under arrest and stop that proceeding is not an attempt to suppress a prosecution, we are at a loss to put a state of facts that does make a case within the rule. If this arrest was illegal, if the agents of the express company had this boy in their own custody, and could let him go or not at their pleasure, then this deed was the clear result of duress, since it was made to release the child of the grantor from illegal imprisonment. A man's child stands, under the law,

in the same situation as himself in such cases."

It follows that, if the deeds from Mrs. Beecher to her husband and from him to his creditor were obtained in the manner as

claimed by the defendants, they would be void as against the grantee, or a purchaser from him with notice.

The instruction to the jury is not criticized on the ground that such deeds would be treated as void instruments, so as to affect subsequent bona fide purchasers without notice. The evidence was without conflict that there was no change in the possession of the land as a result of the execution of the deeds to the HendersonPowell Company, and that the defendants were in possession of the land at the time the plaintiff bought from that company. As to the possession affecting the plaintiff with notice, see Civil Code 1910, §§ 4528, 4530; Austin v. Southern Home Bldg. & L. Asso. 122 Ga. 439, 50 S. E. 382; Kent v. Simpson, 142 Ga. 49, 82 S. E. 440. Judgment affirmed.

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Husband and wife marriage as extinguishment of debt from one to the

other.

The marriage to the mortgagee of one who has executed a mortgage on her real estate to secure repayment of a loan from

C

ROSS APPEALS from a decree of the Chancery Court for Garland County dismissing the complaint and cross complaint in an action for the cancelation of a mortgage. Reversed.

The facts are stated in the opinion. Messrs. Rector & Sawyer, for defendant:

Where, by virtue of statutes, all property and contractual rights of parties to a marriage are preserved, debts due before marriage from the husband to the wife, and vice versa, are not extinguished by the subsequent marriage.

21 Cyc. 1276; Clark v. Clark, 49 Ill. App. 163; Flenner v. Flenner, 29 Ind. 564; Power v. Lester, 23 N. Y. 527, affirming 17 How. Pr. 413; Keyser v. Keyser, 1 N. Y. City Cit. Rep. 405; Spencer v. Stockwell, 76 Vt. 176, 56 Atl. 661.

Messrs. Davies & Ledgerwood, for plaintiff :

The debt was extinguished by the marriage, and the husband could not foreclose his mortgage. If the debt was entinguished by the marriage, it was extinguished by virtue of the contract of marriage, and not by operation of law.

Williams v. Rivercomb, 31 Ark. 294; Schilling v. Darmody, 102 Tenn. 439, 73 Am. St. Rep. 892, 52 S. W. 291; Stewart, Husb. & W. § 44; Govan v. Moore, 30 Ark. 667; Jackson v. Williams, 92 Ark. 486, 25 L.R.A. (N.S.) 840, 123 S. W. 751; Kies Note. Effect of intermarriage between debtor and creditor upon the indebtedness,

This question is covered in the note to MacKeown v. Lacey, 21 L.R.A. (N.S.) 683. But one case in point, in addition to MCKIE v. MCKIE, has been found that was decided since that note. In Delval v. Gagnon, 213 Mass. 203, 99 N. E. 1095, it was held, upon the authority of MacKeown v. Lacey and Crosby v. Clem, 209 Mass. 193, 95 N. E. 297, that a balance upon a loan made by a married woman to her husband before their marriage can be recovered by her assignee. The Crosby Case is not in point, as the debt was contracted after marriage, and it seems to have been cited more to the point that the wife could make a legal assignment of the claim against her husband.

J. W. M.

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