charge her personally and alone with re- 16. PLEADING
pairs or improvements made on her sepa-
rate real estate by order of the husband, has
no application to real estate which the wife
and husband own as tenants by the entire
ties. Taggart v. Kem, supra, 22 Ind. App.
at page 275, 53 N. E. 651.

It is within the discretion of the court, under Burns' Ann. St. 1914, § 403, relating to amendment of pleadings, to permit a plaintiff to withdraw the submission of the case and file an additional paragraph to the complaint, taxing the costs against the plaintiff, and such with

Finding no reversible error in the record, drawal is not a dismissal of the action. the judgment below is affirmed.

that time has not occupied or used the same; that the parties to this suit are identical with the parties to the suit before the justice of the peace, and the judgment aforesaid is in full force and unappealed from.

The demurrer to the aforesaid second paragraph of answer was for insufficiency of the facts alleged to constitute a defense to appellant's cause of action alleged in her third paragraph of complaint.

drawn on the theory that the deed which ap- It is also averred that on July 10, 1913, by pellant sought to have set aside was in fact agreement of the parties, a judgment was dua mortgage, executed by appellant, a married ly rendered by said justice of the peace, to woman, to secure the debt of her husband. the effect that appellee should have possesThe third paragraph of complaint proceeds sion of the real estate in controversy, but on the theory that the deed in question was provided also that if appellant should, within procured by the duress of appellee, and, in five days, pay to appellee $15, she should substance, charges that on December 30, 1912, have the right to occupy the property until appellant was the owner in fee simple of lot September 1, 1913; that the money was paid 7 in Meeker's addition to the city of Port- in accordance with said agreement; that apland, Ind.; that prior thereto her husband, pellant did not remove from the property on Riley H. Denney, had been employed by ap- September 1, 1913, and on September 2, 1913, pellee as a salesman of cigars, and appellee a writ of restitution was issued for the posthen and there accused him of embezzling session thereof, and in October, 1913, appelcertain money belonging to him, and unlaw-lee removed from the real estate, and since fully and fraudulently represented to appellant that he would cause her husband to be arrested and sent to the penitentiary unless the amount he claimed to have been embezzled was paid to him, or the real estate aforesaid conveyed to him in satisfaction thereof; that to induce her to make such conveyance appellee unlawfully promised and agreed not to prosecute her husband for said crime if she would make such conveyance; that her husband had been arrested on said charge, and was then under bond, and appellee promised her to procure the dismissal of the charge against him and to procure his release if she would make such conveyance to him; that for more than a week prior to the execution of said deed, she was in great fear, sick, and confined to her bed on account of the threats against her husband, and on the date aforesaid, to prevent the carrying out of the threats of prosecution made against him, and for no other purpose or consideration whatever, she executed and delivered to appellee a deed, conveying to him the title to said real estate; that the threats and promises aforesaid, so made by appellee, were made for the purpose of cheating, defrauding, and coercing appellant, and she was thereby coerced, put in fear, and induced to so convey said real estate, as aforesaid, and not otherwise.

The memoranda accompanying the demurrer is, in substance, as follows: (1) The facts alleged do not show a former adjudication of appellant's cause of action; (2) such facts do not constitute an estoppel against appellant; (3) the facts alleged do not show a ratification of the conveyance sought to be set aside.

Appellee does not contend that the answer is good as showing a ratification of the transaction and conveyance by which he obtained title to the property, but asserts its sufficiency, both as a plea of former adjudication and as an estoppel. Neither do the averments of the answer, viewed from their general scope and tenor, indicate any other possible theory than those asserted by appellee. We shall therefore consider the answer from the viewpoint of appellee's contention as to theory.

[1] The answer in question is not good as a former adjudication of title. The question of title was not in issue under the averments, nor does it come within the rule that questions will be deemed adjudicated which might have been litigated and settled within the issue. The justice of the peace could not have adjudicated the question of title, and had the title been put in issue before him, it would have been his imperative duty to have certified the case to the circuit court. Section 1722, Burns 1914; Deane v. Robison, 34 Ind. App. 468–472, 73 N. E. 169; Mitten v. Caswell-Runyan Co., 52 Ind. App. 521-525, 99 N. E. 47.

The first paragraph of answer to the third paragraph of complaint was a general denial. The second paragraph of answer admits the ownership and conveyance of the real estate by appellant, and alleged that the property was conveyed subject to a mortgage for $300 and subject to a mechanic's lien and to accrued taxes; that as a further consideration for the conveyance the parties agreed that appellant should occupy the premises and dwelling house thereon for six months without the payment of rent, at the expiration of which time she and her husband were to surrender possession to appellee; that appellant did so occupy and use said property for six months, and then refused to vacate the same in accordance with the aforesaid agree-equal knowledge of all the facts and circumment; that thereupon appellee brought suit before a justice of the peace for possession of said property, the details of which are alleged.

[2] Neither do we regard the answer sufficient as a plea of estoppel. In the first place both parties to the transaction had

stances involved in the transactions alleged. Appellee was not induced to change his position to his damage by anything said or done by appellant. He asserted his title both be

fore and subsequent to the proceedings before | to appellant, and that by threats and promthe justice of the peace and the arrangement ises, as averred, she was deprived of her about possession of the property. Appellee's free will and induced to convey her property technical legal title was not, and is not, dis- in payment of an alleged debt which was in puted by appellant; for her complaint pro- no sense an obligation she was bound to disceeds on the theory that he has the legal charge, to accomplish a result appellee had title, but that it was procured by fraud and no power, or legal right, to control, but which duress, and should not be allowed to stand. he unlawfully assured appellant he could and Under such conditions the payment of the $15 would control. Cooley on Torts, vol. 2 (3d and the occupancy of the property as alleged Ed.) pp. 966, 967, says: do not estop appellant from asserting her right to have appellee's evidence of legal title the deed-set aside. Penn American Plate Glass Co. v. Schwim, 177 Ind. 645-650, 98 N. E. 715; State v. Mutual Life Ins. Co., 175 Ind. 59-83, 93 N. E. 213, 42 L. R. A. (N. S.) 256; Indianapolis, etc., Co. v. Henby, 178 Ind. 239-251, 97 N. E. 313; Johnson v. Spencer, 49 Ind. App. 166-171, 96 N. E. 1041; Steele v. Michigan Buggy Co., 50 Ind. App. 635-642, 95 N. E. 435.

[3] But appellee contends that the third paragraph of complaint is insufficient to state a cause of action, and that the demurrer to the answer should be carried back to the complaint and be sustained. A demurrer to the third paragraph of complaint was duly presented and overruled. Appellee could have assigned cross-errors, but has not done so. Whether, in such case, under our present demurrer law, the demurrer to the answer could be carried back to the complaint, and sustained, if the paragraph of complaint were insufficient, we do not decide, for the reason we deem the paragraph sufficient to state a cause of action for procuring the deed by

duress.

[4] Appellee now asserts that the para

"Duress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing the injury. Where the wife upon a threat to prosecute, arrest, or a deed, mortgage, or notes are obtained from imprison her husband, the instruments are void."

The above statement is in harmony with the decisions of our own courts and the prevailing weight of authority generally, with the possible modification or explanation that contracts or other instruments so procured are not, strictly speaking, void, because they may be ratified, but are voidable by the party so induced to execute them. To give validity to any contract, the law) requires the free assent of the parties to be bound thereby, and the trend of modern authority is to relieve a party from his obligation or deed when, through fear, terror, or violence, he has been deprived of free and voluntary action by the other contracting party, or by one acting for and in behalf of such party.

[5] In determining the question of duress, the courts take into account the age, sex, capacity, situation, and relation of the parties and all the attending circumstances which throw any light upon the particular transaction under investigation. 2 Cooley on Torts, p. 969; Rose v. Owen, 42 Ind. App. 137-141, 85 N. E. 129; Bush v. Brown, 49 Ind. 573-577, 578, 19 Am. Rep. 695; Schee V. McQuilken, 59 Ind. 269-278; Line v. Blizzard, 70 Ind. 23-25; Adams v. Stringer, 78 Ind. 175-180; Baldwin v. Hutchison, 8 Ind. App. 454 458, 35 N. E. 711; Cribbs v. Swole, 87 Mich. 340, 49 N. W. 587, 24 Am. St. Rep. 166-171; First Nat. Bank v. Sargent, 65 Neb. 594, 91 N. W. 595, 59 L. R. A. 296299; Bryant v. Peck & Whipple Co., 154 Mass. 460, 28 N. E. 678; Turner v. Overall, 10 Ga. App. 18, 72 S. E. 604; Benedict v. Roome, 106 Mich. 378, 64 N. W. 193; State Bank, etc., v. Hutchinson, 62 Kan. 9, 61 Pac. 443; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398; Lomerson v. Johnson, 44 N. J. Eq. 93, 13 Atl. 8; Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417; Pierce v. Brown, 7 Wall. 205, 19 L. Ed. 134– 137; 9 Cyc. p. 443; 14 Cyc. p. 1123.

graph is bad for failure to aver the value of the real estate, and to show that appellee did not pay full value therefor; also that the averments do not show that appellant was deprived of her free agency, and did not act voluntarily in executing the deed to appellee. The allegations show that appellant was the owner of the real estate, and that to prevent the carrying out of the threats against her husband, "and for no other purpose or consideration whatever," she executed the deed to appellee; that by the threats and promises of appellee she was coerced, put in fear, and induced to so convey her property and not otherwise. Under the rules of pleading now established in this state, these averments show that there was no consideration whatever moving to appellant for the conveyance of her property; that she was put in fear and made sick by the threats against her husband, and by such threats and the prom- [6, 7] Appellee asserts that in any event the ise of appellee to prevent the prosecution of judgment should not be reversed for two her husband for embezzlement and to pro- reasons, viz.: (1) Because the record shows cure his release she was coerced into ex- that after the submission of the cause and ecuting the deed, and was moved to do so the hearing of evidence, the court perwholly on account of such threats and prom-mitted appellant to withdraw the submission ises. Whether the value of the property was great or small is immaterial when the al

and file the third paragraph of complaint, which was in effect a dismissal of the ac

CALDWELL, IBACH, McNUTT, and HOTTEL, JJ., concur. MORAN, P. J., not participating.

(63 Ind. App. 211)

NATIONAL LIVE STOCK INS. CO. v.
CRAMER. (No. 9116.)
(Appellate Court of Indiana, Division No. 2.
Dec. 13, 1916.)

1. INSURANCE 131(1), 145(1) — CONTRACTS
TO RENEW POLICY-ORAL CONTRACT.

An insurance company can, by a preliminary oral contract, bind itself to issue or renew a policy of insurance in the future.

the ruling complained of was harmful and | for further proceedings not inconsistent with has failed to do so. On the record before us this opinion. neither of these contentions can be sustained. While the court permitted appellant to withdraw the submission of the cause and file the third paragraph of complaint, it adjudged the costs up to that time against appellant before permitting her to file such third paragraph. Appellee moved to strike out certain parts of the third paragraph, and thereafter demurred thereto and obtained the rulings of the court thereon. The case was duly put at issue on the third paragraph of complaint as above shown, the cause was resubmitted for trial without a jury, the evidence heard, the case taken under advisement, and later on the finding of the court was announced and the judgment rendered as above stated. The procedure was fully within the discretionary power of the court, and, furthermore, appellee has not properly challenged the court's action and has wholly failed to indicate that he was in any way misled or harmed by the action of the court, but, on the contrary, he obtained judgment in his favor. The case was not dismissed by the withdrawal of the submission, and was not finally disposed by the trial court until the judgment was rendered from which this appeal was prayed. Section 403, Burns 1914; Burnett v. Milnes, 148 Ind. 230-235, 46 N. E. 464.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 204-207, 280; Dec. Dig. 131(1), 145(1).]

2. INSURANCE ~145(2) AUTHORITY AGENT-RENEWAL.

OF

Where the agent of a live stock insurance company, whether called a general or special agent, had apparent authority to solicit insurance, deliver policies, and do all things necessary to transact the business intrusted to his care and no restriction of his authority was brought home to the applicant, the company is bound by his oral contract to renew a policy made prior to the expiration of the former policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 277; Dec. Dig. 145(2).] 3. INSURANCE 145(2)

AUTHORITY OF AGENT-RENEWAL-LETTER FROM COMPANY. [8] Where the court overrules a demurrer policy holder, notifying him of the expiration A letter from an insurance company to a to a bad answer, the ruling is presumed to be of his insurance and requesting him to see its harmful, and will constitute reversible error, agent and to let the agent take care of his unless it is affirmatively shown by the rec-interest, justifies the policy holder in assuming that the agent had full and general authority to act for it.

ord that the ruling was not harmful. In making such ruling, the court commits an error of law which is presumed to be carried into the final judgment, unless the contrary is shown by the record and the duty of making such showing rests upon the party who contends that the error was harmless. This rule is sometimes confused with the one which obtains where the court erroneously sustains a demurrer to a good answer and it appears that the same proof was admissible under another paragraph held good, or that the party in some way obtained the full benefit of such answer, in which event the error in sustaining such demurrer is held to be harmless. Gregory v. Arms, 48 Ind. App. 562-578, 96 N. E. 196; Norris v. Tice, 13 Ind. App. 17-21, 39 N. E. 1046; Bowlus v. Phenix Ins. Co., 133 Ind. 106-118, 32 N. E. 319, 20 L. R. A. 400; C., C., C. & St. L. Ry. Co. v. Case, 174 Ind. 369-376, 91 N. E. 238.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 277; Dec. Dig. 145(2).] 4. INSURANCE 145(2)-CONTRACT OF InsurANCE-CONDITIONS RENEWAL.

Provisions in an insurance policy, limiting the authority of the agent and requiring notice of certain facts, are limited to that policy, and do not apply to an oral contract for renewal. Cent. Dig. § 277; Dec. Dig. 145(2).] [Ed. Note.-For other cases, see Insurance, 5. APPEAL AND ERROR 1033(9) PARTIES ENTITLED TO ALLEGE ERROR-ERROR FAVORABLE TO APPELLANT.

A defendant who appeals from the judgment the findings the judgment should have been for rendered against him cannot object that under a larger amount.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4061; Dec. Dig. 1033(9).]

Appeal from Circuit Court, Henry County; John F. La Follette, Special Judge.

Action by Joe Cramer against the National Live Stock Insurance Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

For the error in overruling the demurrer to appellee's second paragraph of answer to appellant's third paragraph of complaint, M. S. Meyberg, of Indianapolis, for appelthe judgment is reversed, with instructions lant. Forkner & Forkner, of New Castle, for to sustain appellant's motion for a new appellee. trial, to sustain the demurrer to said second paragraph of answer, and to permit the par- IBACH, J. Appellant issued a live-stock inties to amend their pleadings, if desired, andsurance policy to appellee for a term of one

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes