« PředchozíPokračovat »
of the judgment, and who was before way. It was further held in this case the Louisiana court protesting against that a court of Louisiana should not such action, the court would still be undertake to make the Italian decree obliged to consider that a judgment a decree of Louisiana as of the date of by a court of the common domicil, de- the Italian decree in order to afford termining the marital status of the the husband the basis of a decree a parties thereto, is usually held to have vinculo under the Louisiana statute, the force of, if not to constitute, res which provides for a decree a vinculo judicata, and that the question so de- after the lapse of a certain period termined cannot with propriety, at the from a decree a mensa et thoro; and instance of the party cast, be again reversed a decree to that effect rendetermined by a court of another coun- dered by the court below. try, whether in the same or another
G. H. P.
(- Fla. , 81 So. 154.) Mortgage - duress — innocence of mortgagee.
1. A mortgage will not be set aside because of duress exercised upon the mortgagor in its procurement, such duress not being participated in by the mortgagee.
[See note on this question beginning on page 864.] - coercion threats of arrest.
fraud effect. 2. Threats of a lawful arrest for an
3. The fact that a wife was induced offense which has actually been committed is not in itself a sufficient
to execute a mortgage by fraud and ground for the cancelation of a mort- deception on the part of her husband, gage which has been executed as a re
in which the mortgagee did not parsult of such threats, and made to secure the maker of the threats for the
ticipate and of which he had no knowlloss occasioned to him by the commis- edge, does not affect its validity. sion of such crime.
[See 19 R. C. L. 296, 297.] [See 9 R. C. L. 719.] Headnotes by WEST, J.
APPEAL by defendants from a decree of the Circuit Court for Hamilton County (Horne, J.) in favor of complainant in a suit to foreclose a mortgage. Affirmed.
The facts are stated in the opinion of the court.
West J., delivered the opinion of deed, and the bill recites that the the court:
original mortgage is attached to and This is an ordinary mortgage made a part of the bill. We assume, foreclosure. The mortgage sought therefore, that it is in proper form to be foreclosed covers certain de- and duly executed. scribed lots in the town of Jasper. The decree was for the complainThe bill to foreclose is in the usual ant, and the defendants appeal. form, and, while the mortgage is Two questions are presented for
(-- Fla. --, 81 So. 154.) our consideration. The first as- there was no basis for the alleged signment of error questions the threatened prosecution in the transsoundness of the order granting the actions referred to motion to strike a certain para- between this
coerciongraph from the answer of the de- fendant and the threats of fendant John Smith. By the stricken bank (1 Jones, paragraph of his answer this de- Mortg. $ 623; Englert v. Dale, 25 N. fendant averred: That, at the time D. 587, 142 N. W. 169); and, in the of the execution of the mortgage second place, there is no allegation sought to be foreclosed, he was that the mortgage was extorted president of the complainant bank. from him by means of duress prac"That the duly qualified bank ex- tised upon him by the mortgagee aminer, commissioned to examine (J. M. Robinson, N. & Co. v. Randall, state banks in the state of Florida, 147 Ky. 45, 143 S. W. 769; Moog v. pursuant to said commission, came Strang, 69 Ala. 98). It will be obto examine complainant bank. The served that the alleged prosecution notes described in said amended bill that defendant feared was at the of complaint and also described in hands of a “duly qualified bank exsaid mortgage were then and there aminer commissioned to examine held by complainant bank, and the state banks of the said examiner then and there in- state of Florida." Innocence of formed this defendant that the said There is no suggesnotes were unsatisfactory paper for tion of a threat of prosecution by said complainant bank to have and the complainant, to whom the mortblamed this defendant with the fact gage was given. There was, therethat complainant then and there fore, no error in this ruling. had such paper among its assets, The second assignment assails the and led this defendant to believe order granting the motion to strike that he had violated the law in per- a paragraph of the answer of the mitting said bank to have such defendant Florence Smith. The paper among its assets, and told paragraph which was stricken is as this defendant that he had to give follows: "The husband of this desaid mortgage to secure the pay- fendant, John F. Smith, presented ment of the same, and he led this said mortgage to her and requested defendant to believe that he would her to sign the same; and to induce prosecute him criminally if he did her to sign the same he then and not execute said mortgage, and this there fraudulently and deceitfully defendant did then and there, by stated to her that it did not convey reason of the statements made to and mortgage her separate statuhim by said examiner, believe that tory property and estate; that said he violated the Banking Laws of the statement that said mortgage did state of Florida, and had made him- not convey and mortgage her said self liable to criminal prosecution, separate statutory property and esand this defendant did then and tate was false and fraudulent and there, by reason of the statements known by the said John F. Smith to made to him by said examiner, be- be false and fraudulent when he lieve that said examiner was going made it, but this defendant did beto prosecute him if he did not exe- lieve said statement to be true at cute said paper, and this defendant the time she executed said mortgage avers that it was through fear of and she did rely on said statement this prosecution at the hands of said and did execute said mortgage examiner he executed said mort- without making any investigation; gage at the request of said ex- that this defendant did not know aminer.”
the description of her said separate There are two defects in this par- statutory property and estate and agraph of the answer. In the first did not know that it was described place, there is no allegation that as lots numbered 97 and 98 of Tompkins survey of the town of statutory property were included in Jasper, Florida, and relying on and the mortgage. believing said statements she did It seems to be well settled that execute said mortgage without mak- the fact that a wife was induced ing any inquiry as to the land con- to execute a mortgage by fraud and veyed and mortgaged by said deception on the mortgage, and she executed the part of her hus
hus. -fraud-effect. same believing that it did not con- band, in which the mortgagee did vey and mortgage her separate stat- not participate and of which he had utory property and estate, and this no knowledge, does not affect its defendant further says that when validity. Pacific Guano
Co. v. the said mortgage was delivered to Anglin, 82 Ala. 492, 1 So. 852; complainant bank by the said John Walker v. Nicrosi, 135 Ala. 353, 33 F. Smith she was then still unad- So. 161; Mohr v. Griffin, 137 Ala. vised and did not know that the 456, 34 So. 378; Bode v. Jussen, 93 same did convey and mortgage her Neb. 482, 140 N. W. 768; Riggan v. separate statutory property and es- Sledge, 116 N. C. 87, 20 S. E. 1016; tate."
Butner v. Blevins, 125 N. C. 585, It is apparent that the alleged 34 S. E. 629; Shell v. Holston Nat. fraud practised upon this defend- Bldg. & L. Asso.
52 S. ant was the fraud of her husband, W.909; Tracy v. Harris, 5 Ga. App. and not the fraud of the complain 392, 63 S. E. 233. It follows that ant. There is no suggestion that
this assignment must also fail. the complainant participated in
It is also urged that there was the fraudulent representations by
no consideration for the mortgage;
but this contention is settled adwhich she was induced to sign the
versely to defendants by $ 2959, mortgage, or that it even knew of
General Statutes of 1906, Compiled such representations. Neither is
Laws 1914. there a suggestion that she might
The decree will be affirmed. not by the exercise of ordinary care have discovered before the delivery
Taylor, Whitfield, and Ellis, JJ., of the mortgage that the two lots concur. which she claims as her seperate Browne, Ch. J., absent.
Validity of contract executed under duress exercised by third person.
I. In general, 864.
a. Deeds, 868.
e. Assignments, 870.
1. In general. The great weight of authority is to the effect that the validity of a contract is not affected by the fact that its execution was induced by duress practised by a stranger thereto, where such duress was not committed with the knowledge or consent of the obligee. In other words, duress exercised by a third person does not affect the rights of an obligee who does not par
ticipate therein. The following cases support this general rule:
United States.-Beals Neddo (1880) 1 McCrary, 206, 2 Fed. 41.
Alabama.-Cahall v. Citizens Mut. Bldg. Asso. (1878) 61 Ala. 232 (dictum); Rogers v. Adams (1880) 66 Ala. 600; Moog v. Strang (1881) 69 Ala. 98; Orendorff v. Suit (1910) 167 Ala. 563, 52 So. 744.
Arkansas.-Donahue v. Mills (1883)
41 Ark. 421; Goodrum v. Merchants Nebraska.-Bode v. Jussen (1913) & Planters Bank (1912) 102 Ark. 326, 93 Neb. 482, 140 N. W. 768; Jussen v. 144 S. W. 198, Ann. Cas. 1914A, 511; Bode (1913) 93 Neb. 490, 140 N. W. Harper v. McGoogan (1913) 107 Ark. 771. 10, 154 S. W. 187.
New Jersey.-Homeopathic Mut. L. California.--Brumagim v. Tilling- Ins. Co. v. Marshall (1880) 32 N. J. hast (1861) 18 Cal. 265, 79 Am. Dec. Eq. 103; Mullin v. Leamy (1911) 80 176 (dictum); Garrison v. Tillinghast N. J. L. 484, 79 Atl. 257; Travis v. (1861) 18 Cal. 404 (dictum).
Unkart (1916) 89 N. J. L. 571, 99 Atl. Florida. — SMITH COMMERCIAL 320, Ann. Cas. 1917C, 1031. BANK (reported herewith) ante, 862. New York.-Sherman v. Sherman Georgia. — Hughie
Hammett (1892) 47 N. Y. S. R. 404, 20 N. Y. (1898) 105 Ga. 368, 31 S. E. 109; John- Supp. 414 (but see other New York son v. Leffler Co. (1905) 122 Ga. 670, cases infra). 50 S. E. 488.
North Carolina.—Butner v. Blevins Illinois. Marston V. Brittenham (1899) 125 N. C. 585, 34 S. E. 629 (rule (1875)* 76 Ill. 611; Ladew V. Paine statutory); Davis v. Davis (1907) 146 (1876) 82 Ill. 221; Schwartz v.
N. C. 163, 59 S. E, 659 (rule statutory). Schwartz (1888) 29 Ill. App. 516.
Oklahoma. See Piekenbrock Indiana.-Line V. Blizzard (1880)
Smith (1914) 43 Okla. 585, 143 Pac. 70 Ind. 23; Gardner v. Case (1887)
675, and Huston v. Domeny (1916) 111 Ind. 494, 13 N. E. 36.
Okla. 173 Pac. 805. Iowa.-Green v. Scranage (1865) 19
Oregon.—Guinn v. Sumpter Valley Iowa, 461, 87 Am. Dec. 447.
R. Co. (1912) 63 Or. 368, 127 Pac. 987. Kentucky. - Fightmaster V. Levi
Pennsylvania.-Singer Mfg. Co. v. (1891) 13 Ky. L. Rep. 412, 17 S. W.
Rook (1877) 84 Pa. 442, 24 Am. Rep.
204. 195; Frasure v. McGuire (1902) 23 Ky. L. Rep. 1990, 66 S. W. 1015; Long v.
Tennessee.-Finnegan v. Finnegan Branham (1907) 30 Ky. L. Rep. 552,
(1876) 3 Tenn. Ch. 510; Shell v. Hol99 S. W. 271; Ely v. Hartford L. Ins.
ston Nat. Bldg. & L. Asso. (1899) Co. (1908) 128 Ky. 799, 110 S. W. 265;
Tenn. 52 S. W. 909. J. M. Robinson, N. & Co. v. Randall
Texas.-Dimmitt v. Robbins (1889) (1912) 147 Ky. 45, 143 S. W.769; Fears
74 Tex. 441, 12 S. W. 94. v. United Loan & Deposit Bank (1916)
Virginia. - Talley v. Robinson 172 Ky. 255, 189 S. W. 226. Compare
(1872) 22 Gratt. 888. Shepherd v. Shepherd (1917) 174 Ky. West Virginia.-Dunfee v. Childs 615, 192 S. W. 658, infra, II. h. And (1906) 59 W. Va. 225, 53 S. E. 209. see Luke v. Gunnell, 1 Ky. Ops. 258, England.-(1509) Keilw. 154, pl. 3, as set out in Cyc. Supp. (1914–1918) p. 72 Eng. Reprint, 327. 1141, title, Deeds, p. 584, note 82.
“Duress to avoid a contract must be Maryland.-Baltimore v. Lefferman the act of the other party himself or (1846) 4 Gill, 425, 45 Am. Dec. 145 his agent, or must be imposed with his (dictum).
knowledge and taken advantage of by Massachusetts.-Fairbanks v. Snow him for the purpose of obtaining the (1887) 145 Mass. 153, 1 Am. St. Rep. agreement. Duress by a third person 446, 13 N. E. 596; Morse v. Woodworth will not avoid a contract made with (1892) 155 Mass. 233, 27 N. E. 1010, a party who was not cognizant of it." 29 N. E. 525.
Ely v. Hartford L. Ins. Co. (1908) 128 Michigan.-Boydan v. Haberstumpf Ky. 799, 110 S. W. 265. (1901) 129 Mich. 137, 88 N. W. 386. In Fairbanks v. Snow (1887) 145 Mississippi.-Johnston v. Wallace —
Mass. 153, 1 Am. St. Rep. 446, 13 N. (1876) 53 Miss. 331, 24 Am. Rep. 699. E. 596, in overruling the exception to
Missouri. - Springfield Engine & a refusal to rule that knowledge or Thresher Co. v. Donovan (1898) 147 lack of knowledge upon the part of Mo. 622, 49 S. W. 500; McCormick v. the obligee that the instrument in suit St. Louis (1901) 166 Mo. 315, 65 S. W. had been procured by duress was im1038.
material, Holmes, J., adopted the 4 A.L.R.—55.
above-stated general rule, and in the In Thoroughgood's Case (1582) 2 course of his argument said: “No Coke, 9, 76 Eng. Reprint, 408, 6 Eng. doubt if the defendant's hand had Rul. Cas. 202, it was said obiter, that been forcibly taken and compelled to "if a stranger menace A to make a hold the pen and write her name, and deed to B, A shall avoid the contract the note had been carrieu off and de- which he made by such threats, as well livered, the signature and delivery as if B himself had threatened him.” would not have been her acts; and if And in National Bank v. Cox (1900) the signature and delivery had not 47 App. Div. 53, 62 N. Y. Supp. 314 been her acts for whatever reason, no (motion to withdraw appeal granted contract would have been made, in (1901) 165 N. Y. 639, 59 N. E. whether the plaintiff knew the facts 1127), it was held that, in a suit to or not. There sometimes still is shown foreclose a mortgage, the mortgagor an inclination to put all cases of du- could avoid the same by proof that it ress upon this ground.
But was executed under duress exercised duress, like fraud, rarely, if ever, be- by a third person, although neither the comes material, as such, except on the mortgagee nor his agent participated footing that a contract or conveyance in the duress or knew anything about has been made which the party wishes it. In this case the court held that the to avoid. It is well settled that where, mortgage was "voidable,” but then as usual, the so-called duress consists proceeded to argue as though it were only of threats, the contract is only absolutely void, saying: “The prinvoidable.
This rule neces- ciple upon which contracts obtained sarily excludes from the common law by duress are avoided is that the party the often-recurring notion, just re- who was coerced to make them never ferred to, and much debated by the in fact consented to do so, and that, civilians, that an act done under com- therefore, the apparent contract does pulsion is not an act, in a legal sense. not exist in fact. If that be the case, Again the ground upon which
and the contract has in fact no exista contract is voidable for duress is
ence, it cannot be binding upon anythe same as in the case of fraud, and body. It is quite true that under ceris that, whether it springs from a fear tain circumstances the person who of from a belief, the party has been was coerced may be estopped from insubjected to an improper motive for sisting that the contract was not valid, action. . . But if duress and fraud but, unless thus estopped, he is at libare so far alike, there seems to be no erty to assert the invalidity of the consufficient reason why the limits of tract whenever he is called upon to their operation should be different. A perform it, even though the person party to a contract has no concern
thus calling upon him may have been with the motives of the other party for
a bona fide holder for value.” The making it, if he neither knows them facts as found by the court were that nor is responsible for their existence. the mortgagee's son had obtained It is plain that the unknown fraud of money from plaintiff bank on forged a stranger would not prevent the checks, that the mortgage was exeplaintiff from holding the defendant.” cuted by the mother at the instance of However, there is some authority to a friend of the son while she was unthe effect that one who has executed der duress, the friend having made a contract while under duress prac- representations with respect to crimitised by a third person may avoid the nal punishment, etc.; but that neither same even as against an innocent the bank nor its attorney who handled obligee.
the matter either authorized the stateThus in 1 Sheppard's Touchstone, ments made by the friend, or knew 61, it was said that “if one threaten anything about them. There seeminganother to kill or maim him if he will ly being no distinguishing features, not seal a deed to a stranger, and the decision must be regarded as thereupon he do so, this is void as if clearly in conflict with the great it were to the party himself.”
weight of authority. In the latter con