Obrázky stránek
PDF
ePub

rection, see Sherman v. Sherman (1892) 47 N. Y. S. R. 404, 20 N. Y. Supp. 414, where the court, in holding that a marriage will not be annulled for duress unless it is shown that the other contracting party caused, or at least knew of, the duress, recognized the general rule that no contract can be annulled for duress unless it appears that the obligee occasioned the duress or knowingly used or availed himself of it as a means of procuring such contract.

And again, in Central Bank v. Copeland (1862) 18 Md. 305, 81 Am. Dec. 597, where a wife executed a mortgage while under duress practised by her husband to secure a debt owed by him, it was held that the fact that the mortgagee took no part in procuring the execution of the mortgage neither strengthened his right to set it up as valid, nor impaired her right to avoid it. This was upon the theory that since the execution was procured by the husband acting in the mortgagee's interest and for his benefit, his acceptance of the mortgage implied an adoption of the husband's agency so that the mortgagee had no right to enforce it free from the infirmity of the duress. It does not appear in this case, however, whether or not the mortgagee had knowledge of the exercise of the coercion by the husband, the opinion merely stating that the mortgagee took no active part.

And in the New York case of Barry v. Equitable Life Assur. Soc. (1875) 59 N. Y. 587, it was held that the assignee of a life insurance policy could not hold the policy as against the assignor where the assigpment was made by a woman acting under duress practised by her husband, and this even though the assignee had no knowledge of the duress.

And in Louisiana it has been held, as stated by the court in the second headnote to Bryant v. Levy (1900) 52 La. Ann. 1649, 28 So. 191, that duress will vitiate and invalidate a contract, although the obligee did not bring the fear to bear and was ignorant of it. In this case the duress was exercised by a labor association, and the obligor had to execute the contract or face

inevitable and complete financial ruin. In connection with this ruling, see La. Civ. Code, arts. 1851, 1852.

So in Minnesota, where the statutes provide that “the acknowledgment of the wife shall be taken separately, apart from her husband,” it has been held that an acknowledgment of a mortgage executed by a wife while under duress previously practised by her husband, and in his presence, invalidated the mortgage even as to the mortgagee, who did not know of the duress or of the presence of the husband at the time of the taking of the acknowledgment. Edgerton v. Jones (1865) 10 Minn, 427, Gil. 341. The court said that the fact that the mortgagee was entirely ignorant and innocent as regards the duress “was not important," and further that "he had no right to be ignorant of the manner in which the mortgage was executed and acknowledged; it ran to him; he was not obliged to take it or advance money on it; if he saw fit to do so without making prudent inquiry, it was his own misfortune.”

And under constitutional provisions and statutes requiring the consent of both the husband and the wife to a conveyance or encumbrance of their homestead, it has been held that the execution by a married woman of a deed or mortgage of homestead property while under duress is not voluntary within the meaning of the Homestead Law, and, therefore, that such an instrument is invalid even as to a grantee or mortgagee who had no knowledge of, and did not participate in, the duress. Anderson v. Anderson (1872) 9 Kan. 112, holding that the good faith of the purchaser cannot be considered in determining the validity of a deed executed under such circumstances. And Berry v. Berry (1897) 57 Kan. 691, 57 Am. St. Rep. 351, 47 Pac. 837, wherein it was said that in such a case the instrument does not rise to the rank of a mortgage, and is absolutely void even as against a bona fide holder. And see also First Nat. Bank v. Bryan (1883) 62 Iowa, 42, 17 N. W. 165.

It also has been held that a marriage may be annulled at the suit of the hus

see

band on the ground that it was pro- conveyance by husband and wife shall cured through duress of friends and be deemed invalid by reason of duress relatives of the wife, although she unless the grantee had notice thereof herself was guilty of no duress. or participated therein. See Davis v. Marks v. Crume (1895) 16 Ky. L. Rep. Davis (1907) 146 N. C. 163, 59 S. E. 707, 29 S. W. 436. And see Fowler v. 659, which applies North Carolina ReFowler (1913) 131 La. 1088, 60 So. 694. visal, 8 956. But compare Shepherd v. Shepherd

b. Mortgages. (1917) 174 Ky. 615, 192 S. W. 658, and Sherman v. Sherman (1892) 47 N. Y.

Applying the general rule, it has S. R. 404, 20 N. Y. Supp. 414, both of

been held, generally, that duress will which are set out infra, II. h.

not avoid a mortgage where the mort

gagee did not participate in such duII. Particular contracts.

ress. SMITH V. COMMERCIAL BANK

(reported herewith) ante, 862, (morta. Deeds.

gage executed to a bank by a mortThe general rule that the duress of

gagor under duress practised by a a stranger to a contract does not affect

bank examiner); J. M. Robinson, an innocent obligee has been applied N. & Co. v. Randall (1912) 147 Ky. to deeds as to the taking of which the 45, 143 S. W. 769. (mortgage executgrantee acted in entire good faith. ed under duress practised by coTalley v. Robinson (1872) 22 Gratt. mortgagor); Fears v. United Loan (Va.) 888 (grantor mobbed and driv

& Deposit Bank (1916) 172 Ky. 255, en from county). And see Dunfee v. 189 S. W. 226 (mortgage executed by Childs (1906) 59 W. Va. 225, 53 S. E. wife under duress practised by one 209.

threatening to prosecute her husAnd the fact that a married woman band). But see National Bank v. Cox signed a deed while under duress prac- (1900) 47 App. Div. 53, 62 N. Y. Supp. tised by her husband does not invali- 314 (motion to withdraw appeal grantdate the grantee's title where he has ed in (1901) 165 N. Y. 639, 59 N. E. no notice or knowledge of such duress. 1127) as set out supra, I. Hughie v. Hammett (1898) 105 Ga.

Nor can a deed of trust be affected 368, 31 S. E. 109; Fightmaster v. Levi by duress not exercised or participated (1891) 13 Ky. L. Rep. 412, 17 S. W.

in by the grantee. Goodrum v. Mer195; Luke v. Gunnell, 1 Ky. Ops. 258,

chants & Planters Bank (1912) 102 as set out in Cyc. Supp. (1914–1918)

Ark. 326, 144 S. W. 198, Ann. Cas. p. 1141, title, Deeds, p. 584, note 82;

1914A, 511. Johnston v. Wallace (1876) 53 Miss.

So it has been held that the validity 331, 24 Am. Rep. 699; Guinn v. Sumpter Valley R. Co. (1912) 63 Or. 368,

of a mortgage executed by a husband 127 Pac. 987; Finnegan v. Finnegan

and wife is not affected by the fact (1876) 3 Tenn. Ch. 510.

that the wife's signature was obtained And the same has been held as to by means of duress practised by the a bond for title executed by a wife husband, where the mortgagee was while under the influence of duress not privy thereto, and did not connive practised by the husband. Frasure v. at or in any way participate in such McGuire (1902) 23 Ky. L. Rep. 1990, duress or have knowledge thereof. 66 S. W. 1015. An exception to this United States.-Beals V. Neddo rule has been made, however, where (1880) 1 McCrary, 206, 2 Fed. 41. the conveyance was of the homestead, Alabama.-Rogers v. Adams (1880) and the Constitution and statutes pro- 66 Ala. 600. vide that both the husband and wife Georgia.—Johnson v. Leffler Co. must consent to a conveyance of the (1905) 122 Ga. 670, 50 S. E. 488. homestead. See Anderson V. Ander- Illinois.-Ladew v. Paine (1876) 82 son (1872) 9 Kan. 112, as set out su- Ill. 221.

Indiana.-Line v. Blizzard (1880) 70 In North Carolina it is expressly Ind. 23; Gardner v. Case (1887) 111 provided by statute that no deed of Ind. 494, 13 N. E. 36.

pra, I.

[ocr errors]

Iowa.—Green v. Scranage (1865) 19 Iowa, 461, 87 Am. Dec. 447.

Kentucky.-Long v. Branhan (1907) 30 Ky. L. Rep. 552, 99 S. W. 271.

Missouri.-Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500.

Nebraska.-Bode v. Jussen (1913) 93 Neb. 482, 140 N. W. 768; Jussen v. Bode (1913) 93 Neb. 490, 140 N. W. 771.

New Jersey.-Homeopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103.

In this connection, however, see Central Bank v. Copeland (1862) 18 Md. 305, 81 Am. Dec. 597, and Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, both of which are set out supra, I.

And the same has been held as to a deed of trust executed under similar circumstances. Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Marston v. Brittenham (1875) 76 Ill. 611; Shell v. Holston Nat. Bldg. & L. Asso. (1899) — Tenn. —, 52 S. W. 909,

And the rule is that the validity of a mortgage executed under the influence of duress exercised upon a woman by the various members of her family is in no wise affected by such duress where the mortgagee did not participate therein and in fact had no knowledge thereof. Moog v. Strang (188 69 Ala, 98 (mortgage executed for purpose of covering moneys embezzled by mortgagor's son-in-law).

In North Carolina it is expressly provided by statute that no deed of conveyance by husband and wife shall be deemed invalid because its execution was procured by duress, unless the grantee had notice of or participated in such duress; and this statute has been held to apply to mortgages. See Butner v. Blevins (1899) 125 N. C. 585, 34 S. E. 629, applying the North Carolina Act 1899, chap. 389, and holding that the defense of duress cannot be raised in a mortgage-foreclosure proceeding in the absence of allegation and proof that the mortgagee had knowledge of or participated in the duress.

c. Certificates of acknowledgment. A certificate of acknowledgment of a mortgage executed by a married

woman cannot be assailed for duress unless such duress was participated in by the mortgagee or brought to his notice when parting with the consideration. Orendorff v. Suit (1910) 167 Ala. 563, 52 So. 744; Ladew v. Paine (1876) 82 Ill. 221; Homeopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103; Singer Mfg. Co. v. Rook (1877) 84 Pa. 442, 24 Am. Rep. 204. But see Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, as set out supra, I.

So it has been held that a certificate of acknowledgment of a deed of trust executed by a married woman is not affected by duress if the grantee was not a party to and had no knowledge of the duress. Donahue v. Mills (1883) 41 Ark. 421; Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500. And this is the rule, although the duress was exercised by the husband of the grantor. Marston

Brittenham (1875) 76 Ill. 611..

And it has been said that a certificate of acknowledgment executed by a married woman at the instance of her husband cannot be impeached for duress unless it is shown that the grantee had knowledge of the duress. Cahall v. Citizens Mut. Bldg. Asso. (1878) 61 Ala. 232; Johnston v. Wallace (1876) 53 Miss. 331, 24 Am. Rep. 699; Davis v. Davis (1907) 146 N. C. 163, 59 S. E. 659.

d. Notes. The general rule is that duress, to be available as a defense to a note, must have been exercised by the payee or by someone acting in his behalf or with his knowledge. Mullin v. Leamy (1911) 80 N. J. L. 484, 79 Atl. 257; Travis v. Unkart (1916) 89 N. J. L. 571, 99 Atl. 320, Ann. Cas. 1917C, 1031.

Nor is the validity of a note in the hands of the payee affected by the fact that the maker, a married woman, executed it while under the duress of her husband, if he took the note in ignoance of such duress. Fairbanks Snow (1887) 145 Mass. 153, 1 Am. St. Rep. 446, 13 N. E. 596.

And see also supra, II. b.

6. Assignments.

h. Marriages. The rule that duress practised by The validity of a marriage in so far one not a party to a contract does not as the wife is concerned is not affectaffect the rights of an innocent party ed by the fact that the husband was has been held to apply to an assignment under duress practised by third perof an insurance policy, the execution sons, she being in ignorance of the of which by the beneficiary was the re- duress at the time of the marriage. sult of duress practised upon her by Schwartz v. Schwartz (1889) 29 III. the husband, the insured, the assignee App. 516; Sherman v. Sherman (1892) being entirely innocent. Ely v. Hart- 47 N. Y. S. R. 404, 20 N. Y. Supp. 414 ford L. Ins. Co. (1908) 128 Ky. 799, (holding that the legal principles gov110 S. W. 265.

erning the authority of the court to However, the contrary rule was

annul a marriage on the ground of adopted in the New York case of Barry duress of one of the parties thereto v. Equitable Life Assur. Soc. (1875)

are the same as those applied when 59 N. Y. 587, which is set out supra, I.

the annulment of any other contract

is requested upon the like ground, and 1. Compromises and settlements.

that to be available as a ground for

relief it must appear that the duress The rule that duress does not ap

of the party asking to be relieved was ply to a nonparticipating party to a occasioned by the other contracting contract has been applied to a settle

party or that he knowingly used or ment of a claim for damages for il- availed himself of it). legal sales of intoxicating. liquor to In Shepherd v. Shepherd (1917) 174 plaintiff's husband. Boydan v. Haber- Ky. 615, 192 S. W. 658, the court said stumpf (1901) 129 Mich. 137, 88 N. that under the general rule of the W. 386, holding that evidence of du- common law as applied to the duress ress by third persons was not admissi- necessary to avoid a marriage, it was ble to invalidate a receipt unless it necessary that the duress exercised was also shown that the defendant be by the other party to the marriage, had previously authorized the duress or at least that such party was cogor unless there was a subsequent rati

nizant of the duress, and knew that fication of the acts of such third par

the complaining party was acting unties and a taking advantage of them

der fear induced by the duress; but by the defendant.

that it was held by the court in Marks So, in Missouri it has been held that

v. Crume (1895) 16 Ky. L. Rep. 707, 29 to avoid a settlement because entered

S. W. 436, that fear inspired by the into under duress of third persons, it

threats and demonstrations of the relmust appear that the party benefited

atives of the other party to the marthereby, or someone with his knowl- riage, which compelled one to consent edge and approval, in some manner or

to a marriage, was sufficient. In the by some means constrained or forced Marks Case, in affirming a decree anthe action of the injured party. Mc- nulling a marriage, the court said that Cormick v. St. Louis (1901) 166 Mo.

it did not appear that defendant was 315, 65 S. W. 1038.

guilty of any force or duress, but the

proof did conduce to show that friends g. Payments.

or relatives of the defendant did by

threats and duress compel the plaintiff Money paid under duress cannot be recovered back where the duress was

to enter into the contract. Unless it not imposed by the payee or by his di- is implied by the statement that it did rection or consent. Brumagim v. Till- not appear that the defendant was inghast (1861) 18 Cal. 265, 79 Am. Dec. guilty of any force or duress, it did 176; Garrison v. Tillinghast (1861) 18 not affirmatively appear that she was Cal. 404; Baltimore v. Lefferman aware of the duress exerted by her (1846) 4 Gill (Md.) 425, 45 Am. Dec. relatives. 145.

In Fowler v. Fowler (1913) 131 La. 1088, 60 So. 694, where a marriage was avoided for duress exerted through threats by relatives, it does not ap

pear whether or not the other party knew of or participated in the duress.

G. J. C.

AMERICAN LIFE & ACCIDENT INSURANCE COMPANY, Appt.,

V.

ELIZABETH NIRDLINGER.

Mississippi Supreme Court (Division A) - February 13, 1917.

(113 Miss. 74, 73 So. 875.)

[ocr errors]

Insurance chronic disease construction.

1. Chronic malaria is not within the provision of a health insurance policy that all disability resulting from hernia, orchitis, venereal or chronic disease, imposes liability to a limited amount; since the word "chronic" in that connection means disease of like character with venereal.

[See note on this question beginning on page 875.] - construction of contract.

of bed or goes out of doors, in order 2. Contracts of insurance whose to try to improve his health, since such terms are plain and unambiguous are clause is to be liberally construed. to be congtrued like any other con- [See 14 R. C. L. 1318.] tracts between individuals.

- health confinement to house, [See 14 R. C. L. 925.]

4. No recovery under a health in- provision for confinement in house. surance policy requiring continuous

3. Under a clause in a health insur- confinement within the house can be ance policy requiring insured to be had if insured during his illness visconfined to his bed or to the house, or ited health resorts and when at home within the house, in order to recover, went to his store practically every day, recovery may be had if he, acting un- although when there he was compelled der the advice of a physician, gets out to lie on a couch.

[ocr errors]

APPEAL by defendant from a judgment of the Circuit Court for Lauderdale County (Venable, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on a health insurance policy. Reversed.

The facts are stated in the opinion of the court.
Mr. W. C. Sams, for appellant: Casualty Co. 28 Misc. 240, 58 N. Y.

Clause E of the contract of insur- Supp. 1090; Schneps v. Fidelity & C. ance does not provide that the insured Co. 101 N. Y. Supp. 106; Dunning v. shall be necessarily and continuously Massachusetts Mut. Acci. Asso. 99 Me. confined to his house, but “within the 390, 59 Atl. 535. house."

Messrs. Fewell & Cameron, for apScales v. Masonic Protective Asso. pellee: 70 N. H. 490, 48 Atl. 1084.

Plaintiff was entitled to full beneThere can be no recovery under the fits under the policy. policy in question,

National Life & Acci. Ins. Co. v. Cooper v. Phænix Acci. & Sick Ben. King, 102 Miss. 470, 58 So. 807; JenAsso. 141 Mich. 478, 104 N. W. 734; nings v. Brotherhood Acci. Co. 44 Hoffman v. Michigan Home & Hospital Colo. 68, 18 L.R.A.(N.S.) 109, 130 Am. Asso. 128 Mich. 323, 54 L.R.A. 746, 87 St. Rep. 109, 96 Pac. 982; Breil v. Claus N. W. 265; Bishop v. United States Groth Plattsdutschen Vereen, 84 Neb. Casualty Co. 99 App. Div. 530, 91 155, 23 L.R.A.(N.S.) 359, 120 N. W. N. Y. Supp. 176; Liston v. New York 905, 18 Ann, Cas. 1110.

« PředchozíPokračovat »