63 P. 902 (Utah 1901), Gorringe v. Read

Citation:63 P. 902, 23 Utah 120
Opinion Judge:BARTCH, C. J.
Party Name:ANNIE GORRINGE, Appellant, v. WILLIAM S. REED, Respondent
Attorney:A. J. Weber, Esq., and Thomas Maloney, Esq., for appellant. Messrs. Richards & Allison for respondent.
Judge Panel:BARTCH, C. J., delivered the opinion of the court. Baskin, J., Miner, J., concurring. Miner Baskin, J., concurs.
Case Date:January 07, 1901
Court:Supreme Court of Utah
 
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Page 902

63 P. 902 (Utah 1901)

23 Utah 120

ANNIE GORRINGE, Appellant,

v.

WILLIAM S. REED, Respondent

Supreme Court of Utah

January 7, 1901

Appeal from the Second District Court Weber County.--Hon. H. H. Rolapp, Judge.

Action in equity to set aside and cancel a deed to certain real estate and to have plaintiff adjudged the lawful owner of the same. From a judgment for defendant plaintiff appealed.

REVERSED.

A. J. Weber, Esq., and Thomas Maloney, Esq., for appellant.

Plaintiff and defendant ought not to be held to have been in pari delicto. Ency. of Law (2 Ed.), vol. 6, pp. 416, 417; 2 Pomeroy Eq. Jur., par. 914; 2 Pomeroy Eq. Jur., par. 942; Meech v. Lee, 46 N.W. 399; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419.

Upon the general subject of contracts made under duress we refer to: 2 Warville on Vendors, 864; Pom. Eq. Jur., 430-433, 451, 452; Heaton v. State Bank, 47 P. 576; Morse v. Woodworth, 29 N. E. (Mass.) 525; Hargreaves v. Koreck, 62 N.W. 1086; Heaton v. State Bank, 52 P. 876; Morrell v. Nightingale, 28 P. 1068; Thompson v. Miggley, 35 P. 290; Adams v. National Bank, 23 N.E. 7; Benedict v. Roome, 64 N.W. 193 (Mich.) ; Ency. of Law (2 Ed.), vol. 10, pp. 324, 325, 327; Adams v. Bank, 116 N.Y. 610; Grum v. Beach, 96 N.Y. 398.

Was there not imposition, oppression, duress, threats, undue influence, taking advantage of plaintiff's weakness and her fears by the Reed Brothers? Greene v. Densmore, 19 Iowa 466; Gohegan v. Leacg & Co., 24 Iowa 509; Vogue v. Glem, 41 Mich. 115.

Even as far back as the days of Coke fear of imprisonment was enough to avoid the deed. 2 Inst., 483 Co. Litt. 253b.

"As civilization has advanced, the law has tended much more strongly than it formerly did to overthrow everything which is built upon violence and fraud." Foshay v. Ferguson, 7 Hill (N.Y.) 158; Tapley v. Tapley, 10 Minn. 367; 1 Story Eq. Jur., 239; Beindorff v. Kaufman, 41 Neb. 824, 60 N.W. 101; Hargreaves v. Koreek (Neb.), 62 N.W. 1086.

To threaten a wife with the imprisonment of her husband has been held menace. McMahm v. Smith, 47 Conn. 221; s. c., 36 Am. Rep. 67; Compton v. Bunker Hill Bank, 96 Ill. 301; s. c., 36 Am. Rep. 147; Singer Mfg. Co. v. Rawson, 50 Iowa 634.

"Illegality resulting from pressure, and illegality resulting from an attempt to stifle a prosecution, do not fall within that class of illegalities which induce the court to stay its end, but are of a class in which the court has actively given its assistance in favor of the oppressed party by directing the money to be repaid." Davies v. Lindon & P. Marine Ins. Co., L. R., 8 Ch. Div. 469; 47 L. J. Ch. 511; 38 T. N. S. 478, 26 Week. Rep. 749. See note 26 Law Rep. Am. 50.

Messrs. Richards & Allison for respondent.

"Whenever an agreement appears to be illegal, immoral, or against public policy, a court of justice leaves the parties as it finds them; if the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution." Roll v. Ragent, 4 Ohio 420; Atwood v. Fish, 101 Mass. 364; Haynes v. Rudd, 102 N.Y. 372, N. E. 290; 1 Pom. Eq. Jur. (2 Ed.), sec. 401, et seq.; 2 Pom. Eq. Jur. (2 Ed.), sec. 937, et seq.; 6 Am. and Eng. Ency. of Law (2 Ed.), 412 et seq.; Banking Co. v. Lichtenstein, 10 Utah 338; Allison v. Hess, 28 Iown 338; Booker v. Wingo (S. C.), 7 S.E. 49; Atwood v. Fish, 101 Mass. 363; Thomas v. Crouise, 16 Ohio 54; Swartzer v. Gillet, 2 Pin. (Wis.) 238; Moore v. Adams (Ohio), 32 Am. Dec. 723; Harrington v. Bigelow, 11 Paige (N.Y.) 349; Haynes v. Rudd, 102 N.Y. 372; Williams v. Bailey, 35 L. J. N. S. Ch. 717; Wilcox v. Daniels, 15 R. 1. 261; Roll v. Ragnet, 4 Ohio 420; s. c., 22 Am. Dec. 759; Shattuck v. Watson, 53 Ark. 147, 13 S.W. 517; 2 Story on Cont., sec. 486; 2 Parsons on Cont., 746; 2 Addison on Cont., 715-724.

So when the contract is executed and money has been paid on property transferred in accordance therewith, the aid of the law can not be invoked for its recovery; and a deed of conveyance of land, made in consideration of a composition of felony, can not be avoided by the grantor. Worcester v. Eaton, 11 Mass. 369; Taylor v. Blake, 11 Minn 255; Dixon v. Olmstead, 9 Vt. 310; s. c., 31 Am. Dec. 629.

While it may be admitted that the decisions of the several states are not altogether harmonious on the subject of what threats constitute duress nevertheless it may readily be ascertained that a great number of courts of the highest respectability, hold that in just such cases as the one at bar there was no duress. Indeed they hold that:

"It is those contracts only which are made under fear of unlawful imprisonment, and not those made under fear of imprisonment which would be legally justifiable, that can be avoided for duress." Weber v. Barrett, 125 N.Y. 18; 25 N.E. 1070; Knapp v. Hyde, 60 Barb. 80; Lester v. Manufacturing Co., 1 Hun. 288; Sanford v. Sornborger, 26 Neb. 295; 41 N.W. 1105; Mundy v. Whittemore, 15 Neb. 647; 19 N.W. 696; Bodine v. Morgan, 37 N.J. Eq. 426; Clark v. Trumbull, 47 N. J. L. 267; Thorn v. Pinkham, 84 Me. 101; Hilborn v. Buckman, 78 Me. 485; 57 Am. Rep. 816; Harmon v. Harmon, 61 Me. 227; Am. Rep. 556; Eddy v. Herrin, 17 Me. 338; Avery v. Layton, 118 Pa. 604; Fulton v. Hood, 34 Pa. St. 365; 75 Am. Dec. 664; Wilcox v. Howland, 23 Pick. 167; Compton v. Bank, 96 Ill. 301; Colglazier v. Salem, 61 Ind. 445; Dimmitt v. Robins, 74 T. 441; Landa v. Obert, 45 Tex. 547; Neely v. Greenough, 25 N.H. 332; Alexander v. Pierce, 10 N.H. 494; Shattuck v. Watson, 53 Ark. 147; 138 S.W. 517; Davis v. Luster, 64 Mo. 43; Claflin v. McDonough, 33 Mo. 412; 84 Am. Dec. 54; Waller v. Cralle, 8 B. Mon. 11; Hatter v. Greenlee, 1 Porter 222; Russell v. Durham,--Ky.--; 29 S.W. 635; Plant v. Gunn, 2 Woods 372; Carter v. Couch, 84 F. 735; 1 Devlin on Deeds (2 Ed.), secs. 81, 82; 6 Am. and Eng. Ency. of Law, p. 69; 10 Am. and Eng. Ency. of Law (2 Ed.), pp. 321-327; Story on Cont., 400.

The record shows that the house and lot deeded to the defendant was but a fair return in value for the merchandise stolen; that it was proper for the plaintiff to make the conveyance for that purpose and that it would be manifestly unjust and inequitable to decree the conveyance null and void. 6 Am. and Eng. Ency. of Law (2 Ed.), pp. 711, 716; Clark v. Turnbull, 47 N. J. L. 267; School Dist. v. Collins, 6 Dak. 145, 41 N.W. 466-471; Portner v. Kirschner, 169 Pa. St. 472, 47 Am. St. Rep. 925; Whitenack v. Ten Eyck, 3 N.J. Eq. 249; Brewery Co. v. Carry (Md.), 24 A. 152; Wolf v. Froxell, 94 Mich. 573; Miller v. Lumber Co., 98 Mich. 163; Papple v. Day, 123 Mass. 520; Abbott v. Fisher, 124 Mass. 414; Cohoes v. Cropsey, 55 N.Y. 685; Ford v. Crotty, 52 Ill. 313; Taylor v. Cottrell, 16 Ill. 93; Von Wandich v. Klaus, 46 Conn. 433; Walbridge v. Arnold, 21 Conn. 424.

BARTCH, C. J., delivered the opinion of the court. Baskin, J., Miner, J., concurring.

OPINION

BARTCH, C. J.

[23 Utah 125] STATEMENT OF FACTS.

This is an action in equity to set aside and cancel a deed to certain real estate situate in Ogden City, and to have the plaintiff adjudged to be the lawful owner of the premises. In the complaint it was alleged, among other things, that, on October 21, 1899, the plaintiff executed and delivered to the defendant [23 Utah 126] the deed in question; that she was the owner of the property conveyed, the same being her homestead of the value of $ 1,200; that the deed purports to have been executed in consideration of the payment of $ 800 by defendant to plaintiff, but that the conveyance was wholly without consideration, and was executed by her while she was under...

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