Bray v. Thatcher

• Decision Date: 31 January 1859
• Citation: 28 Mo. 129
• Parties: BRAY, Respondent, v. THATCHER et al., Appellants.
• Court: Missouri Supreme Court

28 Mo. 129

BRAY, Respondent,

v.THATCHER et al., Appellants.

Supreme Court of Missouri.

January Term, 1859.

1. Where a plaintiff seeks relief other than the recovery of money only or of specific real or personal property--as where the annulment of deeds is sought on the ground that they were obtained by duress and violence-- the cause must be tried by the court and not by the jury.

2. A. and B. combining, by threats of violence against C., extorted from the latter the transfer to themselves of a certain tract of land owned by the latter--one portion thereof being conveyed to A., and the other to B.--A. conveying his portion to D., who took with notice. C. instituted an action against A., B. and D. to obtain an annulment of said deeds. Held, that the petition was not multifarious.

3. Courts of equity will set aside deeds obtained by duress.

Appeal from Mercer Circuit Court.

This was an action by Hardin P. Bray against Daniel N. Thatcher, Lilburn P. Smith and Azariah L. Hupp. The plaintiff set forth that on the 5th of January, 1852, he owned in fee simple a specified tract of land; that on said day “one Daniel N. Thatcher and one Lilburn P. Smith, together with divers other persons, riotously assembled themselves together for the purpose of compelling plaintiff to make to said Thatcher and Smith a deed to the above described tract of land, and by divers threats and menacings toward said plaintiff, of and by said parties when so assembled, of great personal injury to the person of said plaintiff and of his life; that by such threats and menacings, with force and violence toward plaintiff, the said plaintiff, through [fear] of his life or of some great bodily injury and personal indignity and violence to his person, did, although against his will and without his consent, sign and acknowledge deeds”--one to Thatcher for one-half of the above mentioned tract, and the other to said Smith for the other half-- “for the nominal sum of fifty-two dollars and fifty cents paid by each of said parties; which said sum so paid was fixed and set by said parties, so threatening and menacing plaintiff as aforesaid, of their own arbitrary will and without the consent of plaintiff; all of which plaintiff was compelled to agree to and accept against his will, through fear of his life and great bodily injury to his person;” that afterwards, on the 23d of February, 1853, the said Thatcher conveyed the tract of land conveyed to him to one Azariah L. Hupp; that said Hupp well knew that the deed from plaintiff had been procured by force and violence and through fear. The plaintiff prays the court to set aside the deeds of plaintiff to Thatcher and Smith, and that from Thatcher to Hupp, and for a decree of title in himself. The plaintiff brought into court the sum of one hundred and five dollars, so paid to him by Thatcher and Smith, and offered to refund the same.

The defendants demurred to this petition on the ground of multifariousness. The demurrer was overruled. The cause was submitted under instructions to a jury, who found for the plaintiff.

Davis and Tindall, for appellants.

I. The defendants were improperly joined together in the action, and the court ought to have sustained the demurrer of defendants or afterwards have sustained the motion in arrest of judgment. There is no joint or common interest either in the lands or the possession of the lands, which were the subject of the suit. (See Stancup v. Garner, 26 Mo. 72; Doan v. Holly & Walker, Id. 186; 25 Mo. 359; 3 Barb. Ch. 434; 17 Mo. 228.) A new trial should have been granted on motion of defendants because of giving wrong instructions by the court. A deed which has been acknowledged and recorded will not be avoided upon a plea of duress. (3 Bac. Ab. 255, tit. Duress; 1 Story on Contr. 404.) A fear of injury to a man's person, not amounting to loss of life or limb, or a mayhem, would be insufficient to invalidate his deed made under such fear. (See 3 Bacon's Abridg. Duress, p. 252; 1 Black. Comm. 131; Shepherd's Touchstone, 61.) The latter clause of the first instruction given for plaintiff misled the jury as to the law. The verdict, being general, is not sufficient; it should be special and responsive to the allegations in the petition. By what authority is a judgment entered against Hupp for the land alleged to be conveyed to Smith? (19 Mo. 554.) The court below mistook the law in refusing to compel the plaintiff to elect which of the causes of action he would proceed on first, and to amend his petition. (See Moony v. Kennett, 19 Mo. 554.)

Ryland and E. B. Ewing, (attorney general,) for respondents.

I. The grounds raised by demurrer cannot now be raised here, because the defendants answered and the demurrer must be considered as withdrawn. The court below properly overruled the defendant's motion to elect on which of his causes of action he would proceed, this not being such a case in which such motion can prevail. The instructions for plaintiff were proper, and were in accordance with the law and the facts in proof. There is no multifariousness in the petition, and the issue being found...