Burton v. Mcmillan

• Decision Date: 07 January 1907
• Parties: BURTON et ux. v. McMILLAN.
• Court: Florida Supreme Court

42 So. 849

52 Fla. 469

BURTON et ux. v. McMILLAN.

Florida Supreme Court, Division B.

January 7, 1907

Appeal from Circuit Court, Escambia County; Francis B. Carter Judge.

Bill by B. H. Burton and Mary A. Burton against A. M. McMillan. Decree for defendant, and plaintiffs appeal. Reversed and remanded.

Syllabus by the Court

SYLLABUS

The maxim, 'In pari delicto, melior est conditio defendantis,' does not apply to a case where a married woman sues to set aside a deed of her separate property, made by her under express or implied threats of the prosecution of her husband for the crime of embezzlement, and to save him from such prosecution, whether the threatened prosecution was lawful or unlawful, particularly so when she was sick and nervous, and when she does not appear to have had abundant opportunity for consideration and consultation with disinterested advisers.

COUNSEL

Blount & Blount, for appellants.

Maxwell & Reeves and Avery & Avery, for appellee.

OPINION

HOCKER J.

On the 8th of July, 1905, Beverly H. Burton and Mary A. Burton, his wife, filed a bill against A. M. McMillan in the circuit court of Escambia county, containing, with an amendment thereto, the following allegations:

'(1) That the said Beverly H. Burton is, and has been for years the husband of Mary A. Burton, and that they and the said A. M. McMillan are citizens and residents of Escambia county, Florida.

'(2) That prior to May 8, A. D. 1905, the said Mary A. Burton was the owner in fee simple of the real estate in the city of Pensacola described in Exhibit A, hereto attached and prayed to be made a part hereof, and that on said May 8th she and the said Beverly H. Burton and their family of children were occupying the same as a homestead.

'(3) That also at the said time the said Beverly H. Burton was the owner of certain furniture and other personal property which then was, and still is, in the house described in Exhibit A, which personal property is fully set forth and described in Exhibit B, hereto attached and made a part hereof. The said Exhibit B also describes certain personal property belonging to May Burton, the daughter of the complainants herein; but the property so belonging to her is distinguished in said exhibit from the property belonging to the complainant Beverly H. Burton by having the description therein underscored.

'(4) That for many years prior to said May 8, A. D. 1905, the said Beverly H. Burton was the deputy clerk of the circuit court of Escambia county, Florida, having been appointed to such position by the defendant, A. M. McMillan; that in the course of the conduct of said business it became the duty of the said complainant to handle vouchers drawn upon the public funds of said Escambia county, and just prior to said May 8th the said A. M. McMillan arrived at the conclusion that certain of the moneys belonging to said county had been embezzled, or made away with, or wrongfully obtained, by some person in the office of the said A. M. McMillan, clerk of the said circuit court, and the said defendant accused the said complainant of being such person committing said wrong.

'(5) That the said complainant was naturally much disturbed by the making of said charge, and by the stigma that would be cast upon himself and his family if a criminal prosecution should be instituted upon the idea that he was the person guilty of the embezzlement or diversion aforesaid, and was desirous of avoiding the said prosecution. The said defendant was also desirous of raising money with which to pay the amount of the deficit in the said funds, and the said McMillan, stating to the said complainant Beverly H. Burton that he and the State Auditor had been schoolmates, promised the said complainant that if he would cause his wife to deed to him the real estate hereinbefore mentioned, and would himself convey to him the personal property hereinbefore mentioned, and would procure his daughter May Burton to also convey the personal property described in Exhibit B belonging to her, he, the said McMillan, would so arrange that no criminal prosecution should be instituted against the said complainant, and contracted with the complainant that no such prosecution should occur.

'(6) That, relying upon the said promise of the said defendant and solely upon the consideration thereof, the said complainant procured that his said wife should be willing to make a conveyance of the said property, and that his said daughter should be willing to make a bill of sale of her said property, and thereupon the complainants executed and delivered, in pursuance of the said agreement between the defendant and the said Beverly H. Burton, complainant, a deed to the said property, a copy of which deed is fully and accurately set forth in Exhibit A heretofore mentioned, and that the said complainant and his said wife, and his said daughter also, upon the said consideration, and relying upon the said contract, executed and delivered to the said defendant the bill of sale for the property mentioned therein, a copy of said bill of sale being Exhibit B hereto attached, and that immediately upon the execution and delivery of the said instruments to the defendant he caused the same to be recorded in the proper books of record in Escambia county.

'(7) That in violation of the said contract and of his said promise, after the defendant had received the said deed and the said bill of sale, he did not procure that there should be no criminal prosecution against the said complainant Beverly H. Burton for the said alleged crime; but, upon the contrary, he, the said defendant, has himself instituted a prosecution before J. R. Landrum, justice of the peace of the Second district of Escambia county, Florida, for the said crime, and has caused the said complainant to be arrested and brought before the said justice of the peace, and to furnish bond for his appearance for trial upon said charge before the criminal court of record of the said Escambia county.

'(8) That the real property hereinbefore mentioned was the homestead of the said Beverly H. Burton and his said wife and family, and not subject to exemption (?) against the complainant Beverly H. Burton, and that the said complainant was not possessed of more than a thousand dollars of personal property in the state of Florida, and therefore that the said personal property conveyed by him as aforesaid to defendant was exempt from execution against him; the complainant alleging that it was of a value much less than one thousand dollars.

'(9) That complainants are advised and believe, and therefore aver, that since the sole consideration upon which the said conveyance and the said bill of sale were executed was the consideration aforesaid, and since the said consideration has failed, that they are entitled to have the said conveyance and the said bill of sale canceled and annulled, and have a reconveyance of the said property by the said defendant.

'(10) That the complainant Mary A. Burton only became aware of the charges made by the defendant that her said husband had embezzled the funds of the said county on the day before the making of the conveyance and the bill of sale aforesaid, by the statement of her husband that such charge had been made, and upon the same day the defendant came to the house of complainants and remained for a very long time, persuading and influencing him and her to make the said conveyance and bill of sale, promising, as aforesaid, that if they should be made he would see that no prosecution would be brought against the complainant Beverly H. Burton; that the said complainant was loth to make the said instruments, because the effect of transferring the property therein mentioned to the defendant would be to leave her and her children (of which she has and then had four) without a home or furniture, and penniless, but she has been sick with a nervous disease for many years, and her nerves were so affected, and her mind so weakened by the shock of the communication to her, and the threatened exposure of her said husband and the consequent imprisonment of him in the penitentiary, that she yielded and consented to execute the said instruments, and did so; that the time elapsing between her first knowledge of the charge against her said husband and her execution of the said papers was only the time between the late morning of a Sunday and the early morning of the next day, and that during this time the defendant had two interviews with her and prevailed upon her to execute the said papers, and that, finally, when she did so, she was so weak and unstrung that she was compelled to get up from a sickbed to execute them and that but for her said nervous and shocked condition, and the influence of the defendant and his promise aforesaid, she would not have executed the same; and that complainants are advised, believe, and aver that the said execution, made under the circumstances aforesaid, was under duress, not binding upon the complainants, and should be set aside by a court of equity.

'To the end, therefore, that the defendant may, to the best and utmost of his rememberance, knowledge, information, and belief, but not under oath, his oath being hereby expressly waived, full, true, and perfect answer make to the premises, and that this honorable court may decree that the said conveyance and the said bill of sale to the defendant may be canceled and annulled, and that the said defendant shall reconvey the same to the complainants;

'And that the complainants shall have such other and further relief as in the premises unto this court shall seem meet and fit----

'Complainants pray process of subpoena according to law and the usual course of this court, directed to the defendant,...