Colclough v. Bank of Penfield

• Decision Date: 19 June 1920
• Docket Number: 1582.
• Citation: 103 S.E. 489,150 Ga. 316
• Parties: COLCLOUGH v. BANK OF PENFIELD ET AL.
• Court: Georgia Supreme Court

103 S.E. 489

150 Ga. 316

COLCLOUGH v. BANK OF PENFIELD ET AL.

No. 1582.

Supreme Court of Georgia

June 19, 1920

Syllabus by the Court.

If the fears or affections of a father for his son are wrought upon by threats of a criminal prosecution of the son, and the father is thereby induced and coerced, against his will, to execute his promissory note and a security deed to land in order to prevent such threatened prosecution, there is duress as to the father, even though the threatened prosecution be for a crime which has been committed by the son; and such instruments are void, and may be canceled in a proper proceeding at the instance of the maker. In such a case the rule does not apply that, if parties voluntarily enter into a contract to suppress a criminal prosecution, they are in pari delicto, and neither a court of law nor equity will interpose to give relief to either party. Civ. Code 1910, §§ 4116, 4255; Jordan v. Beecher, 143 Ga. 143, 84 S.E. 549 L.R.A. 1915D, 1122; Hodges v. Citizens' Bank of Sylvania, 146 Ga. 624, 92 S.E. 49; Williamson-Halsell-Frazier Co. v. Ackerman, 77 Kan 502, 94 P. 807, 20 L.R.A. (N. S.) 484.

In an action against a bank and another for cancellation of deeds setting aside a judgment, injunction, and other relief, the petition, among other allegations, set forth in substance that the petitioner was induced and coerced, contrary to his will, by such duress as referred to in the preceding note brought to bear upon him by the president of the defendant bank, to execute to it his promissory note and a security deed to land, in order to secure the payment by petitioner of an alleged defalcation of funds of the bank by petitioner's son; that upon failure to pay the note at maturity suit was brought thereon by the bank, and judgment rendered against petitioner by default, he being then deterred, by such duress again brought to bear upon him by the bank's president, from defending the suit; that the land conveyed by the security deed to the bank was afterwards sold at sheriff's sale under an execution issued upon such judgment, and purchased by the bank for a specified inconsiderable sum; that such duress was again brought to bear upon petitioner for the purpose of preventing him from taking any steps to stop such sale; and that he was deterred by such duress from in any way objecting thereto. On an interlocutory hearing evidence was submitted by petitioner tending to support such allegations. In refusing to grant an ad interim injunction the judge's order states "Under the allegations of the petition, the evidence and the law applicable in said case, the plaintiff would be estopped from going behind the judgment that was rendered in said case, which judgment is described in the pleadings. Under section 5965 of the Civil Code of 1910, and the authorities under said section in Park's Annotated Code, said judgment would debar the plaintiff from setting up any defense, which could have been made to the suit on said note,...