Gorringe v. Read

• Citation: 63 P. 902,23 Utah 120
• Court: Supreme Court of Utah
• Decision Date: 07 January 1901
• Parties: ANNIE GORRINGE, Appellant, v. WILLIAM S. REED, Respondent

63 P. 902

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.

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 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 duress, which was caused by threats made by the defendant and his brother, J. G. Reed acting for him, to imprison plaintiff's husband in the penitentiary, and plaintiff believing that they could and would cause her husband to be prosecuted and imprisoned on the charge of grand larceny; that having been so put in fear by defendant's threats, and for no other reason whatever, plaintiff executed and delivered the deed; and that such threats were made to her by defendant and his brother, with the intention and for the purpose of cheating and defrauding plaintiff out of said realty.

It appears from the testimony that, at the time of the transaction complained of, the defendant and J. G. Reed belonged to the firm of Reed Brothers of Ogden, who, it seems, were conducting a harness store, and that Joseph Gorringe, the husband of the plaintiff had been in their employ for about fifteen years. He commenced purloining their goods early in the spring of 1899, and was arrested therefor, on October 27, of the same year. The largest amount of goods he had ever stolen at any one time was worth $ 2. He admitted the thefts, but what the exact value of all the stolen property was does not appear. There is evidence to the effect that after the arrest the goods were returned. The witness Joseph Gorringe, on this point testified: "I returned to them more than I ever took and paid them for more than I ever took not counting any property. They got back everything and more."

The evidence does not show that the plaintiff was aware of the pilfering while they were being made, but she was informed of them before she executed the deed. She was in front of defendant's shop when the arrest was made, and her husband then told her he had done wrong. She then according to her testimony, met the defendant, and, crying, asked him to help her husband. He said he would leave it to J. G. Reed, his brother. She then wanted to see her husband at the jail, before going home, was taken there, had a conversation with him, and was then taken home by J. G. Reed. As to what was said on the way, the plaintiff testified: "On the way home I was crying and pleading with him and asking him to let him off on account of the children, and he says: 'Mrs. Gorringe, this is...