Lyon v. Waldo

• Decision Date: 24 April 1877
• Citation: 36 Mich. 345
• Court: Michigan Supreme Court
• Parties: Maggie E. Lyon v. Jerome B. Waldo and others

36 Mich. 345

Maggie E. Lyon v. Jerome B. Waldo and others

Supreme Court of Michigan

April 24, 1877

Heard January 11, 1877 [Syllabus Material] [Syllabus Material]

Appeal in Chancery from Ingham Circuit.

Decree reversed, and the bill dismissed.

D & W. Johnson and H. B. Carpenter, for complainant, as to the claim that the bond and mortgage were void because executed under duress, argued that it clearly appears from the evidence that defendant was under a legal arrest, and was guilty of the crime charged in the complaint, and that legal imprisonment by order of law is not duress by imprisonment.--Bouvier Law Dic,, 513; 1 Pars. on Cont., 319; Rood v. Winslow, 2 Doug. 68; Peck v. McAlpine, 3 Caines 166; Watkins v. Baird, 6 Mass. 506; 2 Kent Com., 452; Matter of William Wells, 18 How. 307; Walbridge v. Arnold, 21 Conn. 424.

A deed executed under duress is not void, but only voidable, and it may be ratified and affirmed by the party upon whom the duress was practiced.--Herman on Estoppel, 244; 1 Parsons on Cont., 322; Bacon Ab., Duress "C."

We concede that securities given to compromise a felony, where the public alone are interested in the prosecution, could not be enforced by process of law; but the legislature, in limiting the right of prosecution to the injured party, have clearly indicated that they regarded injuries of this kind more of a private than a public wrong.--See Briggs v. Withey, 24 Mich. 136.

We submit that it would be against public policy to deprive the injured party of the right to settle cases of this kind, provided no undue advantage is taken against the wrong-doer. And the facts in this case do not show any oppression or any undue influence used by the complainant or her agents. Ample time was given for reflection and for the procurement of counsel. The husband had been living in adultery. It was open and notorious. The amount secured for the support of the complainant was not unreasonable, in view of the pecuniary circumstances of the defendant, and we add that this settlement was made with the consent of the prosecuting attorney. There can be no pretense that the prosecuting attorney was influenced by any pecuniary or improper considerations.

We think it is clearly inferable from the testimony in the case that the complainant, at the time of this settlement, had made up her mind to separate permanently from her husband, and when that separation was pronounced by the court in the decree for a divorce, in consideration of the amount received in this settlement, no alimony was asked for.

J. C. Shields, and M. V. Montgomery, for defendants.

The bond and mortgage were obtained by duress and coercion practiced upon defendant. When a person makes a contract under duress or terror the courts will not enforce it.--1 Story Eq., § 239. Some authorities hold that if there is the slightest ground to suspect imposition, the contract will be set aside.--Wilkinson v. Stafford, 1 Ves. Jr., 43; 1 Story Eq., § 239. The duress may consist of either imprisonment or threats of imprisonment.--Taylor v. Jaques, 106 Mass. 291. If a person is arrested under a legal warrant and by a proper officer, yet, if the object is to extort money or enforce the settlement of a civil claim, it is a false imprisonment by all who have directly or indirectly procured the same, and any conveyance made under the influence of such imprisonment is void.--Hackett v. king, 6 Allen 58; Richards v. Vanderpool, 1 Daly 71; Brooks v. Berrifield, 20 Ind. 97; Bush v. Brown, 49 Ind. 573; Seiber v. Price, 26 Mich. 518; Gallaway v. Burr, 32 Mich. 332.

The securities are void because given in view of and for the purpose of compounding and compromising a felony. No action can be maintained to enforce performance of any contract the consideration of which, in whole or in part, was the compounding of a crime or the stifling of a criminal prosecution.--Comp. L., § 7672; Bigelow v. Woodward, 15 Gray 560; Clark v. Pomeroy, 4 Allen 534; Taylor v. Jaques, 106 Mass. 291; Fellows v. Van Heyring, 23 How. Pr., 230; Bettinger v. Bridenbecker, 63 Barb. 295; Conderman v. Hicks, 3 Lans. 108; Loomis v. Cline, 3 Barb. 453; Fay v. Oatley, 6 Wis. 45; Snyder v. Willey, 24 Mich. 136; 33 Mich. 483, 495; 16 Mass. 91; 18 Pick. 440; 5 Vt. 42; 9 Vt. 23; 5 N. H., 553; 2 South., N. J. 578; 13 Wend. 592; 6 Dana 338; 11 Vt. 252.

That the purpose of this prosecution was to compel the giving of this mortgage, and that the whole or a substantial part of its consideration was the adjustment of this charge, is hardly attempted to be concealed or disputed.

If so, it is idle to talk about the security being voidable, and liable to be made obligatory by subsequent ratification. In the first place, it was absolutely void.

An illegal, unlawful consideration cannot be rendered a legal and lawful one by subsequent ratification.

If A murder a man at the instigation of B, for which B gives him his note for $ 1,000, can it be said that because B has paid the annual interest on his note for two or three years that it thereby becomes a valid instrument?

This question is not one of how much defendant ought to have paid the complainant.

The question is, was any portion of the consideration for which this mortgage was given the "compounding or concealment of a felony." If so, the security is absolutely void, and cannot be galvanized into life by subsequent acquiescence.

If A owe B $ 1000 cash, and A declines to secure it, and while matters are thus situated B discovers that A has committed murder; he thereupon goes to A and proposes to conceal the crime and cancel the debt for a mortgage of $ 2000, which A gives; such instrument is void and incapable of ratification, and no part of it can be enforced.

Graves, J. Campbell, J., concurred. Cooley, Ch. J. concurring in part and dissenting in part. Marston, J. concurred in the opinion of the Chief Justice.

OPINION

Graves, J.:

For some years before August 26, 1871, and thereafter until June 27, 1872, complainant was the wife of the defendant Jerome B. Waldo, and as husband and wife they lived together at Williamston, in Ingham county, up to the date first mentioned. At or just previous to that time she became satisfied that he was guilty of criminal intercourse with a woman living a few rods distant, and she hence withdrew from him at that date with the fixed purpose of not living or cohabiting with him longer, and which purpose she has kept; and with the further purpose of obtaining, as the bill states, a separate maintenance.

Desiring legal advice and assistance, she came to this city and consulted with and employed Mr. Wiley, a lawyer then in practice here. She seems to have placed her interests entirely in his hands, and to have empowered him, so far as she was capable, to take such steps as he in his discretion might deem best, and she seems to have fully acquiesced in his doings as they occurred, and to have sanctioned the whole as though done by herself in person. Under his direction, and on her complaint therefor, a warrant was issued by a magistrate against Waldo, then her husband, for the crime of adultery, and given to an officer for service. This was on Saturday, the 26th of August, and the officer, following Wiley's directions, deferred service until the next day, Sunday, in the evening, when, and about half-past ten, Waldo was arrested at the house of the woman before mentioned, under circumstances nearly or quite conclusive that he was then at least criminal. On the succeeding Tuesday, being the 29th of August, he appeared before the magistrate under arrest upon the warrant. The prosecuting attorney having consented that Wiley, who had made a request therefor, should have control of the prosecution, the examination was by consent adjourned until the 4th of September, at four o'clock in the afternoon. On the forenoon of Monday, the 28th of August, and being the day succeeding the arrest, negotiations were begun between Wiley and Waldo on the basis of a pecuniary benefit from Waldo to complainant on the one hand, and a stoppage of the prosecution on the other, and during the interval between the amicable adjournment of the examination on the 29th of August and the 4th of September, to which the adjournment extended, the negotiations terminated in an agreement. Waldo paid Wiley one hundred dollars in cash, gave his note for four hundred dollars more, which he paid subsequently, and paid as costs of the criminal proceedings twenty-six dollars and forty cents. He also gave Wiley, in trust for complainant, his bond, conditioned for the payment for her benefit of two hundred dollars every six months during her natural life, and with a stipulation to pay the round sum of five thousand dollars and all arrears of interest, as a fixed gross amount in case of default on any half-yearly payment, and to secure performance of this bond Waldo, together with his brother James, and wife, gave a mortgage on real estate. On the other hand, the criminal prosecution was stopped by Wiley's direction, and was not resumed. Neither was any other instituted, and the offense was treated as a matter settled and barred.

During the entire transaction Wiley was allowed to guide, control and use the prosecution in the name of the people, without interference, to obtain the money and securities before mentioned, and they were given and taken as satisfaction for the offense imputed, the costs and charges of the magistrate and arresting officer, the individual charge made by Wiley, and to secure the stifling of the pending criminal prosecution.

Within two or three days, and on the fifth of September, complainant filed her bill against Waldo for a divorce from the bonds of matrimony, and the specific charge in the bill was an act of adultery...