Royal v. Goss

• Decision Date: 19 December 1907
• Citation: 154 Ala. 117,45 So. 231
• Parties: ROYAL v. GOSS ET AL.
• Court: Alabama Supreme Court

45 So. 231

154 Ala. 117

ROYAL v. GOSS ET AL.

Supreme Court of Alabama

December 19, 1907

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Ejectment by Sarah E. Royal against Peter F. Goss and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff claimed title through a deed of gift executed by C Royal on the 6th day of May, 1882, and proof of prior possession. The defendants claim through a deed with general covenants of warranty executed by plaintiff and her husband C. Royal, to the defendants Robinson & Jones on the 11th day of April, 1894. The recited consideration of this deed was $4,000 in cash paid to the plaintiffs and the assumption of a mortgage indebtedness of $4,000 owing by plaintiffs to the Prudential Life & Trust Company. This deed was duly executed acknowledged, and recorded. Plaintiffs then introduced testimony, the tendency of which was to show that plaintiff was coerced by threats of her husband into executing the deed to Robinson & Jones, and also that her husband was insane at the time of the execution of the deed, and that Jones had notice of the duress. The testimony as to the duress tended to show that Mrs. Royal was unwilling to sign the deed; that her husband was in a bad way and very harsh to her; that she was sent for to come into the room three times before she came; that her children were sick at the time; and that her husband insisted that she sign the deed, and accompanied the insistence with threats about what he would do if she refused to sign. The testimony further tended to show that the whole of the $4,000 cash consideration was paid by Robinson & Jones by a check payable to the order of the plaintiff, and that the plaintiff's husband coerced her to indorse the check to him, and that he collected the proceeds. It was shown without dispute that the notary before whom the acknowledgments were taken was present at the residence of plaintiff and her husband when the deed was executed and that he fully interrogated the plaintiff and her husband in reference to their voluntary execution of the deed. The testimony for the defendants tended to show that they were without notice of the duress practiced on the wife by the husband, and that part of the recited consideration was paid in cash to plaintiff and the balance by check payable to order of plaintiff. It was undisputed that the defendants Robinson & Jones, several months after the delivery of the deed, paid over the mortgage indebtedness assumed by them amounting to $4,000, and procured a cancellation of the mortgage and notes, which mortgage and notes, duly executed and acknowledged, were introduced in evidence and showed on their face that they were the obligations of the plaintiff alone. It was without conflict shown that at the time of the payment of the mortgage by defendants that no complaint of any kind had been received by plaintiff and that they had no information of any intention on her part to disaffirm the transaction. The testimony further tended to show that the first step towards any disaffirmance of the transaction was by a bill filed by plaintiff something more than four years after the delivery of the deed, and the undisputed testimony further showed that the plaintiff had not, prior to the institution of this suit or at any other time, tendered to the defendants Robinson & Jones any part of the consideration paid for the deed, and that she had not tendered the amount paid by them in satisfaction of the mortgage which they assumed on receipt of the deed. At the conclusion of the evidence the court on request gave the general affirmative charge.

B. M. Allen and Stallings & Nesmith, for appellant.

Robert N. Bell and Tillman, Grubb, Bradley & Morrow, for appellees.

ANDERSON J.

"In general, a contract made under duress is only voidable, and not void; hence the one on whom the duress has been imposed may either repudiate or affirm it. There are cases, however in which the severity of the duress is such that the person on whom it is imposed is converted into a mere automaton for the purpose of obeying the command and registering the will of the person who imposes it. In such cases the formal contracting is simply null and of no effect." 10 Am. & Eng. Ency. Law (2d Ed.) 334. The duress attempted to be set up by the plaintiff in the case at bar, if it existed, was of that character that would render the deed voidable,...