Singleterry v. Varnum

• Decision Date: 17 May 1917
• Docket Number: 4 Div. 664
• Citation: 75 So. 890,200 Ala. 142
• Parties: SINGLETERRY et al. v. VARNUM.
• Court: Alabama Supreme Court

75 So. 890

200 Ala. 142

SINGLETERRY et al. v. VARNUM.

4 Div. 664

Supreme Court of Alabama

May 17, 1917

Appeal from Chancery Court, Houston County; O.S. Lewis, Chancellor.

Bill by J.W. Varnum against W.T. Singleterry and others. Decree for plaintiff, and defendants appeal. Affirmed.

T.M Espy, of Dothan, for appellants.

Lee &amp Tompkins, of Dothan, for appellee.

McCLELLAN J.

The appellee filed this bill against the appellants to effect the cancellation of an instrument of mortgage upon the ground that its execution by the appellee was obtained by duress. The chancellor granted the relief sought. The appeal presents for review two questions: (a) Whether the whole evidence justified the conclusion that the execution of the paper was the product of duress; and (b) if so, whether the appellee could be awarded the relief desired if it should be found from the evidence that the appellants upon the execution of the instrument sought to be canceled surrendered to the appellee a mortgage which the appellee had theretofore executed and delivered to the appellants, and that the appellee did not or had not restored to the appellants the paper surrendered to appellee as stated.

A careful review of the evidence convinces this court, as it did the chancellor, that the appellee's signature of the instrument sought to be canceled was not the result of the exercise of his free will, but, on the contrary, was the result of duress imposed upon him. The surrounding circumstances, together with the facts and acts fully proven abundantly sustain that conclusion. Whiddon took out a warrant for appellee charging him with disposing of property on which another had a lien. He delivered the warrant of arrest to the sheriff, and hired an automobile to convey him and the sheriff to appellee's residence, ten miles from Dothan. The sheriff accosted appellee at his barn lot after nightfall, and told him that he had a warrant for him stating of what offense he was accused, and that the prosecutor, Whiddon, was at the car near by. The conclusion is unescapable that Whiddon's purpose in having the warrant issued and in going to appellee's dwelling was to promote and to effect the adjustment or security of the debt appellee owed him. Consistent with this purpose the appellee was accorded a choice between then and there arranging his indebtedness to Whiddon and accompany the sheriff and Whiddon to Dothan, ten miles away, where he would be permitted to make an appearance bond. His wife was soon to be confined, and he was unwilling to leave her in that condition. The appellee signed and delivered the paper in question to Whiddon. He was not taken to Dothan. He was not required to make an appearance bond. The prosecution on account of which the warrant was issued was abandoned; this, according to the clear effect of the evidence, because it had served the purpose of its institution. The law applicable to this feature of the cause is announced in Hartford Ins. Co. v. Kirkpatrick, 111 Ala. 456, 464-467, 20 So. 651. Duress per minas, as therein defined, was the character and quality of compulsion imposed upon this appellee, which, being shown as it is, required the cancellation of the instrument the execution of which was produced...