Smithwick v. Whitley

• Decision Date: 20 April 1910
• Parties: SMITHWICK v. WHITLEY
• Court: North Carolina Supreme Court

67 S.E. 913

152 N.C. 369

SMITHWICK

v.WHITLEY

Supreme Court of North Carolina.

April 20, 1910.

1. Contracts (§ 95^*)—"Duress."

Duress exists where one, by the unlawful acts of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will, and is of the person, when manifested by im prisonment or threats, and of goods when one is compelled to yield to illegal exactions to obtain possession of his property.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 431; Dec. Dig. § 95.*

For other definitions, see Words and Phrases, vol. 3, pp. 2268-2278; vol. 8, p. 7645.]

2. Payment (§ 87*) — Recovery op Money

Paid by Duress.

Where one goes into possession of land under a contract for its sale, money paid by him in excess of the contract price to secure the execution of the deed which the vendor refused to make, declaring that the deal had not been consummated, is not money paid under duress, but a voluntary payment, since the purchaser should have stood on his legal rights.

[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 283, 284; Dec. Dig. § 87.*]

Appeal from Superior Court, Beaufort County; Ward, Judge.

Action by J. B. Smithwick against W. H. Whitley. From a judgment of nonsuit, plain tiff appeals. No error.

See, also, 67 S. E. 914.

The facts, as stated in plaintiff's brief, are as follows: On December 3, 1900, plaintiff made a contract with defendants to purchase a piece of land containing 13.82 acres for $483.72, and to give in payment 10 notes of $46.99 each, one to be paid annually, secured by mortgage on land, and the balance in cash. The plaintiff alleges and proves that said notes and mortgage were delivered to defendant and the bargain consummated at that time (the mortgage and notes being executed about a month thereafter and delivered to defendant and the deed bearing date December 31, 1900, with acknowledgment of grantor on January 15, 1901, being left with defendant to 'be registered). The plaintiff went into possession of the land and began clearing it. Defendant denies that deal was consummated, or that the notes and mortgage were left with him. Deed had not been turned over to plaintiff. Some time in February, 1904, defendant notified plaintiff that his deal on the swamp land was off. On March 4, 1904, plaintiff went to see defendant, and defendant said, if he (plaintiff) would make it $50 an acre, he would give him, plaintiff, the deed; the price agreed on in December, 1900, and the consideration named in the deed, having been $35 per acre. After considerable talk, plaintiff agreed to pay the price demanded rather than lose the land he had been working on for three years. He had ditched it, fenced it, and got it in tillable condition. He paid $275, the amount demanded, and defendant gave him his deed dated December 31, 1900. Upon an intimation by the court as to the charge, plaintiff submitted to a nonsuit and appealed.

Ward & Grimes, for appellant.

Small, MacLean & McMullan, for appellee.

BROWN, J. We agree with his honor that the cause of action upon plaintiff's own evi-deuce is barred by the statute of limitations, assuming that a cause of action had been made out; but no cause of action for duress is made out in the evidence or stated in the complaint. The payment of the $280 in order to get a deed for...