The Eureka Bank v. Bay

• Decision Date: 11 October 1913
• Docket Number: 18,375
• Citation: 90 Kan. 506,135 P. 584
• Parties: THE EUREKA BANK, Appellant, v. ROBERT B. BAY et al., Appellees
• Court: Kansas Supreme Court

135 P. 584

90 Kan. 506

THE EUREKA BANK, Appellant, v. ROBERT B. BAY et al., Appellees

No. 18,375

Supreme Court of Kansas

October 11, 1913

Decided July, 1913.

Appeal from Anderson district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTE OF LIMITATIONS--Relief on the Ground of Duress. The provision of the statute of limitations governing actions for relief on the ground of fraud has no application to an action for relief on the ground of duress by threats.

2. Same. The statute of limitations does not commence to run against an action for relief on the ground of duress by threats while the mind of the aggrieved party continues to be dominated by the threats.

3. Same. So long as the influence of duress continues, conduct in apparent recognition of the validity of contracts procured by that means does not constitute ratification.

4. NOTE AND MORTGAGE--Duress--Limitation of Action--Evidence. The evidence considered and held to support a judgment canceling notes and mortgages on the ground that they were procured by duress, in opposition to pleas of the statute of limitations and ratification.

R. P Kelley, of Eureka, for the appellant.

Noah L. Bowman, of Garnett, for the appellees.

OPINION

BURCH, J.:

The action in the district court was instituted on November 8, 1910, for the purpose of obtaining judgment against the defendants on two promissory notes given by them to the plaintiff on November 28, 1905, and for the foreclosure of two real-estate mortgages securing payment of the notes. The answer of the defendants was filed on January 17, 1911. It alleged that the instruments were given under duress practiced by an agent of the plaintiff. The facts stated in the answer were asserted both by way of a defense to the petition and as a cause of action for the cancellation of the notes and mortgages. The reply pleaded ratification and the bar of the statute of limitations. The court stated findings of fact and conclusions of law favorable to the defendants, and judgment was rendered accordingly, including cancellation as prayed for. The plaintiff appeals.

It is contended that the evidence does not support the finding of duress, the test of which is whether or not the free will of the person alleging it was constrained. (Williamson v. Ackerman, 77 Kan. 502, 94 P. 807.) Since the question is raised the court is free to say that the evidence shows perfectly cold-blooded coercion by means of threats entirely destitute of the finesse and diplomacy exhibited in the case of Smith v. Bank, ante, p. 299, 90 Kan. 299, 133 P. 428, whereby the defendants were driven to mortgage the little property they had saved for their support in old age and, as they believed, to face hard work for the rest of their lives in order to save their son from the penitentiary. The credibility of this evidence was a matter for the trial court to determine.

The substantial legal questions involved relate to the application of the statute of limitations. The argument of the plaintiff may be summarized as follows: Duress is a species of fraud. Besides this, the answer alleged that the representations of the plaintiff's agent respecting the liability of the defendant's son to prosecution for crime were false, so that the real defense was fraud in fact. An action for relief on the ground of fraud is barred in two years from the discovery of the fraud (Civ. Code, § 17, subdiv. 3), and when a right of action is barred by the provisions of any statute it is unavailable either as a cause of action or ground of defense (Civ. Code, § 24). If, however, duress be distinguishable from fraud, the right to relief on the ground of duress accrued immediately upon the execution and delivery of the instruments and consequently was not available after five years from that date (Civ. Code, § 17, subdiv. 6), either as a cause of action for cancellation or as a defense to the plaintiff's suit.

The allegations of the answer just referred to did not characterize the defense. They were merely incident to the statement of the facts relating to the duress which induced the giving of the notes and mortgages.

There is no clear and all-inclusive definition of the term "fraud." If there were it would soon need to be extended and corrected. Broadly speaking, all conduct may be said to be fraudulent which results in unconscientious advantage over, or injury to another, and in this sense duress per minas is an imposition resembling fraud. But as generally understood fraud involves artifice, deceit circumvention, breach of confidence, and the like, while duress attacks the will directly and overpowers it by the force of danger inflicted or threatened. The distinction is quite obvious between fraud and duress by imprisonment, and certainly something other than fraud is accomplished when the will is beaten into submission by the bludgeon of threats. The conclusion is that duress was not in the mind of the legislature when it provided that an action for relief on the ground of fraud must be brought within two years after the cause of action...