Thompson v. Niggley

• Decision Date: 06 January 1894
• Citation: 53 Kan. 664,35 P. 290
• Parties: THOMPSON et al. v. NIGGLEY et al.
• Court: Kansas Supreme Court

35 P. 290

53 Kan. 664

THOMPSON et al. v. NIGGLEY et al.

Supreme Court of Kansas

January 6, 1894

Syllabus

Written securities extorted by means of threats of prosecution for criminal offenses of which the party threatened was guilty in fact, but which were in no manner connected with the demand for which compensation was sought may be avoided by the parties executing them, not only in the hands of the original payee, but of his assignees, having notice of the circumstances under which such securities were taken.

Error from district court, Marshall county; R. B. Spilman, Judge.

Action by N. B. Thompson and another against Michael Niggley and another to foreclose a mortgage. There was judgment for defendants, and plaintiffs bring error. Affirmed.

J. A. Broughton, for plaintiffs in error. Ed.

A. Berry and Mann & Redmond, for defendants in error.

OPINION

ALLEN, J.

N. B. Thompson and H. F. Talbot, as partners, brought suit on a note executed by Michael Niggley and Fannie Niggley, his wife, for $1,250, payable to Rudolph Summers, and to foreclose mortgages given to secure the same. The plaintiffs claimed to be purchasers of the note and mortgage from Summers. The defendants, in their answer, admit the execution of the note and mortgages, but allege that they were without consideration, and were obtained by fraud and duress. It appears that Michael Niggley kept a billiard saloon in Waterville; that late one evening, as he was taking his cash from his money drawer, preparatory to closing up for the night, he had a revolver out, which accidentally went off, hitting Summers. Summers, though seriously hurt, recovered, so as to be able to get about. Some friends of his soon after talked to Niggley about a settlement of Summers’ claim for damages growing out of the injury. On the day on which the note and mortgages were executed, friends of Summers again approached Niggley with reference to a settlement, telling him that, if charges were preferred against him for selling whisky, they would have to swear against him. They induced Niggley to go with them to the office of one Griffiths, who acted as attorney for Summers. While there, there was further talk about a settlement of Summers’ claim. Summers and several of his friends were present. They kept Niggley there, and sent for his wife, who left a very sick child, and went to Griffiths’ room. Griffiths threatened to prosecute Niggley for selling whisky if he did not accede to his demands and execute the note and mortgage sued on. The case was submitted to a jury, who rendered a general verdict in favour of the defendants, and also, in answer to special questions, found that the signatures both of Niggley and his wife were obtained by duress, and through fear of criminal prosecution. Niggley himself testified on the witness stand that he had been selling liquor in violation of law.

The principal question discussed in the briefs is whether a charge of duress can be maintained by showing threats to prosecute a person for an offense of which he is in fact guilty. It does not appear that any complaint had been filed against Niggley, nor was there any pretense that process had been issued for his arrest. Long lists of authorities are cited by counsel on both sides for the purpose of showing the rules that have been declared by the various courts as to what constitutes duress. It is impossible to extract from the cases any complete definition which has been uniformly adhered to. There are cases holding that mere threats of criminal prosecution, when no warrant has been issued, do not constitute duress. Higgins v. Brown, 78 Me. 473, 5 A. 269; Harmon v. Harmon, 61 Me. 227; Buchanan v. Sahlein, 9 Mo.App. 552. This court, however, held, in the case of Bank v. Croco, 46 Kan. 620, 26 P. 939, that "if the creditor operated upon the fears of the husband by threats of arrest and imprisonment, believed by him to be imminent, and thus overcame his will, and through fear and undue influence compelled him to sign the mortgage, the signature is not binding; and if the wife was induced to execute the mortgage from fear, excited by threats made to her by the creditor of an illegal criminal prosecution against her husband, the instrument thus obtained will not be binding upon her." This case settles the question as to the necessity that a prosecution should have been actually commenced in order to establish duress, but does not touch the point presented here as to whether duress can be predicated on threats of a lawful arrest and prosecution. It appears from the testimony of Niggley himself that he was guilty of the offenses for which he was threatened with prosecution, and the duress consisted mainly, if not entirely, in the fears excited in the mind of the defendant by threats of such prosecution. There are many cases holding that the threat of a lawful arrest does not constitute duress in such sense as to discharge the person threatened from liability on a contract which he has been induced to sign by means of such threats. Nealley v. Greenough, 25 N.H. 325; Compton v. Bank, 96 Ill. 301; Eddy v. Herrin, 17 Me. 339; Clark v. Turnbull, 47 N.J. Law, 265; Mundy v. Whittemore, 15 Neb. 647, 19 N.W. 694; Sanford v. Sornborger, 26 Neb. 295, 41 N.W. 1102. For other cases, see 6 Amer. & Eng. Enc. ...