Turley v. Edwards
| Decision Date | 06 July 1885 |
| Citation | 18 Mo.App. 676 |
| Parties | JANE T. TURLEY, Respondent, v. SOPHIA EDWARDS ET AL, Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Cooper Circuit Court, HON. E. L. EDWARDS, J.
Affirmed.
The facts are stated in the opinion.
JOHN R WALKER, with DRAFFEN & WILLIAMS, for the appellants.
I. If as respondent alleges in her petition, the consideration for the notes and deed of trust was the suppression of a criminal prosecution, and the contract, into which she voluntarily entered, was opposed to public policy, then she is in no condition to ask affirmative relief from a court of equity. In such cases courts of equity uniformly refuse to interfere. They will not aid the one party to enforce, nor the other to cancel such a contract. Davis v. Luster, 64 Mo. 43; Kitchen v. Greenabaum, 61 Mo. 110; Compton v Bunker Hill Bank, 96 Ill. 301; Swartzer v. Gillett, 2 Pinney (Wis.) 238; Allison v. Hess, 28 Iowa 389; Roll v. Raguet, 4 Ohio 400; Haynes v. Rudd, 83 N.Y. 251; Jones on Mortgages, second edition, vol. 1, sect. 619; Pomeroy Eq. Jur., vol. 1, sect. 402; Hamilton v. Scull's Adm'r, 25 Mo. 165; Bartle v. Nutt, 4 Peters (U. S.) 184; Irwin v. Wells, 1 Mo. 9.
II. There was no duress in this case. A threat of lawful prosecution does not constitute duress. Davis v. Luster, 64 Mo. 43. The petition in this case shows that respondent's son had been indicted for perjury, and was a fugitive from justice, and the petition does not allege that he was innocent of the crime, and hence, as said by our supreme court in Davis v. Luster, supra, this is simply a case where a party has purchased immunity for her son from lawful prosecution.
III. The petition in this case shows that Edwards had been compelled to make payments by reason of the forfeiture of Turley's bond. It certainly is inequitable to set aside the deed of trust and cancel the notes in any event, without requiring the plaintiff to do equity. She should refund what he expended.
IV. ON MOTION FOR RE-HEARING:--There is no express allegation that plaintiff entered into the transaction against her will and by compulsion. Every fact which the plaintiff must prove to maintain his suit is constitutive, and must be alleged. Pier et al. v. Heinrichoffen, 52 Mo. 333. Neither are they necessarily implied from any of the averments in the petition.
V. In cases involving moral turpitude no inquiry will be made into the relative guilt of the contending parties. Kitchen v. Greenabaum, 61 Mo. 110.
VI. Does not this suit involve the title to real estate? See Dunn v. Miller, St. Louis Court of Appeals--unpublished.
COSGROVE, JOHNSTON & PIGOTT, for the respondent.
I. The petition in this case alleges, in clear and unmistakable language, that the plaintiff was induced to execute the notes and deed of trust which she seeks to have canceled, by the threats of the defendant, O. D. Edwards; that unless she did execute said notes and deed of trust, he would have her son arrested and prosecuted for crime, etc.; that she feared he would carry his said threats into execution, and to prevent this, she complied with his demands. Plaintiff, therefore, did not act in free exercise of her will. She owed the defendants nothing and would have promised them nothing, but for the threats of the prosecution of her son.
II. " Whatever destroys free agency and constrains a person to do what is against his will, and what he would not do, if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of physical or mental coercion." Earle v. Norfolk & New Brunswick Hosiery Co., 36 N.J.Eq. Rep.; 16 Cent. Law Journal 218; Eadie v. Slimmon, 26 N.Y. 9.
III. It is well settled that a contract made to relieve a husband, or wife, or parent, or child from duress, or under threats of his or her prosecution for a crime, may be avoided. Harris v. Carmody, 131 Mass. 51; Preed v. McKee, 42 Iowa 689; Jordan v. Elliott (S. C. Pa.) 22 Am. Law Reg. N. S. 180; First National Bank Nevada v. Bryon, 62 Iowa 42; Coffman v. Lookout Bank, 5 Lea. Tenn. 232; Eadie v. Slimmon, 26 N.Y. 9; Seear v. Cohen, Eng. High Ct. Q. B. Div., November 10, 1881; 14 Cent. Law Journal 96; Williams v. Bayley, 14 L. T. Rep. (N. S.) 802; 41 Am. Rep. (note) 190.
III. Story's Eq. Jur. (12th Ed.) section 298, and note, and following sections; Waterman on Spec. Perf. Cont., section 210. And the general rule, leaving the parties without remedy, is not applicable when the contract is prohibited for the mere protection of one of the parties against an undue advantage which the other party is supposed to possess over him. Deming v. State (23 Ind. 416); Scotten v. State (51 Ind. 52); Waterman on Spec. Perf. Cont., section 210 and note 2. It is no offence for a mother to conceal her son after the commission of a felony by him, or give him any other aid, in order that he may escape or avoid arrest, trial, conviction or punishment. Revised Statutes, section 1650; Kitchen v. Greenabaum, 61 Mo. 110.
IV. In every one of the cases cited by appellant's counsel the parties were upon an equal footing --there was no " fraud, oppression, imposition, or hardship, practiced by one party upon the other, thereby obtaining an unconscionable advantage," as in the case at bar. Kitchen v. Greenabaum, supra ; Jones on Mortgages (2nd Ed.) Vol. 1, section 619; Haynes v. Rudd, 83 N.Y. 251.
V. The petition clearly charges that plaintiff, because of the threats of defendants, and against her will, signed the notes and deed of trust.
This is an action to enjoin the collection of certain notes and the enforcement of a deed of trust, executed as security for said notes, and to have the same canceled. The material averments of the petition are: That at the time plaintiff, who was and is a widow, signed said notes and executed said deed of trust, there was pending in the circuit court of Cooper county an indictment against her son, F. M. Turley, for the crime of perjury, who then was a fugitive from justice. The defendant, O. D. Edwards, claiming that he had paid out large sums of money as bondsman for said son, said bond having been forfeited, " he asked and demanded of the plaintiff that she should sign said notes and execute a deed of trust upon her land above described, which was her home, and all she had, to secure the same; that upon her refusal to comply with his demands, and to sign said notes, and make said deed of trust, the said defendant, O. D. Edwards, told plaintiff that he had learned the whereabouts of her said son, and that unless she would sign said notes and execute a deed of trust upon her said land to secure the same, he would have him arrested and brought back to Cooper county for trial, and would have him prosecuted for the crime of perjury, with which he stood charged; but that if she would sign said notes, and give said deed of trust as he wished and requested her to do, he would not have her said son arrested and prosecuted upon the charge aforesaid, and would not inform the officers of the law of his whereabouts; that plaintiff fearing that the said O. D. Edwards would carry out his said threats to have her son arrested and prosecuted as aforesaid, and relying upon his promise that he would not have him arrested and prosecuted upon said charge of perjury, and that he would not inform the officers of the law of the whereabouts of her said son, and in consideration of this said promise only, did sign her name to said notes, which were by the direction of the said O. D. Edwards made payable to his wife, the said defendant, Sophia Edwards, and execute and deliver said deed of trust to secure the same."
It is further alleged in said petition that at the time plaintiff signed said notes and executed said deed of trust, as aforesaid, she was not indebted to either O. D. Edwards or his wife, Sophia Edwards, in any sum or on any account whatever, and that no consideration of any character or description, other than is above mentioned, passed from them to plaintiff. On issue joined by defendants the court found for the plaintiff, and made decree as prayed. After motion in arrest of judgment, the defendants have brought the case here on appeal.
The single question, therefore, presented by this appeal is, does the petition state facts sufficient to entitle the plaintiff to relief? None of the evidence at the hearing was preserved in the bill of exceptions. It is to be presumed that the proofs amply sustained the allegations of the bill, and that every fact, within the terms of the averments, essential to maintain the decree, was fully established.
1. The contention of defendant's counsel is, that it is apparent on the face of the petition that the consideration of the notes and deed of trust was immoral and contrary to public policy; and, therefore, neither the courts of law nor equity will grant affirmative relief to either party, but will leave them where their mutual wrong has placed them.
That a compact of this character is immoral, and opposed to the well being of society, as tending to obstruct the due administration of justice, is recognized by all courts. " Whenever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy." 1 Story on Const., section...
To continue reading
Request your trial