Hoover v. Mobley

Duckworth, Justice. (After stating the foregoing facts.) It is obvious that any right to any of the relief prayed for is dependent upon the deed dated October 26, 1943, and signed by the petitioner. If that deed is valid, then the petition shows that the petitioner has no intérest in or title to the land in controversy, and, hence, is entitled to no relief relating thereto. The deed is properly executed, recites a consideration, and is valid on its face. To show its invalidity, the petition sets forth what it is contended constitutes duress as a result of which the deed was executed. “Duress is coercion constraining action or inaction contrary to the vie-’ tim’s will.” 17 0. J. S. 525, § 168. See also the Code, §§ 20-503, 96-201, and 96-209. It is not sufficient to allege that the deed was executed because of an empty threat made by another. It is necessary to show that at the time there was an apparent intention and ability to execute the threat. Although opposing counsel strongly debate the question whether the decision in Bond v. Kidd, 1 Ga. App. 798, 801 (57 S. E. 944), is sound, we think it is a correct statement of the rule and should be applied and followed here, for the twofold reason — first, that it is a sound statement of the law; and, second, that it has been approved repeatedly by the Supreme Court. It is there said: “It has been frequently held that mere threats of criminal prosecution, where neither warrant has been issued nor proceedings commenced, do not constitute duress. . . The threatened prosecution must be for an act either criminal or which the party threatened thought was criminal. A mere empty *72 threat does not amount to duress.” This same language is used in Patrick v. Wood, 162 Ga. 137 (133 S. E. 870). To the- same effect, see Graham v. Marks, 98 Ga. 67 (25 S. E. 931); Williams v. Stewart, 115 Ga. 864 (42 S. E. 256); Mallory v. Royston Bank, 135 Ga. 702 (70 S. E. 586); Candler v. Byfield, 160 Ga. 732 (129 S. E. 57); King v. Lewis, 188 Ga. 594 (4 S. E. 2d, 464). The-entire allegations of the quoted paragraphs of the petition in which it is sought to show duress may be fairly summarized as follows: The petitioner Was a woman, and while she was at home and her husband absent, but with a number of her sons present with the defendants Mitchell and Mobley, and two other persons, Mitchell talked to her and urged her to execute the deed, reported that her husband had said that she should execute it, remained there for approximately three hours, from 4 o’clock to 7 o’clock in the afternoon, and during the discussion told her that she- would have to sign the deed or go to jail. He told her that he had gone there for the purpose of obtaining the deed; and from exhaustion, due to this long conversation, she became nervous and frightened, and because of the statement that she would have to go to jail she signed the deed, saying that she did not want to sign it, and that the land was worth more- than the $1500- consideration. Tested by the law as declared in the decisions cited above, such allegations fall-short of showing duress or grounds upon which a cancellation of the deed can legally be made. ' Without here entering into an extended discussion of the extreme- disfavor with ■ which the law looks upon fraud in all of its phases, suffice it to say that when fraud or duress is shown to have been the cause .for the execution of a deed dr other instrument, equity will in a proper case' oTder its cancellation, but this law does not mean that persons may be relieved of their own solemn contracts and engagements upon allegations that fall short of showing duress and fraud as defined by the law. The petition shows no apparent ability or present intention upon the part of Mitchell to have her incarcerated. She is content with the allegations that he said that she would go to jail if she failed to sign the deed. It does not appear that Mitchell stated any grounds upon which she would be prosecuted, nor is it otherwise made to appear that his statement was sufficient to arouse the fear of any one of being imprisoned. Therefore the allegations are insufficient to authorize a cancellation of the deed, and the peti *73 ..tioner is not entitled to any of the relief prayed for. Accordingly, it was not.error to sustain the demurrer and dismiss the petition. - Judgment affirmed. All the Justices concur.