Reed v. . Exum

*432 Smith, O. J. The deed, though found by the jury to have been obtained by duress, was not for that reason void, but Capable of being avoided or confirmed at the election of the grantor. “All grants that are made by duress are voidable by the parties that make them, or others that have their estates,” and they may be validated. 2 Shep. Touch., 233, 238; Bacon’s Ab., Title, Duress, D; Somere v. Pumphrey, 24 Ill., 231; Deputy v. Stapleford, 19 Cal., 302. They should be avoided in a reasonable time after the vitiating force which produced the act has ceased to operate, and a long unexplained delay in asserting the right to annul raises a presumption of acquiescence and ratification. “There is no doubt,” say the court in Brown v. Peck, 2 Wis., 261, “ that by long acquiescence in a contract, merely voidable, the right to avoid it may be lost.” But this aspect of the case and the consequences of the plaintiff’s inaction are not presented in the record for our consideration, and we forbear to express an opinion as to the effect of the delay upon the plaintiff’s claim to equitable relief. It would seem unreasonable for the plaintiff to remain quiet, while the defendant is expending his money in the improvement of property, believing to be his own, and to which no claim is put forth fora series of years, and then take it back through the instrumentality of the court without allowing any compensation for its enhanced value. If the apparent laches does not obstruct the recovery of the land, it at least entitles the grantee, who had no option in the matter, to an allowance for its increased value by reason of the expenditures, from the amount with which he maybe charged for the use and occupation. While it may be true that the defendant knew, or is presumed to know, as a proposition of law, that a deed thus procured could be set aside by the injured party, it would not be at liis own instance without the concurrence of the plaintiff, and he might reasonably infer from the long interval elapsing before any movement is made to *433 ■disturb his possession or title, that the plaintiff was content to let the transaction stand undisturbed. He who asks equity must do equity, and the court in the exercise of its equitable jurisdiction will compel a reconveyance on terms that are just to both parties. Futrill v. Futrill, 5 Jones Eq., 61. All that the plaintiff is entitled to is the restoration of his land in the state in which it was taken from him, with compensation for the use meanwhile and for any damages it may have sustained. .On the other hand, its increase of value from improvements is a proper counter-elaim against the wronged owner. But this counter-claim should be dig-, charged from the earlier annual rents, as well as the purchase money paid, and when the successive rents havp atv. sorbed the amount of these demands of the defendant, the. remaining rents of the land as improved, not extending back beyond three years from the commencement of the-suit, will be the measure of the plaintiff’s recovery. This, increased rent is given because the improvements will, then, have been discharged out of the plaintiff’s funds. While the record is silent as to the adjustment of the-respective claims whereby the sum adjudged is ascertained,, and it would seem that all originating before the statutory bar interposes are disregarded, the same result will be-reached, if these anterior rents are sufficient upon an estimate in accordance with this opinionif not, the excess, due the defendant must be met from the rents which are not barred. There must therefore be a reference to, the clerk to. make the computation upon the basis suggested, unless the parties, themselves can agree upon, the amount, and when, ascertained, the plaintiff will be entitled: to judgment, therefor,- and for a reconveyance. Per Curiam. Judgment modified!.