Mallard v. Day

. WILLSON, C. J. (after stating the facts as above). [1] The law being that a contract made under duress is voidable .at the instance of the party on whom the duress is practiced (1 Elliott on Contracts, § 142; 1 Black on Rescission, § 225; 9 R. C. L. p. 725; 9 Cyc. 443), and the jury having found that appellant would not have assigned the notes to W. W. Day but for duress practiced on him by said Day, appellant insists it was error for the trial court to refuse him relief. Appellees combat this, asserting that a sufficient reason for denying appellant relief lies in the further finding of the jury that the duress practiced on him consisted, in part at least, of threats of Day to prosecute him on a charge of felonious theft. They assert that appellant’s agreement to assign the notes to Day to induce him to forbear executing the threats was against public policy, and that, having assigned the notes in compliance with that agreement, appellant properly was denied relief. The proposition presenting the contention in appellees’ brief is as follows: “Where a contract h,as been entered into the consideration of which is the suppression of prosecution for crime, the courts will refuse to aid either party to same, either in the carrying out or the rescission of same, but will leave them where they are, such a contract being con-, trary to public policy and void; and this is true where any part of the consideration is so obtained and criminal.” [2] That -the rule appellees undertake to state and seek to invoke does not apply to the ease is clear in the light of the authorities. 1 Elliott on Contracts, § 162; 2 Elliott on Contracts, § 1101; 6 R. C. L. pp. 833, 834 ; 6 Cyc. 317; Gorringe v. Reed, 23 Utah, 120, 63 Pac. 902, 90 Am. St. Rep. 692; Colbey V. Trust Co., 160 Cal. 632, 117 Pac. 913, 35 L. R. A. (N. S.) 813, Ann. Cas. 1913A, 515. The facts in the Gorringe Case were not materially unlike the facts of this one. In that case the court said: “The very existence of a contract requires that the minds of the parties meet, and that it be executed freely and voluntarily by all the contracting parties. If, then, in a case like the one shown by the evidence herein, one of the parties acts under constraint, induced by the other, and signs the instrument without voluntary assent to it, the party who exerted the improper influence can take no advantage of the contract. * * * One who, under circumstances as now disclosed in this case, makes use of the criminal process of the courts for the purpose of overcoming the will of another to secure an advantage to himself is not in a position to obtain and hold the fruits of a contract, whether executed or executory, so obtained, on the ground that both parties were in pari delicto, and that in equity the court will leave them where it finds them.” [3] Having acquired the notes by duress practiced, W. W. Day held them as trustee for appellant, but charged with the $137.50 paid by him to Conditt; and having, while so holding the note, used them and money of his own to acquire the land, said Day held an undivided interest in the land as trustee fox-appellant. 39 Cyc. 172; Schneider v. Sellers, 98 Tex. 390, 84 S. W. 417; Fidelity & Deposit Co. v. Wiseman, 103 Tex. 286, 124 S. W. 621, 126 S. W. 1109; Gillean v. Wither-spoon, 121 S. W. 909; Morris v. Vyse, 154 Mich. 253, 117 N. W. 639, 129 Am. St. Rep. 472; Borchert v. Borchert, 132 Wis. 593, 113 N. W. 35. In the Sellers Case Justice Brown quotes the following from 2 Pomeroy’s Equity, § 1053, as a coi-x-ect statement of the rule: “In general, whenever the legal title to property, real or .personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it un-eonscientidhs for the holders of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired, in favor of the one who is truly and equitably entitled to the same.” And in the Wiseman Case Chief Justice Gaines said: “When one has been defrauded of property, as in this case, he may sue for the pi-operty itself. or, in case it has been sold to an innocent purchaser, he may recover the proceeds. *248 Whether of the property, or of its proceeds, the holder is considered a constructive trustee.” It appeared that Day gave the notes he held as trustee for appellant and $110 in money he owed in his own right to Cook for the land. The principal and accrued interest of the notes at that time amounted to $540.50. This sum, less $137:50 paid by Day to Conditt, who held the notes as security for a debt appellant owed him, represented the undivided interest in the land held by Day as trustee for appellant; and the $137.50 paid by Day to Oonditt and $110 paid by him to Cook represented the undivided interest owned by Day in his own right. So, it seems, Day paid $403 of the total of $650.50 he gave Cook for the land with property he held as trustee for appellant, and $247.50 thereof with property he owned in his own right. Hence it appeared that appellant owned an undivided interest of 806/1301 in the land. Therefore the court below erred when he rendered Judgment denying appellant relief. The Judgment of that court will be reversed, and Judgment will be here rendered that appellant do have and recover of appellees an undivided interest of 806/1301 in the land described in appellant’s petition. Footnotes [1] @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes