Hodges v. Citizens Bank

Atkinson, J. 1. A motion was made to dismiss the bill of exceptions, on the ground that it did not contain any valid assignment of error. The ground of attack made upon the assignments of error was that they were too indefinite to present any question for consideration. The bill of exceptions alleged that the plaintiff made an oral motion to strike the plea and answer filed in the case, "on the grounds that the same was insufficient in law and did not set up any legal defense; which motion after argument was sustained by the court and an order passed sustaining said motion and striking said plea and answer, and to this ruling plaintiffs in error (defendants in the trial court) excepted, now excepts, and assigns the same as error upon the grounds that the said ruling was contrary to law.” After this assignment of error the bill of exceptions also made a general as [628] signment of error to the direction of the verdict and the entering of a decree thereon, “upon the grounds that the same was contrary to law.” It appears from the foregoing that the plaintiff in error made a specific assignment of error upon the judgment striking the plea, upon the ground that the judgment striking the plea was contrary to law. See McGregor v. Third National Bank of Atlanta, 124 Ga. 557 (53 S. E. 93); Melson v. Thornton, 113 Ga. 99 (38 S. E. 342). The judgment dismissing the plea preceded the final judgment, and there was a general assignment of error upon the final decree. This is sufficient to authorize a consideration of the assignment of error based upon the judgment striking the plea, the effect of which was to deprive the plaintiffs in error of the equitable defense which they sought to make. Lyndon v. Ga. Ry. &c. Co., 129 Ga. 353 (58 S. E. 1047). Accordingly the motion to dismiss the bill of exceptions will be overruled. 2. The case presented by this record, on the controlling point, is very similar to Jordan v. Beecher, 143 Ga. 143 (84 S. E. 549, L. R. A. 1915D, 1122). In that ease it was said: “The case presented by this record is not one for the enforcement of an executed contract, but for the cancellation of deeds executed under duress of imprisonment. Our Civil Code (1910), § 4255, declares: ‘The free assent of the parties being essential to a valid-contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will void the contract. Legal imprisonment, if not used for illegal purposes, is not duress.’ ‘Duress’ as defined by the Civil Code (1910), § 4116, ‘consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means 'amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.’ ” After discussing the facts of the case and noting a number of authorities, the opinion proceeded: “Where parties enter into an agreement seeking to stifle a criminal prosecution, the parties are in pari delicto, and the law refuses to aid either of them against the other. That rule applies where the nature of the undertakings and stipulations of each, if considered by themselves alone, would show the parties equally in fault; but where the incidental circumstances, such as imposition, oppression, duress, undue influence, taking advantage of necessi [629] ties or weaknesses, and the like, are used as a means of inducing the party to enter into the agreement, the law will not deem the party influenced by such circumstances as being in pari delicto, so as to deny him any relief from the contract infected with illegality. 2 Pomeroy’s Eq. Jur. § 942. Where the fears or affections of a wife are worked upon through criminal proceedings instituted against her husband, and she is induced thereby, against her will, to convey her property to pay his debt and obtain his release from prison, there is duress as to her, even though the debt may be valid, and the prosecution be for a crime which has in fact been committed by the husband.” The principles announced in that case are applicable to the facts of the present one. The plea distinctly alleged that the plaintiff, the Citizens Bank of Sylvania, acting by and through its president, first accused the younger defendant with the offense of embezzling the funds of the other corporation, and on the following day caused a warrant to be issued upon which he was arrested, and, after he had been released on bond, persisted in proclaiming that he was guilty of the offense, that the bond was insufficient, and that he would be put in jail; and thereby induced the defendants, by threats, to execute the deed for the purpose of avoiding criminal prosecution, when as a matter of fact the accused was not a defaulter. The younger defendant was the son of the other two, and the acts above mentioned constituted duress with reference to him, and, under the principles announced in -the ease cited above, amounted to duress with reference to them. Under this view, it was erroneous to strike the plea upon oral motion, and to direct a verdict for the plaintiff. Judgment reversed. All the Justices concur.