Bank of Penfield v. Colclough

Atkinson, J. 1. When the case- was before this court on exception to a judgment refusing an interlocutory injunction (Colclough v. Bank of Penfield, 150 Ga. 316, 103 S. E. 489), the following ruling was announced: “ If the fears or affections of a father for his son are wrought upon by threats of a criminal prosecution of the son, and the father is thereby induced and coerced, against his will, to execute his promissory note and a security deed to land in order to prevent such threatened prosecution, there is duress as to the father, even though the threatened prosecution be for a crime which has been committed by the son; and such instruments are void, and may be canceled in a proper proceeding at the instance of the maker. In such a case the rule does not apply that if parties voluntarily enter into a contract to suppress a criminal prosecution they are in pari delicto, and neither a court of law nor equity will interpose to give relief to either party. Civil Code, §§ 4116, 4255; Jordan v. Beecher, 143 Ga. 143 (84 S. E. 549, L. R. A. 1915D, 1122); Hodges v. Citizens Bank of Sylvania, 146 Ga. 624 (92 S. E. 49); Williamson-Halsell-Frazier Co. v. Ackerman, 77 Kan. 502 (94 Pac. 807, 20 L. R. A. (N. S.) 484).” 2. Other principles held applicable in the ease were: “‘The judgment of a court of competent jurisdiction may be set aside by a decree in chancery, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.’ Civil Code, § 5965. The evidence for the petitioner, if true, showed that the judgment sought to be set aside was obtained by such duress as amounted to a species of fraud (9 R. C. L. 711, 728), and by ‘the acts of the adverse party, unmixed with the negligence or fault of the complainant.’ ‘ Eraud will authorize a court of equity to annul conveyances, however solemnly executed, and to relieve against awards, judgments, and decrees obtained by imposition.’ Civil Code, § 4629.” [223] No. 2853. September 20, 1922. 3. Under application of these principles the petition alleged sufficient grounds for injunction and cancellation as prayed. 4. By amendment to the petition the president of the bank was stricken as a party defendant, thus leaving as the only parties to the case the plaintiff and the bank. There was no improper joinder of parties; and the suit being in equity, there was" no improper joinder of causes of action. 5. In view of the nature of the threats alleged to have been made both to the father and the mother, the allegations of paragraphs 4, 5, 6, 8, and 11, relative to such threats being made to the mother, were not subject to demurrer on the ground that they were not germane to the issue involved. 6. For similar reasons it was not error to overrule the demurrer to paragraph 13 of the petition, relating to the transaction between the bank and the plaintiff’s daughter. The allegations contained in this paragraph were not necessary to ,be alleged by the plaintiff; but as they tended to illustrate the extent of the duress practiced on the plaintiff, they were not wholly immaterial or improper. 7. In so far as the petition sought to have a receiver for the property conveyed by the plaintiff to the bank, a cause of action for such relief was alleged; but no sufficient ground was alleged for appointing a receiver for other assets of the bank as an insolvent institution. 8. Except as indicated above, the petition as amended was not subject to any of the grounds of demurrer. 9. Applying the principles ruled in the preceding notes, the judgmord of the court below is affirmed in all respects, except in so far as it overruled the demurrer to that part of the petition seeking a receiver for the general assets of the bank. As to the judgment overruling the demurrer to ■ that part of the petition such judgment is reversed. The plaintiff in error.having obtained a material modification of the judgment, the cost of bringing the case to the Supreme Court will be taxed against the defendant in error. Judgment affirmed in part and reversed in part. All the’ Justices concur. J. 8. Callaway, Miles W. Lewis, and Noel P. Parle, for plaintiff in error. M. P. McWhorter, 8. C. Upson, and Callaway & Howard, contra.