Central Bank v. Copeland

Cochran, J., delivered the opinion of this court. The proceedings upon which this appeal was taken, were had upon a bill filed to obtain a decree for the sale of property belonging to Mary Ann E. Copeland, described in the mortgage executed by her husband, George W. Copeland, and herself, to secure the payment of an antecedent debt due from him to McPherson and Thomas. The answer of Mrs. Cope [317] land, although admitting the execution and acknowledgment of the mortgage, puts its validity in issue, on the ground, that she was forced to execute and acknowledge it by threats and menaces, which, from feeble health and a shattered nervous system, she was unable to resist; and the leading question presented is, whether the mortgage is voidable by her on the ground stated in the answer? The conveyance from McPherson and Thomas to the Central Bank, through which it claims in this case, if effective for any purpose, can only operate as an assignment of an interest in the mortgage executed to them, and under that instrument, considered as an assignment, the bank, as an assignee, will not be permitted to claim in any other or stronger right than that of the assignors. In this view of the existing relationship of the appellants, the question presented may be determined as one raised between the immediate parties to the mortgage. The element of obligation upon which a contract may be enforced, springs primarily from the unrestrained mutual assent of the contracting parties, and where the assent of one to a contract is constrained and involuntary, he will not be held obligated or bound by it. A contract, the execution of which is induced by fraud, is void, and a stronger character cannot reasonably be assigned to one, the execution of which is obtained by duress. Artifice and force differ only as modes of obtaining the assent of a contracting party, and a contract to which one assents through imposition or overpowering intimidation, will be declared void, on an appeal to either a court of law or equity to enforce it. The question, whether one exe - cutes a contract or deed with a mind and will sufficiently free to make the act binding, is often difficult to determine, but for that purpose a court of equity, unrestrained by the more technical rules which govern courts of law in that respect, will consider all the circumstances from which rational inferences may be drawn, and wilUrefuse its aid against one who, although apparently acting voluntarily, yet, m fact, appears to have executed a contract, with a mind so subdued by harshness, [318] cruelty, extreme distress, or apprehensions short of legal duress, as to overpower and control the will. 16 Ves., 156. 1 Ves. Jr., 22. 9 Penn., 14. 27 Penn., 22. 11 Mass., 368. 13 Mass., 371. 1 Story Eq., secs. 239, 240, 243. As the validity of this mortgage must, therefore, depend on the fact of its execution and acknowledgment by Mrs. Copeland, as her own free and voluntary act, we proceed to consider the evidence contained in the record, by which its character in that respect may be determined. In our opinion the testimony of Hays, taken to contradict or impeach his certificate of Mrs. Copeland’s acknowledgment of the mortgage, was not admissible. That the statements contained in the certificate, under the circumstances, and as between the parties in the case, were open to contradiction by proper and competent proof, cannot be doubted, but it does not follow, that a public officer, after the performance of an act required by law, should be permitted to defeat its effect by impeaching his official certificate of the manner in which he performed it. From considerations of public policy, if from no .other, he must be held an incompetent witness for such a purpose. Harkins vs. Forsyth, 11 Leigh., 294. The objection taken to the admission of the other witnesses, at least so far as their testimony is of declarations and acts leading to, and inducing the execution of the mortgage, we think cannot be maintained, and that, as such declarations and acts must be considered as a part of the res gestee, their testimony, to that extent, was properly admitted. From the portion of the evidence to be considered in that connection, it anpears that Mrs. Copeland had been, and was, at the time of executing the mortgage, much enfeebled in health, and-suffering nervous and mental depression, caused in part by the harsh conduct of her husband in reference to the proposed transfer of her property, and that her mind was so distracted, confused and reckless, as to induce the l^lief on the part of her attending physician, that she was incapable of making a valid deed or contract. The execution of the mortgage was [319] preceded by personal menaces and threats of her husband to destroy the property by fire, if she did not execute it, and the fact that it was executed and acknowledged involuntarily, as a consequence, cannot be doubted. The resort to measures thus violent and harsh, leads irresistibly to the conclusion, that her consent could not have been obtained otherwise. Her acknowledgment, that it was free and voluntary, and not induced by fear, as between the parties to the deed, is not conclusive of the fact that it was so; nor can it, with due regard to the evidence in the case, be so considered. The obvious purpose of the Act of 1830, ch. 164, in prescribing this form of acknowledgment, wras, to guard the wife’s title to property against the improper efforts of a husband to wrest it from her, and not to bar from judical remedy, outrages, by which such an acknowledgment might be extorted. A husband, who, by extreme harshness, compels a wife to execute a deed of her property against her will, and then, in the form prescribed by law for her protection, to sanction the wrong inflicted by acknowledging its involuntary execution to be voluntary and without fear, cannot, by reason of the mere formal acknowledgment, entitle himself, nor any one in whose interest, such a wrong may be attempted, to set up, and claim upon the deed, as a valid conveyance. As the execution and acknowledgment. of the mortgage in this case, by Mrs. Copeland, appears to have been induced by harshness and threats, and the exercise of an unwarrantable authority, so excessive as to subjugate and control the freedom of her will, the aid of this court to support and enforce its provisions against her, must be refused. The case of Bissett vs. Bissett, 1 H. & McH., 211, referred to in the argument of this case, is so imperfectly reported, that it cannot be relied on as an authority upon this question, but if its import be, to make the acknowledgment of a deed, by a wife under duress, conclusive and binding on her in all cases, we think it should not now be regarded as establishing a principle by which this case should be governed. The fact that McPherson and Thomas, personally, took no [320] active part in procuring the execution of the mortgage by Mrs. Copeland, does not strengthen their right to set it up as a valid deed, nor does it impair her right to avoid it. Its execution was procured by the husband, acting in their interest and for their benefit, and as their acceptance of the mortgage implies an adoption of his agency, they can have no right to enforce it, free from infirmities originating in this use of unconscionable means to compel its execution. (Decided June 3rd, 1862.) The only interest, therefore, upon which the mortgage can be held to operate, is that of the husband as tenant by the curtesy. To that extent its validity was admitted in the argument of the case, although it was contended, on the part of the appellees, that the decree taking the bill jtwo coifesso, was not authorized by the terms of the order of publication, notice of which appears to have been published, as directed, for three •weeks instead of one month, as required by the Act of 1842 ch. 229. We'think the decree was open to the objection taken, and that it should, for that reason, be reversed. In accordance with these views, the court will sign a decree reversing the decrees of the court below, dismissing the bill against Mrs. Copeland with costs, and remanding the cause for such further proceedings against George W. Copeland, as may be necessary for the final determination of the appellants’ proper rights and claims. Decree reversed and bill dismissed.