Koons v. Vauconsant

Hooker, C. J. The complainants pray a decree discharging a mortgage given by them under alleged duress. Their claim is that on January 2, 1900, defendant’s son and his lawyer called at the home of the complainants, and presented a note, which purported to bear the signature of their son, E. S. Koons, and his father, Solomon D. Koons, ■one of the complainants, which note bore date November '27,- 1896. Solomon stated to them that they had made •such a note in 1892, but that he had not made a second note; that his signature was not upon the note presented, nor had he ever authorized any one to sign his name to it. It is claimed that the lawyer said that their son, E. S. Koons, must have signed it, and that, unless complainants gave a mortgage upon their farm to secure defendant, their son would be arrested. Complainants requested a little time to investigate, but this was denied, and the mortgage was made. A day or two later this bill was filed. The defendant’s counsel question the accuracy of this statement, but do not deny that the first note was given, being dated in 1892, in payment for an interest in a stock of goods bought by the younger Koons from one Sullivan, who was payee in that note. It is not disputed that an interview was had and the mortgage made at the time and place alleged, but it is denied that it was obtained by threats of arrest or duress of any character. We are convinced that the $1,000 note originally given was never renewed by the complainant S. H. Koons, and that action upon it was barred by the statute of limitations before the mortgage in controversy was given. The note defendant’s Exhibit A was the last of several consecutive renewals of that note, but complainant’s name was written upon it by his son, without his authority. While this took the debt out of the statute as to the son, it could not have that effect upon the complainant, because he was not a party to the fraud upon the payee. He has done nothing that should estop him from pleading the statute, although his principal may have done so. Tate v. Stevenson, 55 Mich. 320 (21 N. W. 348); Rogers v. Ander [262] son, 40 Mich. 290; Sweet v. Ellis, 109 Mich. 460 (67 N. W. 535); Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334); 19 Am. & Eng. Enc. Law (3d Ed.), p. 309, and note 2; Id. (as to fraud of agent) p. 249, and note 4; Stevenson v. Robinson, 39 Mich. 160. Undoubtedly, a new promise'made by the complainant would be valid, so far as consideration is concerned, because of his-moral obligation, notwithstanding the lapse of more than six years. But he was under no legal obligation to renew his note, and certainly he was under no legal duty to secure it. The moral obligation did not enter into the contract. He refused to recognize that, and denied his liability ; and the proof is convincing that he and his wife were moved to execute the mortgage reluctantly, and through, the fear of danger to their son, and hope to prevent his prosecution for the criminal offense of forgery. The defendant’s agent and attorney called upon complainants for the purpose of getting security. During that interview— it matters not how — the subject of the forgery was introduced, and the complainants’ fears became ax’oused. Defendant’s witnesses say they were not responsible for that, for they made no threats of arrest nor promises of immunity, and that S. D. Koons himself suggested that the note was a forgery, and that the person who perpetrated it ought to be prosecuted. Counsel say that they did not suggest that this was a forgery, 'for they entertained a different theory about the note. If this be conceded, the fact remains that they availed themselves of the persuasive influence of the fear of prosecution of the son felt by his parents. They refused to give an opportunity for the complainants to investigate and ascertain the truth about the matter, and we do not doubt that it was intended that they should understand that the giving of security would prevent prosecution, and that it was the only way that it could ■ be prevented. The arrangement, then, was to all intents and purposes an agreement to compound an alleged felony. It may be said that they thought there was no forgery, and perhaps there was none, and that, therefore, no felony was [263] really compounded; but one cannot obtain a promise upon a threat to accuse of a felony, and afterwards avoid the consequences and make the consideration legal by showing that there was no felony committed as a matter of fact. If the minds of these parties met upon the consideration, it was that there should be no prosecution for a crime which both understood defendant’s representatives to assert. There is some confusion on the subject of duress, and it may be due in part to the unnecessary attempt to invalidate such contracts as this upon the ground of duress. It is evident that there are few husbands, wives, parents, or children who would not make a heavy sacrifice to avert punishment to their immediate relatives, and this is so natural that few blame them. Yet the law punishes those who compound a felony. As a consideration for an undertaking, a promise not to prosecute a felony is illegal and void. No other consideration appears here. The'moral obligation would, perhaps, support a promise, if it entered into the transaction. There is not only no evidence that it did, but the clearest evidence that it did not. It is right that men should pay their debts, and not culpable for creditors to collect by legitimate means and methods; but making merchandise of the criminal law is not a lawful method. We concur with the learned circuit judge in his disposal of the case. The decree is affirmed, with costs. Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.