Tapley v. Tapley

By the Court — Berrv, J. — It appearing from the testimony of the respondent, who was plaintiff below, that she was a married woman and wife of one of the defendants, the counsel for the appellant moved to dismiss the action on the ground that the Court had no jurisdiction of the person of the plaintiff, insisting that the objection could be taken by motion at any stage of the trial. This objection went to the legal capacity of the plaintiff to sue, and not having been taken by answer or demurrer, was waived. Pub. Stat., 540, Sec. 69. The motion was therefore properly overruled. Several interrogations propounded to the plaintiff upon the witness stand were objected to as leading. Even if the interrogatories were leading in form, there is no inflexible rulé by which they can be excluded. The judge who presides at the trial has far better opportunities of determining whether a question is objectionable as improperly suggesting an answer to the witness which will be but an echo of the question, than this Court possessess, and unless it is quite apparent (as it is not in this case), that some gross injustice resulted from the mode of examination allowed, we are not inclined to criticise or review it. 1 Greenl. Ev., Sec. 435. Several inquiries were addressed to the respondent by her counsel which were objected to as incompetent or irrelevant or both. They were all directed to the circumstances under which the deed from the respondent to Carll was executed or delivered, and as we think all had a tendency to show that the execution and delivery were not the free and voluntary acts of the respondent. Ordinarily the proper course wouhj be to ask the witness to state the circumstances attending the giving of a deed, but for reasons which appear to have controlled the discretion of the Court, counsel were allowed to call the attention of the witness to particular matters which went to give character to the transaction and by interrogatories which were leading in form. [457] We can conceive of no reason why they were not competent. Certainly it would have been proper to ask the witness in a general way, “What induced you to execute the instrument ?” and we apprehend that the interrogatories put to this witness were to the same effect. It is to be remembered that in this action the respondent appeals to the equitable powers of the Court, and it is not a case in which the defendant Walker comes into Court with clean hands, setting up the innocency and bona fieles of his purchase; but a-case in which he has not only taken a conveyance in payment of a precedent debt, but in which as the evidence tends to phow and the jury find, he had full knowledge at the time he took his title of the circumstances under which his grantor acquired title, and by those circumstances he is affected to the same extent as if he stood in Tapley’s shoes, and had been an active party in fact to the original transaction. If it should be held that by the/ac£j of an acknowledgment before a proper officer, a married woman^ may be estopped from denying the voluntary execution of her deed to the prejudice of an innocent party, the doctrine could have no application here. Another question was raised upon the trial below as to the admissibility of certain letters written by the defend- ,, ant Walker to his co-defendant George W. Tapley. Whether'' the inquiries made of the witness as to what those letters related to, and to what letters they were in reply were proper or not, is immaterial. The letters themselves taken together and in connection with the facts which had already appeared from the pleadings and evidence, sufficiently showed that they related to the land in question and the transactions involved in this suit. We think they were rightly received. In order to affect Walker with the equities of the respondent against Carll and her husband, she had a right to rely upon the fact that Walker took the land in payment for a precedent debt, or to show that he took it with a full knowledge of all the circumstances or both, and if the fact that the answer admitted that the land was taken for a precedent debt, might dispense with the necessity of going farther and proving knowledge, we are unable to see how injustice was done by al [458] lowing such knowledge to be proved, and that too by written admissions of the defendant Walker. We think the letters had a tendency to establish this knowledge, to show bad faith on the part of Wallcer, and to render the whole business from the beginning more than suspicious. There were other, objections made to the admission of testimony which it is not necessary to notice further than to say that they are not well taken, as they seem to be waived by the omission to rely upon them in the points or arguments of the appellant’s counsel. The Court instructed the jury among other things: “That to constitute duress which would avoid the deed, it is not necessary that the threats be of physical injury alone, but if the plaintiff, the wife of Tapley, was induced to execute the deed by the threats of Tapley her husband, that he would separate from helas her husband and not support her, it is duress, and would avoid the deed. The threats must be such as she might reasonably apprehend would be carried into execution, and the act must have been induced by the threats. It is not necessary that the threats be made at the time, or immediately before signing, if it was within such time, and the circumstances satisfy you that the threats or its influence properly continued and influenced the plaintiff.” . To this instruction exception was taken, but not well taken. Greenleaf in the 2d volume of his work on Evidence, section 301, says that “By duress in its more extended sense is meant that degree of severity either threatened and impending or actualty inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” And again, that duress per minas is restricted by the common law to fear of “remediless harm to the person.” There is no doubt that the common law sense of the word “duress,” has been somewhat enlarged in the progress of civilization. See Toshay vs. Ferguson, 5 Denio, 157. In that case Mr. Justice Bronson holding that the fear of threatened illegal imprisonment will constitute duress per minas, adds : “I entertain no doubt that a contract procured by throats and the fear of [459] battery or the destruction of property, may be avoided on the ground of duress.” And he gives the reason: “There is nothing but the form of a contract in such a case without the substance. It wants the voluntary assent of the party tobebound byit.” And Greenleaf in the same section from which we have already quoted, after saying that “a fear of mere battery or of destruction of property is not technically duress,” adds: “but facts of this kind it is conceived are admissible in evidence to make out a defence of fraud and extortion in obtaining the instrument.” It seems that the rule has been some times laid down that when the threat is of an injury for which full compensation can be obtained at law it would not amount to duress, as for instance a threat of injury to property or of a slight injury to person. But in 1 Par. on Con. 5th Ed., 395, it is said “ these distinctions would not now probably have a controlling power in this country, but where the threat, whether of mischief to the person or property, or to the good name, was of sufficient importance «to destroy the threatened party’s freedom, the law would not enforce any contract which he might be induced by such means to make.” The books abound with cases in which conveyances and other instruments have been set aside because procured by the exercise of undue influence upon the party executing them, without the infliction or threat of any physical injury or mischief. 1 Eq. Lea. Ca., 94 et seq. And in the general sense of the term undue influence would seem to be a species of duress, or if this be not quite accurate, the two would at last seem to run together so that the precise lino where one begins and the other stops is not easily definable. But it is to be remarked that in all these cases where contracts are overthrown because entered into under duress by actual injury or threatened injury, or under undue influence, the principle upon which the courts rest is that such contracts lack that voluntary assent which is of the essence of all contracts, and without which, as Story says, the party “ has no free will but stands in vinculis.” 1 St. Eq. Jur., Sec. 239. Whether there was evidence from which the jury in this case were warranted on finding a technical fraud, it is unnecessary to determine. In one [460] sense duress is fraudulent; that is to say, the obtaining of a contract under duress is not a fair and honest transaction. But the jury found that the deed to Carll was obtained by both fraud and duress, and as either would furnish sufficient cause for setting aside the conveyance, if either was warranted by the facts developed on the trial, it is unimportant whether the other finding was warranted or not. We think the facts bring the case within the principle and meaning of the law of duress. Not to recapitulate the testimony in detail, there was in this case evidence that the land in question was the separate property of the respondent, given to her by her father; that after much importunity, abusive treatment, and threats of various kinds, she was induced to make a conveyance of it. That among other things he threatened to abandon her, which she thought “ would be a family scandal.” That it was only on account of Ms threats and • abusive treatment and to keep peace, that she executed the conveyance. Here was clearly a threatened injury to her good name, which is duress ■wijjhin the rule laid down by Parsons. And looking at the reason of things, if, as is well settled, (see case cited from 5 th Denio), a threat of injury to goods and other property, a threat of a battery or of illegal imprisonment, are held, sufficient to constitute duress and to avoid a contract, on the ground that they take away freedom of action, and are calculated to overcome the mind of a person of ordinary firmness, when believed in, it would seem too clear for argument that equal effect ought to be given to a threat by a husband to abandon his wife and turn her out upon the world to shift for herself in the anomalous condition of a wife without a husband. If the degree of injury apprehended, and its almost remediless nature, are to be taken into account, (and not to do so would bo irrational,) then certainly in these respects the abandonment of a wife by her husband is far in excess of a battery to the. person, or a trespass upon the goods, and stands upon stronger ground. We think the instruction was rightly given, and that there was evidence in the case sufficient to warrant the jury in finding for the plaintiff. The order denying the motion to set aside the verdict and for a new trial is affirmed.