Bray v. Thatcher

Scott, Judge, delivered the opinion of the court. This is not an action for the recovery of money only, or of specific real or personal property. The object of the petition is to set aside conveyances of land and procure re-conveyances on the grounds of violence and fraud practiced in obtaining them. Such being the aim of the suit, it was not properly tried by a jury. It is obvious that the responsibility of trying the action has been shifted from the court and imposed on a jury against the provisions of law. It is no answer to this to say that the court may have adopted the finding of the jury as its own, for courts frequently acquiesce in the verdict of juries, where, had they been the triers of the fact, their verdicts would have been different. It is clear that this cause has not been tried by the tribunal appointed by law. There is another difficulty in the way of this proceeding. Causes which by law are to be tried by a jury can only have a misapplication or mistake of the law of the case reviewed in this court by bills of exceptions containing the instructions complained of. In such cases, if there is no bill of exceptions containing the instructions, or if no instructions are asked, and the wrongful misapplication of the law to the facts is the only error of which complaint is made, there can be no reversal; the judgment will be approved. In cases, however, where by the law the,trial must be by the court, a majority of this court holds that the case may be reviewed here although no declarations of law as applicable to the facts were made in the inferior tribunal. If a case properly triable by the court is improperly submitted to a jury, what is to be the rule ? (R. C. 1855, p. 1261.) We do not conceive that the petition is obnoxious to the charge of multifariousness. The circumstance that the parties concurred in a joint act which resulted in the injury of which the plaintiff complains distinguishes this from ordinary cases. If the two defendants had taken a joint deed as [133] tȎausing/he the reward of their fraud and violence, there would have been no question as to the propriety of tbe petition. The fact that they shared the spoil between themselves can not affect the remedy of the plaintiff. If the defendants Thatcher and Smith had passed their titles to innocent purchasers, it is conceived that all the parties to the wrong and violence would in solido have been liable to make good the loss sustained by the plaintiff; and being thus liable^i.hflrocfS^be no impropriety in joining them as defendag If by separate acts of violence on separate occasions, ferent persons, the plaintiff had been his property, there would have been an ing these several causes in one action; but of whom complaint is made united in the injury, they were all jointly liable, and the d^^SoToT the spoil among themselves can not affect the remedy of the plaintiff. Whatever may be the law as to the plea of duress when set up as a defence to an action on a bond, it can have no application to this suit, which is one in the nature of a bill in equity to set aside deeds obtained by violence and fraud. But we see no ground on which it can be maintained that the facts in this case would not support a strict plea of duress as framed in the old books of entries. The mob menaced the life of the plaintiff and actually used violence towards him. The defendants were present, adopted and gave countenance to their lawless acts, which were done for their benefit. To hold that conveyances obtained under such circumstances could not be set aside would be a reproach to any system of jurisprudence. The grounds on which courts of equity proceed furnish ample ground to administer to the plaintiff the relief he seeks. Those courts relieve against fraud, violence and imposition; and a grosser outrage than that presented by the record in this case rarely comes under the cognizance of courts of justice. It was a fraud in the defendants to take advantage of the violence of the mob to extort deeds from [134] the plaintiff against bis will and on their own terms. For the reason giren in the former part of this opinion, the judgment will be reversed and the cause remanded.