63 Tenn. 530 | Tenn. | 1874
delivered the opinion of the Court.
The original bill was filed on the 31st of July, 1865, for the purpose of having the business of the Union Bank settled and closed up in the Chancery Court at Nashville.
The cross-bill was filed on the 26th of June, 1869, by the executor and executrix of ¥m. H. Long, deceased, for the purpose of setting aside a settlement made by ¥m. H. Long with the branch bank at Memphis, on the 28th of March, 1862, upon the allegation that the settlement was procured by duress, coercion, and undue influence. The Union Bank demurred to the cross-bill, upon the ground that no such duress, coercion, and undue influence were alleged as could authorize the Court to set aside the settlement.
The controlling question in the case is, whether the facts alleged in the bill constitute such duress, or coercion, or undue influence as entitled complainants in the cross-bill to have the contract of settlement, which they admit was made on the 28th of March, 1862, set aside?
The facts alleged in the bill, on which the question arises, are as follows:
Wm. H. Long, the testator, died on the 4th of May, 1867, in Madison County, Tennessee, where he had long lived, aged about seventy years; that for many years before his death he was much enfeebled in body and troubled in mind, in consequence of the effects of old age, and the late civil troubles; that he had been for many years a depositor in the branch of the bank at Memphis, and that on the 28th of March, 1862, he had on deposit $31,656 34, and that a settlement appears on the books of the bank of that date showing a withdrawal of his deposit, but which settlement their testator made under duress, coercion, and undue influence, as will appear fully in the further statements and allegations of their cross-bill.
After referring historically to the policy of the Confederate government in resorting to the issuance of treasury notes as a means of prosecuting the late war, and in forcing the currency into circulation, if necessary, by military force, complainants allege that in consequence of this settled policy, and the active co-opera
Complainants allege that somewhere about the 20th of March, 1862, when the excitement about Confederate
Complainants allege that on his arrival at the bank he was required to withdraw his deposit at once, and to receive it all in Confederate money, which, for the time he declined, and attempted to waive or delay the matter; that the bank persistently demanded the withdrawal of the deposit in that description of. money, and that their testator protested against taking it, but demanded payment in the notes of said bank, and this was kept up several days; that their testator, seeing no way to waive or longer delay the matter, and fearing the results of a positive refusal, did, still under protest, on the 28th of March, *1862, withdraw his deposit from said branch; that having in the meantime induced said bank, on his repeated assurances that Confederate money would be wholly worthless to him, to let him have some small amount in other money, he received from said bank $3,656 34 in the notes pf Southern banks, and the balance, $28,000, in worthless Confederate notes; that he left said Confederate money in Memphis, with an officer in the Bank of West Tennessee, who has recently informed complainants that he carried the money South, and invested part of it in Confederate bonds, and had the balance, in packages.
Complainants alleged that soon after the close of the war their testator engaged an attorney to file a bill, or take necessary steps to collect the amount due him from the bank, but said attorney died before instituting proceedings, and that he spoke to two others to undertake his case, and they agreed to do so, but for various causes intervening, they did not get ready to begin suit in the life-time of testator.
Assuming the allegations of the bill to be true, so far as they state facts, the question is, do they show that the testator made the settlement and withdrew his deposit from the bank on the 28th of March, 1862, in consequence of duress, coercion, or undue influence?
In 2 Greenleaf on Ev., 283, it is laid down that “ by duress, in its more extended sense, is meant that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” This definition of duress was adopted in the case of Brown v. Pierce, 7 Wall., 214.
In the case of McSween v. Miller, decided at Knoxville, at September Term, 1867, Judge Hawkins said: “The controlling question is, was the threat of such a character as, under the circumstances surrounding the parties at the time, was sufficient to overcome the mind and will, or, in other words, to destroy the free agency of a person of ordinary firmness.”
In the unreported case of Hiller v. Wood, decided
And in Rollings v. Cate, 1 Heisk., 102, this Court said: “To hold that every citizen who passed or received Confederate treasury notes, under some general or indefinite apprehension that his failure to recognize the currency would give offence to the government, or any of its officers, acted under duress, and that his action can now be repudiated and disowned would open the flood-gates of litigation, and unsettle all dealings and transactions in this State in which the currency was employed. Nothing short of duress in its legal sense can invalidate executed contracts.”
The question whether the testator of complainants made the settlement and withdrew his deposit under duress or coercion, must be determined by applying the facts to the rules laid down in the authorities referred to. The ‘controlling question is, did the testator make the settlement and receive the deposit under such apprehension of impending danger, in view of all the surrounding circumstances, as deprived him of his free agency? In determining this question, it is proper to look to the age and condition of the testator, as well as to his personal character, so far as the same is in proof. He died in 1867, at the age of seventy, he
It does not appear, after testator reached Memphis, that he was in any way influenced or controlled by the alleged terror there prevailing — no such allegation is made. It appears that when he called for his deposit the bank was ready to pay in Confederate money, but testator refused to receive it; yet it is not alleged that the bank made any threat of resorting to the military, or even alluded to the fact that there was any military order on the subject. Testator refused to receive the Confederate money, and the bank declined to pay in any other money. Testator left and returned, and renewed the negotiation for eight days, and - finally received $28,000 in Confederate notes, and $3,656 in
We can see in the transaction no evidence that testator acted under sense of impending danger, produced either by threats of the bank, or fears that he would incur the penalties of any military orders.
Applying the rules of law already cited to the facts of the case, and giving full force to the fact that testator was an old man of sixty-five years, and that there was a general public excitement on the subject of Confederate money, we are unable to see in the transaction any ground on which to hold that there was duress, coercion, or undue influence on the part of the bank. We are, therefore, of opinion that the Chancellor erred in overruling the demurrer, but the same ought to have been sustained and the bill dismissed which is now done.