127 P. 987 | Or. | 1912
delivered the opinion of the court.
It should be stated that this complaint does not allege that the conveyances in question were executed for the purpose of compounding a felony. Neither does it allege any felony to have been committed by Louis A. Guinn, but on the other hand avers that he was unjustly accused. Neither of the officers of the company made any statement to Mrs. Guinn as to the circumstances. Her information was obtained from her husband.
David Eccles testified, in effect, that, after making an investigation and finding the discrepancies, he called Guinn to his house and asked him how many brasses had been charged to the company which were not received. At first Guinn denied the charge, but afterwards told him the different dates and the number of instances when 20 brasses would be received, and invoiced at the Baker Iron & Supply Company’s office at 30 or 40. Eccles stated that he told Guinn to go home and think up the other items, and that would be all right with him if he told the truth. On the next evening Guinn told him of more instances, and they agreed upon the number and weight of the brasses, and settled as to their value, at the purchase price, making the amount $705.38, after deducting $196, one-half of the amount, which Guinn had divided with Swinger, Eccles’ brother-in-law, who was equally concerned in the transaction. Guinn said
The testimony does not show that the prosecution of the offense, committed by Guinn, was restrained in consideration of the conveyances, but rather in order to save any publicity of the matter as to Swinger. It would seem that Guinn must have understood this, and that his conversation with Eccles did not wholly warrant the statement he made to his wife that Eccles would send him to the penitentiary. Whatever coercion of Mrs. Guinn, in the execution of the conveyances, is chargeable to the defendants is due to their adopting the transaction by accepting the deed which her husband had procured her •to execute. This is indicated by the statement of Geddes, who was cognizant of the transaction, at the time the deed was delivered, that “this is in your wife’s name.”
In Compton v. Bunker Hill Bank, 96 Ill. 301 (36 Am. Rep. 147), a wife executed and acknowledged a deed conveying her land to a bank, whose money her husband had embezzled to a large amount, to save him from arrest and criminal prosecution. It appeared that the wife was urged to do this by her husband and brother, who informed her that if she would make the conveyance the bank would hot prosecute. The bank had no knowledge of such representations being made to induce the execution of the deed, and authorized none to be made, and none of its officers had any conversation with the creditor on the subject. It was held that a court of equity would not set the deed aside for fraud, duress, or imposition.
It was held in Schultz v. Catlin, 78 Wis. 611 (47 N. W. 946), that threats of criminal prosecution made to a brother, and by him at plaintiff’s request communicated to his sister in order to secure her signature to a note to compound a felony, constituted duress of the sister for which she might avoid the note.
In Giddings v. Iowa Savings Bank, 104 Iowa, 676 (74 N. W. 21), defendant demanded of a husband a mortgage on his homestead which was in his wife’s name, claiming that he was a defaulter, and threatening criminal prosecution unless he gave the mortgage. Evidence of the conversation between husband and wife that he told her of the interview was held admissible in an action by them for possession of the mortgage on the ground of duress. It was also held that, where the fears or affection of a wife are worked upon through threats made against her husband, and she is induced thereby, against her will, to convey her property to secure his debt, there is duress as to her, even though the debt was valid and the threat was of lawful prosecution for a
Plaintiff testified to the effect that her husband told her that Eccles required him to pay the $705.38, and that, if he did not do so, he would have to arrest him and send him to the penitentiary; that her husband had no. money, and asked her if she would be willing to sign over the home in payment; that the affair made her sick, but that she signed the deed in order to avoid the disgrace and dishonor of having her husband sent to the penitentiary, though she was very reluctant about doing so. If the conclusion of the trial court that the first deed was executed by plaintiff while she was under duress and was not of her own free will was correct, we think the transaction was ratified by Mrs. Guinn by the execution of the quit-claim deed August 29, 1907, and the delay in disaffirming the conveyance for nearly three years. The person subjected to duress may see fit to ratify the transaction, and may do so after having become competent to contract. Thus a deed given under duress may be ratified, as by a quitclaim, or by acquiescence for an unreasonable time after an opportunity to avoid the contract. Page, Contracts, § 269; Miller v. Minor Lumber Co., 98 Mich. 163 (57 N. W. 101: 39 Am. St. Rep. 524). Where a deed has been executed under duress, and an unreasonable length of time has elapsed after the execution of the deed before steps are taken to set the same aside, the transaction is ratified.
The conveyance of the two lots on August 29, 1907, at the same time of the conveyance of lot 3 for $195, appears in all its features to have been an ordinary transaction. Mr. Guinn obtained legal advice in regard to the matter before the execution of the first deed, and Mrs. Guinn, prior to the execution of the quitclaim deed, had ample time to determine whether or not it was her desire to secure her husband’s indebtedness. There was no haste exhibited in the second transaction, and no threats made or communicated at that time. After that she acquiesced in each of the transactions for nearly three years. In the meantime Geddes, one of the officers of the company who purchased lot 3 and obtained the quitclaim deed, had died. Mrs. Guinn did not explain her delay. True she said that, at the time of signing the quitclaim deed, she was under the same fear as when the first deed was executed, but that is at most a conclusion. The delay in bringing suit was attempted to be explained by Louis A. Guinn on cross-examination. But, while he appears to be the moving spirit in the disaffirm-
The decree of the lower court will therefore be affirmed. Affirmed.