62 N.Y.S. 314 | N.Y. App. Div. | 1900
The action was brought to foreclose a mortgage alleged to have been made by the defendant, Martha L. Cox. Among other ■ defenses she set up that the mortgage was given by her to the plaintiff to compound a felony committed by her son, William B. Cox, and that she was induced to execute the mortgage by duress of threats of the imprisonment of her son. The learned judge before whom the case was tried ordered judgment for the plaintiff, thus overruling each of these defenses, and from that judgment this appeal is taken.
It is claimed on the part of Mrs. Cox that the findings of the court, not only as to the question of compounding the felony, but also as to duress, are against the weight of the evidence; and that upon the whole cáse the court should have found that the mortgage was' extorted from her by threats of prosecution of her son for his criminal offense, and that he would be tried and imprisoned therefor, and upon the understanding that if it was given such prosecution would not be had. It is undisputed that shortly before the mortgage was given, the defendant’s son, William B. Cox, who had been in the employ of one Minor, had forged checks on the plaintiff bank, using the name of Minor, and drawn money upon them to1 the amount of over $20,000. These forgeries had been discovered by Minor, who .had sued the bank to recover the money paid out on these checks, and the liability of the .bank for that money was admitted. Cox had left the State and his whereabouts were unknown either to Minor or the officers of the bank. At that juncture one Fisher, who was the brother-in-law of Mrs. Cox, was requested by Cox to procure from his mother some security which would satisfy the claims of the, bank and Minor against him on account of the forgeries. Fisher undertook to do so and entered into communication with Minor, who through his counsel advised him that he relied upon his claim against the bank and for that reason did not wish to enter into any negotiation. Fisher then approached an officer of the bank, who refused to deal with him and sent him to its attorneys, and after some negotiations between them it was concluded tha,t if Mrs. Cox would make, the mortgage- in suit and another mortgage to Mr. Minor, the bank would give to Cox a general release. While these negotiations were going on between the
It is quite true that there was no agreement or arrangement which reached the dignity of an understanding to the effect that the parties to this action would not prosecute Cox criminally if this mortgage was given, but it cannot be denied that the object had in view by Mrs. Cox was to prevent a criminal prosecution of her son, and it is quite apparent that this-object was carried out. She had no other purpose in giving this mortgage than to attain this end. She was in no way liable .for her son’s defalcation, and there was no reason why she should assume any responsibility in that regard except that she desired to prevent his exposure or his prosecution for his crimes. The situation Was ■ such that the criminal charge against him was undoubtedly well founded. That he might be sued by the bank to recover the money was also quite possible. Minor had already sued the bank, and as was said in evidence by his counsel, “ If -she hadn’t paid to the bank this money the suit of Minor against the bank would have come to trial and all the facts in regard to it would have been published, and her son would certainly have been indicted and sent to prison.” The end which she desired was, as is quite evident, to prevent any such result; and it was of no
There can be no doubt that such threats addressed to one who is called upon to make a contract, for the purpose of procuring it, constitute duress, and that the contract thus procured is voidable. (Eadie v. Slimmon, 26 N. Y. 9; Barry v. Brune, 8 Hun, 395; affd., 71 N. Y. 261.)
But it is claimed that though such threats may have been made by Fisher and may have produced upon Mrs. Cox the effect she says they have, yet as neither Minor nor the attorney for the bank participated in them, or so far as appears knew anything about them, they are not responsible for.them, and the mortgage given is valid though obtained through duress. The principle upon which contracts obtained by duress áre avoided is that the party who was coerced to make them never-in fact consented to do so, and that, therefore, the apparent contract does not exist in fact. If that be the case and the contract has in fact no existence, it cannot be binding upon anybody. It is quite true that under certain circumstances the person who was coerced may be estopped from insisting that the contract was not valid;' but unless thus estopped he is at liberty to assert the invalidity of the contract whenever he is called upon to perform it, even though the person thus calling upon him may have heen a bona fide holder for value. The cases upon this head are so numerous that their citation is only necessary to establish it. (Barry v. Brune, 8 Hun, 395 ; S. C., 71 N. Y. 261; Loomis v. Ruck, 56 id. 462; Barry v. Equitable Life Assurance Society, 59 id. 587; Huguenin v. Baseley, 14 Ves. Jr. 273 ; Bridgman v. Green, 2 Ves. 627; Sistare v. Heksacher, 18 N. Y. Supp. 475.) There is no break, so far as I can discover, in the long' line of cases upon this point. If, therefore, the duress was established, it followed that the defendant had shown a good defense, and the complaint should have
The learned justice, therefore, erred in concluding as he did, that that defense was not established, and for this error the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event. • .
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.