163 P. 423 | Or. | 1917
Lead Opinion
Opinion by
Considerations of policy and morality dictate that no person shall make a trade of a felony, or if he is aware that a crime has been committed, he shall not convert that crime into a source of profit or benefit to himself. The defendants knew Rostad was guilty of a felony; they knew he was unable to make restitution; they knew the only way. to recoup themselves was to induce his wife to execute the documents in question-
“The bankers admit, most clearly and distinctly, that they all knew that it was a case of transportation for life. It is perfectly clear that they did not pretend that the father was liable. What remained then as a motive for the father? The only motive to induce him to adopt the debt was the hope that by so doing he would relieve his son from the inevitable consequences of his crime. The question, therefore, is whether a father appealed to under such circumstances, to take upon himself an amount of civil liability, with the knowledge that, unless he does so, his son will be exposed to a criminal prosecution, with the certainty of conviction,caribe regarded as a free and voluntary agent? I have no hesitation in saying that no man is safe, or ought to be safe, who takes a security for the debt of a felon, from the father of the felon under such circumstances. A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract that should be based upon the free*496 and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing, and leaving his son in that perilous condition, or of taking on himself the amount of a civil obligation. I have, therefore, in that view of the case, no difficulty in saying that, as far as my opinion is concerned, the security given for the debt of the son by the father under such circumstances was not the security of a man who acted with that freedom of power of deliberation that must, undoubtedly, be considered as necessary to validate a transaction of such description.”
With how much greater force does this language apply to the plaintiff in the present case. In the case cited the party who was induced to sign the instrument was a man of mature years and accustomed to business. In the case at bar it was a helpless woman, without counsel, overpowered by the most distressing situation that a woman could be placed in, and terrified for the future of her husband, her own future, and that of her little children. The case does not differ in principle from Baldwin Co. v. Savage, 81 Or. 379 (159 Pac. 80). In that case the agent for plaintiff informed the father of the embezzler that his son had appropriated his employer’s money, and that he would be prosecuted unless he could obtain security for the amount embezzled. Here, although more guarded language was used, the implication was the same. In the opinion in that case Mr. Chief Justice Moore cites with approval Bentley v. Robson, 117 Mich. 691 (76 N. W. 146), the syllabus of which is as follows:
“A mortgage given by a wife at the instance of her husband, who, unknown to her, had committed a forgery, and thereby defrauded an insurance company, and had upon its discovery been required, though ill,*497 to accompany an officer from Ms house, and, after a consultation with the representative of the company and the prosecuting attorney, in which the latter had suggested that he ask his wife to give a mortgage to the company, had returned home in the custody of the officer, accompanied by the assistant prosecutor, and had told her that she would have to sign the mortgage to save him from jail, and which mortgage was signed by her on this assurance, without her knowing the nature of the charge against him, is void for duress, although no threats were employed by the officers to induce its execution.”
The cases cited in Baldwin v. Savage, 81 Or. 379 (159 Pac. 80), tend strongly to support the contention of plaintiff in the case at bar.
The decree of the Circuit Court is affirmed.
Affirmed.
Rehearing
Modified March 27, 1917.
On Petition for Rehearing.
(163 Pac. 987.)
Decree modified on rehearing.
Mr. Charles A. Johns and Mr. Claude M. Johns, for the petition.
Messrs. Clarke, Skulason & Clark, contra.
Department 2. Opinion by
The decree will, therefore, be modified so as to direct the delivery to her of the notes recited in the principal' opinion and declaring her conveyances of the tract in the State of Washington and the power of attorney as to the last-named tract of no effect so far as it relates to her'interest in that tract, but allowing the conveyances to stand as to the two parcels of property first
Modified on Rehearing.