Johnson v. Ford. der circumstances which deprives him of the exercise of free will.' Hackley v. Headley, 45 Mich., 569, 8 N. W., 511. It is obvious that, if the act is done contrary to the will and inclination of the injured party, it cannot be the exercise of his free will. His will is subjected to that of another, `and he is compelled to yield and submit to an illegal exaction because of the dominant power. In Parmentier v. Pater, 13 Or., 121, 9 Pac., 59, it is said that to constitute duress by threats 'it is sufficient that they do in fact compel the person threatened to do an act which otherwise he would not have done.' Ordinarily it may be said duress is that degree of constraint or danger either actually inflicted or threatened and impending, sufficient to overcome the mind and will of a person of ordinary firmness. Brown v. Pierce, 7 Wall., 214, 19 L. Ed., 136; Baker v. Morton, 12 Wall., 157, 20 L. Ed., 264; French v. Shoemaker, 14 Wall., 322, 20 L. Ed., 856; United States v. Huckabee, 16 Wall., 431, 21 L. Ed., 464; 1 Chitty, Contr., 11 Am. Ed., 269; 2 Greenl. Ev., section 301, 302; 1 Wharton, Cont. Pref. IV; 2 Wharton, Ev., section 931 1099; 1 Story, Eq., section 239; 2 Pom. Eq. Jur., section 950. The instruction comes fairly within the rule, and the exception thereto is not well taken." The court further said: "The duress complained of rests, we apprehend, in the unfortunate financial condition in which the plaintiff found himself, coupled with the control over the legal title to the land and apparent ownership thereof which the bank had acquired, and its power to prevent a voluntary disposal by the plaintiff to meet his just indebtedness without first obtaining the consent of the bank and complying with such demands as it might impose as a condition of releasing its interest and title to the prop Johnson v. Ford. erty. The duress relied on as grounds of relief, if existing, consisted not so much in threats against the defendant or duress of his person as it did in a wrongful and unjust exercise of control and ownership of the property of the plaintiff being the real estate to which it held title apparently in fee simple, and the right of disposal on any terms it saw fit to impose, or of withholding the land from sale altogether, until compelled to act by a final decree in a proper suit brought to try and determine the rights of the respective parties. The case is one of duress of the property of an individual, rather than duress of his person. The ancient doctrine of duress applied only to duress of the person, such as amounted to a reasonable apprehension of imminent danger to life, limb, or liberty, which was in law deemed sufficient to avoid a contract or enable the injured party to recover back money when so paid. The law, however, has progressed and gradually extended the doctrine so as to recognize duress of property as a species of moral duress which might equally with duress of the person constitute a defense to a contract induced thereby, or entitle a party to recover money paid under its influence. The rule is that when such pressure or constraint is brought to bear as will compel a man to go against his will, and takes away his free agency, destroying the power of refusing to comply with the unjust demand of another, this will constitute legal duress, regardless of manifestations or apprehension of physical force. It is held in Joannin v. Ogilvie, 49 Minn., 564, 16 L. R. A., 376, 52 N. W., 217: There may be duress with respect to real property, as well as personal, so as to render a payment on account of it involuntary, so that the money (so paid) may be recovered back.' In that case it appears a mechanic's Johnson v. Ford. lien was filed against property upon an unfounded claim which the owner paid under protest in order to clear the title of record so that he might consummate a loan on the property which he had negotiated in order to raise money to pay a prior overdue mortgage and other pressing debts, he having no other available means of raising the money. The payment under the circumstances was held to be in consequence of duress of property, and that an action would lie for its recovery. Says the author of the opinion: 'He was so situated that he could neither go backward nor forward. He had practically no choice but to submit to plaintiffs' demand. Had it been goods and chattels which plaintiffs had withheld under like circumstances, there would be no doubt, under the doctrine in Fargusson v. Winslow, 34 Minn., 384, 25 N. W., 942, but that the payment would be held to have been made under duress. But, while filing the lien did not interfere with defendant's possession of the land, yet it as effectually deprived him of the use of it for the purposes for which he needed it as would withholding the possession of chattel property. It has been sometimes said that there can be no such thing as duress with respect to real property, so as to render a payment of money on account of it involuntary. But this is not sustained by either principle or authority. In view of the immovable character of real property, duress with respect to it is not likely to occur as often as with respect to goods and chattels. But the question in all cases is, Was the payment voluntary? And for the purpose of determining that question there is no difference whether the duress be of goods and chattels, or of real property, or of the person. Fraser v. Pendlebury, 31 L. J. C. P. N. S., 1; Pemberton v. Williams, 87 Ill., 15; Johnson v. Ford. Close v. Phipps, 7 Mann. & G., 586; White v. Heylman, 34 Pa., 142; State ex rel. McCurdy v. Nelson, 41 Minn., 24, 4 L. R. A., 300, 42 N. W., 548.' These remarks are very pertinent, and apply with equal force to the situation of the plaintiff in the case at bar. Another case, which seems apropos to the one at bar, was decided by the supreme court of Wisconsin in Guetzkow Bros. Co. v. Breese, '96 Wis., 591, 72 N. W., 45. In that case a lessor refused to join his lessee in executing proofs of loss after fire had destroyed the leased property and indorse drafts payable to them jointly, unless the lessee paid him a sum of money he did not owe. The condition of the lessee's business was such that he was compelled to have the insurance money without prolonged delay, and he thereupon paid the lessor his unlawful exaction. Afterwards the lessee brought suit to recover the money thus paid as having been paid under duress, recovered judgment, and the action was sustained. "The authorities are abundant to the effect that where goods or other property is in possession of one not the owner, who refuses to deliver such property to the owner unless the latter pays him a sum not rightfully due, and the owner in order to obtain possession of his property pays the unlawful exaction, a payment so made is in a legal sense under duress, and may be recovered back in a proper action; and especially is such the case where the wrongful detention is connected with circumstances of hardship or serious inconvenience to the owner. Chase v. Dwinal, 7 Me., 134, 20 Am. Dec., 352; Mays v. Cincinnati, 1 Ohio St., 268; Adams v. Schiffer, 11 Colo., 15, 17 Pac., 21; Chamberlain v. Reed, 13 Me. 357, 29 Am. Dec., 506; White v. Heylman, 34 Pa., 142; Crawford v. Cato, 22 Ga., 594; Central Bank v. Copeland, 18 Md., 305, 81 Am. Dec., 597; Scholey v. Mumford, 60 N. Y., 498. Johnson v. Ford. "m a very early case (Astley v. Reynolds, 2 Strange, 915) the plaintiff pawned plate to the defendant as a pledge for the payment of a sum of money loaned. When desiring to redeem, the defendant demanded and was paid a large sum of money in excess of the amount loaned, with legal interest. Suit was brought to recover the surplus above legal interest. The court of the King's Bench says: 'We think, also, that this is a payment by compulsion. The plaintiff might have such an immediate want of his goods that an action of trover would not do his business. Where the rule volenti non fit injuria is applied, it must be where the party had his freedom of exercising his will, which this man had not. We must take it he paid the money relying on his legal remedy to get it back.' "In other cases it is said, in order to constitute duress, "There must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by adyancing the money. Brumagin v. Tillinghast, 18 Cal., 265, 79 Am. Dec., 176; Radich 1. Hutchins, 95 U. S., 210, 24 L. Ed., 409. In 6 Am. & Eng. Enc. Law, p. 84, with respect to the relations existing between mortgagees and mortgagors, the rule as to payment under duress is stated as follows: ‘If a mortgagee of land who is in possession for condition broken requires that the mortgagor or his assignee pay more than is legally due in order to redeem, and it is paid accordingly for the purpose of preventing a foreclosure, it is such a compulsory payment as entitles the party who so pays to recover it back.' In support of the text is cited Cazenove v. Cutler, 4 Met., 246; Fraser v. Pendlebury, 31 |