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aside the deed that the grantee subsequently obtained a redelivery by duress, as the first delivery vested title in him.57 § 227. Degree or Measure of Duress Required.-The rule of the common law was that, in order to constitute duress by threats, they must have been such as would intimidate a person of ordinary firmness and overcome his mind and will.58 But it was one of the chief defects of the common law that it made no sufficient allowance for the inevitable differences between men, in respect to their intelligence, character, and disposition. Setting up an unvarying and purely abstract standard-such as the conduct to be expected of a "man of ordinary prudence" or a "person of ordinary firmness"-it required all persons whatever to conform to it, on pain of being denied relief in the courts. Thus a person of less than average intelligence and sagacity, provided he was not a "lunatic," could easily and safely be victimized by sharpers, and one of a timid and yielding disposition could expect little aid from the law when coerced by the strong and rapacious. But the viewpoint of equity is different. The "correction of that wherein the law, by reason of its universality, is deficient" is precisely the function of equity. Hence in the forum of chancery the inquiry is not so much whether a normal, average, or ordinary person would have been deceived by the trick practised or the duress exerted, but whether, in the particular case before the court, that result was actually produced. Happily the common-law rule stated above is now almost universally abandoned, and the more just and reasonable rule of equity has taken its place. That is to say, in order to constitute duress such as will render a contract voidable, it is not now considered essential that the means employed should be such as are reasonably necessary to control by fear the free will of a person of ordinary firmness and courage, but the question is whether the particular person under considera

57 McCrum v. McCrum, 127 Iowa, 540, 103 N. W. 771.

58 Walbridge v. Arnold, 21 Conn. 424; Buchanan v. Sahlein, 9 Mo. App. 552; Bryant v. Levy, 52 La. Ann. 1649, 28 South. 191; United States Banking Co. v. Veale, 84 Kan. 385, 114 Pac. 229, 37 L. R. A. (N. S.) 540; Hill v. Thixton, 13 Ky. Law Rep. 333; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805; Ford v. Engleman (Va.) 86 S. E. 852.

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tion was so influenced as to be bereft of the quality of mind essential to the making of a valid contract.59 It makes no essential difference what means are employed to coerce or constrain a party into executing an instrument against his will, provided that the means employed are calculated to produce that effect and do produce it, and anything may constitute duress which prevents the party from acting freely and voluntarily. As otherwise stated, whether a contract is the result of duress depends not so much on the means by which the party was compelled to execute the contract as on the state of mind induced by the means employed, and the fear which made it impossible for him to exercise his free will. Hence, all the circumstances of the particular case bearing on the question of actual intimidation may and should be taken into account, such as the advanced age of the person concerned, his state of health or physical or mental infirmity, sex, his attitude or bearing towards danger in general, all the surrounding circumstances, family conditions, and the reputation of the party making the threats as a violent or dangerous man."2 And threats which induced the execution of an instrument by an old, feeble, infirm, or unprotected person may amount to duress, even though they would have made no impression on a vigorous and resolute person." "Persons of a weak or cowardly nature are the very ones that need protection. The courageous can usually protect themselves. Capricious and timid persons are generally the ones that are influenced by threats, and it would be great injustice to permit them

59 Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417; Nebraska Mut. Bond Ass'n v. Klee, 70 Neb. 383, 97 N. W. 476; Overstreet v. Dunlap, 56 Ill. App. 486; Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069.

60 Schoellhamer v. Rometsch, 26 Or. 394, 38 Pac. 344.

61 McCarthy v. Taniska, 84 Conn. 377, 80 Atl. 84; Fountain v. Bigham, 235 Pa. 35, 84 Atl. 131, Ann. Cas. 1913D, 1185; WilliamsonHalsell-Frazier Co. v. Ackerman, 77 Kan. 502, 94 Pac. 807, 20 L. R. A. (N. S.) 484.

62 International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311; Jordan v. Elliott, 12 Wkly. Notes Cas. (Pa.) 56; Gate City Nat. Bank v. Elliott (Mo.) 181 S. W. 25.

63 Anthony & Cowell Co. v. Brown, 214 Mass. 439, 101 N. E. 1056; Sulzner v. Cappeau, Lemley & Miller Co., 234 Pa. 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421; Hick v. Thomas, 90 Cal. 289, 27 Pac. 208, 376.

to be robbed by the unscrupulous because they are so unfortunately constituted." 64 So, in a case in California it was said: "Circumstances are stated which show great oppression and undue influence, well calculated to overcome the judgment and will of such a person as the plaintiff. An intelligent, strong man would not be likely to be influenced by such representations and threats, and the plaintiff must have known that his [defendant's] assertions as to the verbal contract were untrue, but they were accompanied by threats that he could prove his assertions, and would compel her to adopt his version of the contract, and if she did not, he would get the property from her upon a tax deed. Representations which are very unreasonable, accompanied by threats, may well be held to have influenced a sick, weak-minded, foolish woman, who was without advisers or friends. The material question in such cases is whether, by such fraudulent practices, she has in fact been wronged, although, as a general rule, where people are so reckless of their own interests, courts may not interfere to relieve them from their folly. The weakness of the plaintiff constitutes a very important element in her case." 65 So, in another case: "The law extends its protection to an individual, without reference to whether he is strong or weak intellectually, and refuses to measure his rights by an arbitrary yardstick avowedly applicable only to men of ordinary intelligence, firmness, and courage." In other cases substantially the same rule has been otherwise stated as follows: The test is not whether the threats would have intimidated a man of ordinary firmness, nor whether they should reasonably have intimidated a person of such a degree of firmness as the one in question did actually possess, but whether the person in question, presumably of ordinary firmness, did actually and reasonably fear injury from the execution of the threats, and act under the influence of that fear. And again, the question of yielding to duress does not depend on the probable or physical ability of the party complaining to defend

64 Parmentier v. Pater, 13 Or. 121, 9 Pac. 59.

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65 Hick v. Thomas, 90 Cal. 289, 27 Pac. 208, 376.

66 Nebraska Mut. Bond Ass'n v. Klee, 70 Neb. 383, 97 N. W. 476. 67 Rossiter v. Loeber, 18 Mont. 372, 45 Pac. 560.

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himself against the threatened imprisonment or other injury. The party threatened is not required first to submit to wager of battle and be overcome before the duress is complete. But many of the modern decisions have gone far beyond even these principles, rejecting altogether the common-law tests, and holding that relief in equity may be granted to a party who executed a contract or other instrument under the compelling influence of harshness, cruelty, distress, financial embarrassment, or apprehensions, and believing that he was unable to help himself or to avoid doing what was demanded of him, although the circumstances would not amount to technical duress, or although there was no actual duress whatever in the sense of the common law.69

Much less force or putting in fear by a husband will amount to coercion which will avoid the deed of his wife than would be necessary if it proceeded from a stranger.70 And a less measure of severity or compulsion will suffice to set in motion the powers of a court of equity when exerted upon a person of naturally feeble intelligence, or whose mind. is confused and his judgment unsettled, by the terror induced by his situation or by the threats made against him."1 Thus, a deed may be set aside upon showing that it was induced by a systematic and continuous course of cruel and inhuman treatment, as a result of which the grantor's health declined and his mental condition became such that he was incapable of transacting ordinary business understandingly. And so, to an action on a note by the payee against

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68 King v. Rowan, 1 Tenn. Cas. 269.

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69 Central Bank v. Copeland, 18 Md. 305, 81 Am. Dec. 597; Buford v. Louisville & N. R. Co., 82 Ky. 286; Lappin v. Crawford, 221 Mo. 380, 120 S. W. 605; Faulkner v. Faulkner, 162 App. Div. 848, 147 N. Y. Supp. 745; Rees v. Schmits, 164 Ill. App. 250; Hàrris v. Cary, 112 Va. 362, 71 S. E. 551, Ann. Cas. 1913A, 1350; Davis v. Luster, 64 Mo. 43; Lomerson v. Johnston, 44 N. J. Eq. 93, 13 Atl. 8. Contra, Miller v. Miller, 68 Pa. 486.

70 Richardson v. Hittle, 31 Ind. 119; Royal v. Goss, 154 Ala. 117, 45 South. 231.

71 Kuelkamp v. Hidding, 31 Wis. 503; Anderson v. Anderson, 122 Wis. 480, 100 N. W. 829.

72 Huston v. Smith, 248 Ill. 396, 94 N. E. 63.

the maker it is a good defense, even at law, that the note was obtained from the maker when he was delirious, for the services of the payee as a physician, when in fact he was not a physician, and his medical attentions to the maker were actually injurious." But no amount of persuasion, entreaty, advice, or urgency, to influence one to exercise his will to some particular end, will amount to duress," and the mere fact that one executed an instrument reluctantly and protesting against it does not show that he was so far under compulsion as to cease acting as a free moral agent.75 And again, a person cannot have his deed or mortgage avoided on the ground of duress, when the motive which prompted him to execute it was not alone fear or coercion, but also the advice of his lawyer, who told him to sign it and that it could afterwards be set aside."

Moreover, to constitute duress, the making of threats must not only be shown, but it must also appear that they did actually operate upon the mind of the person concerned and constituted the controlling motive for the performance of the act sought to be avoided." And even though duress existed, it will not ordinarily invalidate a contract entered into with full knowledge of all the facts and with ample time for deliberation and for consultation with friends or advisers. And to avoid a deed of a wife for duress, it is not enough to show that her husband was a violent, turbulent, and intemperate man in his habits, and prone to quarrels and violence when drunk, and that he was domineering towards his wife, and that she was in the habit of obeying all his commands, but the duress must be clearly and distinctly proved."

73 Peyton v. Rawlens, 4 Hayw. (Tenn.) 77.

74 Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016; Zuccarello v. Randolph (Tenn. Ch. App.) 58 S. W. 453; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657; International Text Book Co. v. Anderson, 179 Mo. App. 631, 162 S. W. 641.

75 Goggin v. Kansas Pac. R. Co., 12 Kan. 416.

76 Detroit Nat. Bank v. Blodgett, 115 Mich. 160, 73 N. W. 120, 885. 77 Wilkerson v. Bishop, 7 Cold. (Tenn.) 24.

78 Mayhew v. Phoenix Ins. Co., 23 Mich. 105; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657.

79 Freeman v. Wilson, 51 Miss. 329.

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