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1. A mortgage will not be set aside because of duress exercised upon the mortgagor in its procurement, such duress not being participated in by the mortgagee.

[See note on this question beginning on page 864.]

-coercion threats of arrest.

2. Threats of a lawful arrest for an offense which has actually been committed is not in itself a sufficient ground for the cancelation of a mortgage which has been executed as a result of such threats, and made to secure the maker of the threats for the loss occasioned to him by the commission of such crime.

[See 9 R. C. L. 719.]

Headnotes by WEST, J.

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- fraud effect.

3. The fact that a wife was induced to execute a mortgage by fraud and deception on the part of her husband, in which the mortgagee did not participate and of which he had no knowledge, does not affect its validity. [See 19 R. C. L. 296, 297.]

APPEAL by defendants from a decree of the Circuit Court for Hamilton County (Horne, J.) in favor of complainant in a suit to foreclose a mortgage. Affirmed.

The facts are stated in the opinion of the court.
Mr. C. D. Blackwell for appellants.
Mr. S. S. Sandford for appellee.
West J., delivered the opinion of
the court:

This is an ordinary mortgage foreclosure. The mortgage sought to be foreclosed covers certain described lots in the town of Jasper. The bill to foreclose is in the usual form, and, while the mortgage is

not copied in the record, it is referred to in the bill as a mortgage deed, and the bill recites that the original mortgage is attached to and made a part of the bill. We assume, therefore, that it is in proper form and duly executed.

The decree was for the complainant, and the defendants appeal. Two questions are presented for

(- Fla., 81 So. 154.)

The first as

our consideration. signment of error questions the soundness of the order granting the motion to strike a certain paragraph from the answer of the defendant John Smith. By the stricken paragraph of his answer this defendant averred: That, at the time of the execution of the mortgage sought to be foreclosed, he was president of the complainant bank. "That the duly qualified bank examiner, commissioned to examine state banks in the state of Florida, pursuant to said commission, came to examine complainant bank. The notes described in said amended bill of complaint and also described in said mortgage were then and there held by complainant bank, and the said examiner then and there informed this defendant that the said notes were unsatisfactory paper for said complainant bank to have and blamed this defendant with the fact that complainant then and there had such paper among its assets, and led this defendant to believe that he had violated the law in permitting said bank to have such paper among its assets, and told this defendant that he had to give said mortgage to secure the payment of the same, and he led this defendant to believe that he would prosecute him criminally if he did not execute said mortgage, and this defendant did then and there, by reason of the statements made to him by said examiner, believe that he violated the Banking Laws of the state of Florida, and had made himself liable to criminal prosecution, and this defendant did then and there, by reason of the statements made to him by said examiner, believe that said examiner was going to prosecute him if he did not execute said paper, and this defendant avers that it was through fear of this prosecution at the hands of said examiner he executed said mortgage at the request of said examiner."

There are two defects in this paragraph of the answer. In the first place, there is no allegation that

there was no basis for the alleged
threatened prosecution in the trans-
actions referred to
between this

Mortgage

arrest.

de- coercionfendant and the threats of bank (1 Jones, Mortg. § 623; Englert v. Dale, 25 N. D. 587, 142 N. W. 169); and, in the second place, there is no allegation that the mortgage was extorted from him by means of duress practised upon him by the mortgagee (J. M. Robinson, N. & Co. v. Randall, 147 Ky. 45, 143 S. W. 769; Moog v. Strang, 69 Ala. 98). It will be observed that the alleged prosecution that defendant feared was at the hands of a "duly qualified bank examiner commissioned to examine state banks of the state of Florida." innocence of There is no sugges- mortgagee. tion of a threat of prosecution by the complainant, to whom the mortgage was given. There was, therefore, no error in this ruling.

-duress

The second assignment assails the order granting the motion to strike a paragraph of the answer of the defendant Florence paragraph which was stricken is as Smith. The follows: "The husband of this defendant, John F. Smith, presented said mortgage to her and requested her to sign the same; and to induce her to sign the same he then and there fraudulently and deceitfully stated to her that it did not convey and mortgage her separate statutory property and estate; that said statement that said mortgage did not convey and mortgage her said separate statutory property and estate was false and fraudulent and known by the said John F. Smith to be false and fraudulent when he made it, but this defendant did believe said statement to be true at the time she executed said mortgage and she did rely on said statement and did execute said mortgage without making any investigation; that this defendant did not know the description of her said separate statutory property and estate and did not know that it was described as lots numbered 97 and 98 of

Tompkins survey of the town of Jasper, Florida, and relying on and believing said statements she did execute said mortgage without making any inquiry as to the land conveyed and mortgaged by said mortgage, and she executed the same believing that it did not convey and mortgage her separate statutory property and estate, and this defendant further says that when the said mortgage was delivered to complainant bank by the said John F. Smith she was then still unadvised and did not know that the same did convey and mortgage her separate statutory property and estate."

It is apparent that the alleged fraud practised upon this defendant was the fraud of her husband, and not the fraud of the complain

ant.

There is no suggestion that the complainant participated in the fraudulent representations by which she was induced to sign the mortgage, or that it even knew of such representations. Neither is there a suggestion that she might not by the exercise of ordinary care have discovered before the delivery of the mortgage that the two lots which she claims as her seperate

statutory property were included in the mortgage.

-fraud-effect.

It seems to be well settled that the fact that a wife was induced to execute a mortgage by fraud and deception on the part of her husband, in which the mortgagee did not participate and of which he had no knowledge, does not affect its validity. Pacific Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852; Walker v. Nicrosi, 135 Ala. 353, 33 So. 161; Mohr v. Griffin, 137 Ala. 456, 34 So. 378; Bode v. Jussen, 93 Neb. 482, 140 N. W. 768; Riggan v. Sledge, 116 N. C. 87, 20 S. E. 1016; Butner v. Blevins, 125 N. C. 585, 34 S. E. 629; Shell v. Holston Nat. Bldg. & L. Asso. Tenn. 52 S. W. 909; Tracy v. Harris, 5 Ga. App. 392, 63 S. E. 233. It follows that this assignment must also fail.

It is also urged that there was but this contention is settled adno consideration for the mortgage; versely to defendants by § 2959, General Statutes of 1906, Compiled Laws 1914.

The decree will be affirmed.
Taylor, Whitfield, and Ellis, JJ.,

concur.

Browne, Ch. J., absent.

ANNOTATION.

Validity of contract executed under duress exercised by third person.

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41 Ark. 421; Goodrum v. Merchants & Planters Bank (1912) 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511; Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187.

California.-Brumagim v. Tillinghast (1861) 18 Cal. 265, 79 Am. Dec. 176 (dictum); Garrison v. Tillinghast (1861) 18 Cal. 404 (dictum).

Florida. SMITH V. COMMERCIAL BANK (reported herewith) ante, 862. Georgia. - Hughie V. Hammett (1898) 105 Ga. 368, 31 S. E. 109; Johnson v. Leffler Co. (1905) 122 Ga. 670, 50 S. E. 488.

V.

Illinois. - Marston v. Brittenham (1875) 76 Ill. 611; Ladew v. Paine (1876) 82 Ill. 221; Schwartz Schwartz (1888) 29 Ill. App. 516. Indiana.-Line v. Blizzard (1880) 70 Ind. 23; Gardner v. Case (1887) 111 Ind. 494, 13 N. E. 36.

Iowa.-Green v. Scranage (1865) 19 Iowa, 461, 87 Am. Dec. 447.

V.

Kentucky. Fightmaster Levi (1891) 13 Ky. L. Rep. 412, 17 S. W. 195; Frasure v. McGuire (1902) 23 Ky. L. Rep. 1990, 66 S. W. 1015; Long v. Branham (1907) 30 Ky. L. Rep. 552, 99 S. W. 271; Ely v. Hartford L. Ins. Co. (1908) 128 Ky. 799, 110 S. W. 265; J. M. Robinson, N. & Co. v. Randall (1912) 147 Ky. 45, 143 S. W. 769; Fears v. United Loan & Deposit Bank (1916) 172 Ky. 255, 189 S. W. 226. Compare Shepherd v. Shepherd (1917) 174 Ky. 615, 192 S. W. 658, infra, II. h. And see Luke v. Gunnell, 1 Ky. Ops. 258, as set out in Cyc. Supp. (1914-1918) p. 1141, title, Deeds, p. 584, note 82.

Maryland.-Baltimore v. Lefferman (1846) 4 Gill, 425, 45 Am. Dec. 145 (dictum).

Massachusetts.-Fairbanks v. Snow (1887) 145 Mass. 153, 1 Am. St. Rep. 446, 13 N. E. 596; Morse v. Woodworth (1892) 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525.

Michigan. Boydan v. Haberstumpf (1901) 129 Mich. 137, 88 N. W. 386. Mississippi.-Johnston v. Wallace (1876) 53 Miss. 331, 24 Am. Rep. 699. Missouri. Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500; McCormick v. St. Louis (1901) 166 Mo. 315, 65 S. W. 1038.

4 A.L.R.-55.

Nebraska.-Bode v. Jussen (1913) 93 Neb. 482, 140 N. W. 768; Jussen v. Bode (1913) 93 Neb. 490, 140 N. W. 771.

New Jersey.-Homœopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103; Mullin v. Leamy (1911) 80 N. J. L. 484, 79 Atl. 257; Travis v. Unkart (1916) 89 N. J. L. 571, 99 Atl. 320, Ann. Cas. 1917C, 1031.

New York.-Sherman v. Sherman (1892) 47 N. Y. S. R. 404, 20 N. Y. Supp. 414 (but see other New York cases infra).

North Carolina.-Butner v. Blevins (1899) 125 N. C. 585, 34 S. E. 629 (rule statutory); Davis v. Davis (1907) 146 N. C. 163, 59 S. E. 659 (rule statutory).

Oklahoma. - See Piekenbrock V. Smith (1914) 43 Okla. 585, 143 Pac. 675, and Huston v. Domeny (1916) Okla. -, 173 Pac. 805.

Oregon.-Guinn v. Sumpter Valley R. Co. (1912) 63 Or. 368, 127 Pac. 987. Pennsylvania.-Singer Mfg. Co. v. Rook (1877) 84 Pa. 442, 24 Am. Rep. 204.

Tennessee.-Finnegan v. Finnegan (1876) 3 Tenn. Ch. 510; Shell v. Holston Nat. Bldg. & L. Asso. (1899) Tenn. 52 S. W. 909.

Texas. Dimmitt v. Robbins (1889) 74 Tex. 441, 12 S. W. 94.

Virginia. - Talley (1872) 22 Gratt. 888.

V. Robinson

West Virginia.-Dunfee v. Childs (1906) 59 W. Va. 225, 53 S. E. 209. England. (1509) Keilw. 154, pl. 3, 72 Eng. Reprint, 327.

"Duress to avoid a contract must be the act of the other party himself or his agent, or must be imposed with his knowledge and taken advantage of by him for the purpose of obtaining the agreement. Duress by a third person will not avoid a contract made with a party who was not cognizant of it." Ely v. Hartford L. Ins. Co. (1908) 128 Ky. 799, 110 S. W. 265.

In Fairbanks v. Snow (1887) 145 Mass. 153, 1 Am. St. Rep. 446, 13 N. E. 596, in overruling the exception to a refusal to rule that knowledge or lack of knowledge upon the part of the obligee that the instrument in suit had been procured by duress was immaterial, Holmes, J., adopted the

above-stated general rule, and in the course of his argument said: "No doubt if the defendant's hand had been forcibly taken and compelled to hold the pen and write her name, and the note had been carried off and delivered, the signature and delivery would not have been her acts; and if the signature and delivery had not been her acts for whatever reason, no contract would have been made, whether the plaintiff knew the facts or not. There sometimes still is shown an inclination to put all cases of duress upon this ground. But duress, like fraud, rarely, if ever, becomes material, as such, except on the footing that a contract or conveyance has been made which the party wishes to avoid. It is well settled that where, as usual, the so-called duress consists only of threats, the contract is only voidable.

This rule necessarily excludes from the common law the often-recurring notion, just referred to, and much debated by the civilians, that an act done under compulsion is not an act, in a legal sense.

Again the ground upon which a contract is voidable for duress is the same as in the case of fraud, and is that, whether it springs from a fear of from a belief, the party has been subjected to an improper motive for action. But if duress and fraud

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are so far alike, there seems to be no sufficient reason why the limits of their operation should be different. A party to a contract has no concern with the motives of the other party for making it, if he neither knows them nor is responsible for their existence. It is plain that the unknown fraud of a stranger would not prevent the plaintiff from holding the defendant." However, there is some authority to the effect that one who has executed a contract while under duress practised by a third person may avoid the same even as against an innocent obligee.

Thus in 1 Sheppard's Touchstone, 61, it was said that "if one threaten another to kill or maim him if he will not seal a deed to a stranger, and thereupon he do so, this is void as if it were to the party himself."

In Thoroughgood's Case (1582) 2 Coke, 9, 76 Eng. Reprint, 408, 6 Eng. Rul. Cas. 202, it was said obiter, that "if a stranger menace A to make a deed to B, A shall avoid the contract which he made by such threats, as well as if B himself had threatened him."

And in National Bank v. Cox (1900) 47 App. Div. 53, 62 N. Y. Supp. 314 (motion to withdraw appeal granted in (1901) 165 N. Y. 639, 59 N. E. 1127), it was held that, in a suit to foreclose a mortgage, the mortgagor could avoid the same by proof that it was executed under duress exercised by a third person, although neither the mortgagee nor his agent participated in the duress or knew anything about it. In this case the court held that the mortgage was "voidable," but then proceeded to argue as though it were absolutely void, saying: "The principle upon which contracts obtained by duress are 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 been a bona fide holder for value." The facts as found by the court were that the mortgagee's son had obtained money from plaintiff bank on forged checks, that the mortgage was executed by the mother at the instance of a friend of the son while she was under duress, the friend having made representations with respect to criminal punishment, etc.; but that neither the bank nor its attorney who handled the matter either authorized the statements made by the friend, or knew anything about them. There seemingly being no distinguishing features, the decision must be regarded as clearly in conflict with the great weight of authority. In the latter con

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