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rection, see Sherman v.

Sherman inevitable and complete financial ruin. (1892) 47 N. Y. S. R. 404, 20 N. Y. In connection with this ruling, see La. Supp. 414, where the court, in holding Civ. Code, arts. 1851, 1852. that a marriage will not be annulled

So in Minnesota, where the statutes for duress unless it is shown that the

provide that “the acknowledgment of other contracting party caused, or at the wife shall be taken separately, least knew of, the duress, recognized apart from her husband,” it has been the general rule that no contract can held that an acknowledgment of a be annulled for duress unless it ap mortgage executed by a wife while unpears that the obligee occasioned the

der duress previously practised by her duress or knowingly used or availed husband, and in his presence, invalihimself of it as a means of procuring dated the mortgage even as to the such contract.

mortgagee, who did not know of the And again, in Central Bank v. Cope duress or of the presence of the husland (1862) 18 Md. 305, 81 Am. Dec. band at the time of the taking of the 597, where a wife executed a mortgage acknowledgment. Edgerton v. Jones while under duress practised by her (1865) 10 Minn, 427, Gil. 341. The husband to secure a debt owed by him, court said that the fact that the mortit was held that the fact that the mort

gagee was entirely ignorant and innogagee took no part in procuring the cent as regards the duress "was not execution of the mortgage neither

important,” and further that “he had strengthened his right to set it up as no right to be ignorant of the manner valid, nor impaired her right to avoid in which the mortgage was executed it. This was upon the theory that and acknowledged; it ran to him; he since the execution was procured by was not obliged to take it or advance the husband acting in the mortgagee's money on it; if he saw fit to do so withinterest and for his benefit, his ac out making prudent inquiry, it was his ceptance of the mortgage implied an own misfortune." adoption of the husband's agency so And under constitutional provisions that the mortgagee had no right to en and statutes requiring the consent of force it free from the infirmity of the both the husband and the wife to a duress. It does not appear in this conveyance or encumbrance of their case, however, whether or not the

homestead, it has been held that the mortgagee had knowledge of the exer execution by a married woman of a cise of the coercion by the husband, deed or mortgage of homestead propthe opinion merely stating that the

erty while under duress is not volunmortgagee took no active part.

tary within the meaning of the HomeAnd in the New York case of Barry

stead Law, and, therefore, that such v. Equitable Life Assur. Soc. (1875)

an instrument is invalid even as to a 59 N. Y. 587, it was held that the as

grantee or mortgagee who had no signee of a life insurance policy could

knowledge of, and did not participate not hold the policy as against the as in, the duress. Anderson v. Anderson signor where the assigpment was (1872) 9 Kan. 112, holding that the made by a woman acting under duress

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good faith of the purchaser cannot be practised by her husband, and this considered in determining the validity even though the assignee had no of a deed executed under such circumknowledge of the duress.

stances. And see Berry v. Berry And in Louisiana it has been held, as (1897) 57 Kan. 691, 57 Am. St. Rep. stated by the court in the second head 351, 47 Pac. 837, wherein it was said note to Bryant v. Levy (1900) 52 La. that in such a case the instrument Ann. 1649, 28 So. 191, that duress will does not rise to the rank of a mortvitiate and invalidate a contract, al gage, and is absolutely void even as though the obligee did not bring the against a bona fide holder. And see fear to bear and was ignorant of it. also First Nat. Bank v. Bryan (1883) In this case the duress was exercised 62 Iowa, 42, 17 N. W. 165. by a labor association, and the obligor

It also has been held that a marriage had to execute the contract or face may be annulled at the suit of the hus

42

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band on the ground that it was pro conveyance by husband and wife shall
cured through duress of friends and be deemed invalid by reason of duress
relatives of the wife, although she unless the grantee had notice thereof
herself was guilty of no duress. or participated therein. See Davis v.
Marks v. Crume (1895) 16 Ky. L. Rep. Davis (1907) 146 N. C. 163, 59 S. E.
707, 29 S. W. 436. And see Fowler v. 659, which applies North Carolina Re-
Fowler (1913) 131 La, 1088, 60 So. 694. visal, $ 956.
But compare Shepherd v. Shepherd

0. Mortgages.
(1917) 174 Ky. 615, 192 S. W. 658, and
Sherman v. Sherman (1892) 47 N. Y.

Applying the general rule, it has S. R. 404, 20 N. Y. Supp. 414, both of

been held, generally, that duress will which are set out infra, II. h.

not avoid a mortgage where the mort

gagee did not participate in such duII. Particular contracts.

ress. SMITH V. COMMERCIAL BANK

(reported herewith) ante, 862, (morta. Deeds.

gage executed to a bank by a mortThe general rule that the duress of gagor under duress practised by a a stranger to a contract does not affect bank examiner); J. M. Robinson, an innocent obligee has been applied N. & Co. v. Randall (1912) 147 Ky, to deeds as to the taking of which the 45, 143 S. W. 769. (mortgage executgrantee acted in entire good faith. ed under duress practised by coTalley v. Robinson (1872) 22 Gratt. mortgagor); Fears v. United Loan (Va.) 888 (grantor mobbed and driv & Deposit Bank (1916) 172 Ky. 255, en from county). And see Dunfee v. 189 S. W. 226 (mortgage executed by Childs (1906) 59 W. Va. 225, 53 S. E. wife under duress practised by one 209.

threatening to prosecute her husAnd the fact that a married woman band). But see National Bank v. Cox signed a deed while under duress prac (1900) 47 App. Div. 53, 62 N. Y. Supp. tised by her husband does not invali 314 (motion to withdraw appeal grantdate the grantee's title where he has ed in (1901) 165 N. Y. 639, 59 N. E. no notice or knowledge of such duress. 1127) as set out supra, I. Hughie v. Hammett (1898) 105 Ga.

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Nor can a deed of trust be affected 368, 31 S. E. 109; Fightmaster v. Levi by duress not exercised or participated (1891) 13 Ky. L. Rep. 412, 17 S. W.

in by the grantee. Goodrum v. Mer195; Luke v. Gunnell, 1 Ky. Ops. 258,

chants & Planters Bank (1912) 102 as set out in Cyc. Supp. (1914–1918)

Ark. 326, 144 S. W. 198, Ann. Cas. p. 1141, title, Deeds, p. 584, note 82;

1914A, 511. Johnston v. Wallace (1876) 53 Miss.

So it has been held that the validity 331, 24 Am. Rep. 699; Guinn v. Sumpter Valley R. Co. (1912) 63 Or. 368,

of a mortgage executed by a husband 127 Pac. 987; Finnegan v. Finnegan

and wife is not affected by the fact (1876) 3 Tenn. Ch. 510.

that the wife's signature was obtained And the same has been held as to

by means of duress practised by the a bond for title executed by a wife

husband, where the mortgagee was while under the influence of duress not privy thereto, and did not connive practised by the husband. Frasure v. at or in any way participate in such McGuire (1902) 23 Ky. L. Rep. 1990, duress or have knowledge thereof. 66 S. W. 1015. An exception to this United States.-Beals V. Neddo rule has been made, however, where (1880) 1 McCrary, 206, 2 Fed. 41. the conveyance was of the homestead, Alabama.-Rogers v. Adams (1880) and the Constitution and statutes pro 66 Ala. 600. vide that both the husband and wife Georgia.--Johnson Leffler Co. must consent to a conveyance of the (1905) 122 Ga. 670, 50 S. E. 488. homestead. See Anderson v. Ander Illinois.- Ladew y. Paine (1876) 82 son (1872) 9 Kan. 112, as set out su III. 221.

Indiana.-Line v. Blizzard (1880) 70 In North Carolina it is expressly Ind. 23; Gardner v. Case (1887) 111 provided by statute that no deed of Ind. 494, 13 N. E. 36.

pra, I.

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

Kentucky.-Long v. Branhan (1907) 30 Ky. L. Rep. 552, 99 S. W. 271.

Missouri.--Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500.

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.Homoeopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103.

In this connection, however, see Central Bank v. Copeland (1862) 18 Md. 305, 81 Am. Dec. 597, and Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, both of which are set out supra, I.

And the same has been held as to a deed of trust executed under similar circumstances. Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Marston v. Brittenham (1875) 76 Ill. 611; Shell v. Holston Nat. Bldg. & L. Asso. (1899) - Tenn. -, 52 S. W. 909,

And the rule is that the validity of a mortgage executed under the influence of duress exercised upon a woman by the various members of her family is in no wise affected by such duress where the mortgagee did not participate therein and in fact had no knowledge thereof. Moog v. Strang (1881) 69 Ala. 98 (mortgage executed for purpose of covering moneys embezzled by mortgagor's son-in-law).

In North Carolina it is expressly provided by statute that no deed of conveyance by husband and wife shall be deemed invalid because its execution was procured by duress, unless the grantee had notice of or participated in such duress; and this statute has been held to apply to mortgages. See Butner v. Blevins (1899) 125 N. C. 585, 34 S. E. 629, applying the North Carolina Act 1899, chap. 389, and holding that the defense of duress cannot be raised in a mortgage-foreclosure proceeding in the absence of allegation and proof that the mortgagee had knowledge of or participated in the duress.

woman cannot be assailed for duress unless such duress was participated in by the mortgagee or brought to his notice when parting with the consideration. Orendorff v. Suit (1910) 167 Ala. 563, 52 So. 744; Ladew v. Paine (1876) 82 Ill. 221; Homeopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103; Singer Mfg. Co. v. Rook (1877) 84 Pa. 442, 24 Am. Rep. 204. But see Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, as set out supra, 1.

So it has been held that a certificate of acknowledgment of a deed of trust executed by a married woman is not affected by duress if the grantee was not a party to and had no knowledge of the duress. Donahue v. Mills (1883) 41 Ark. 421; Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500. And this is the rule, although the duress was exercised by the husband of the grantor. Marston v. Brittenham (1875) 76 Ill. 611.,

And it has been said that a certificate of acknowledgment executed by a married woman at the instance of her husband cannot be impeached for duress unless it is shown that the grantee had knowledge of the duress. Cahall v. Citizens Mut. Bldg. Asso. (1878) 61 Ala. 232; Johnston v. Wallace (1876) 53 Miss. 331, 24 Am. Rep. 699; Davis v. Davis (1907) 146 N. C. 163, 59 S. E. 659.

d. Notes. The general rule is that duress, to be available as a defense to a note, must have been exercised by the payee or by someone acting in his behalf or with his knowledge. 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.

Nor is the validity of a note in the hands of the payee affected by the fact that the maker, a married woman, executed it while under the duress of her husband, if he took the note in ignorance of such duress. Fairbanks y, Snow (1887) 145 Mass. 153, 1 Am. St. Rep. 446, 13 N. E. 596.

And see also supra, II. b.

c. Certificates of acknowledgment. A certificate of acknowledgment of a mortgage executed by a married

6. Assignments.

h. Marriages. The rule that duress practised by The validity of a marriage in so far one not a party to a contract does not as the wife is concerned is not affectaffect the rights of an innocent party ed by the fact that the husband was has been held to apply to an assignment under duress practised by third perof an insurance policy, the execution sons, she being in ignorance of the of which by the beneficiary was the re- duress at the time of the marriage. sult of duress practised upon her by Schwartz v. Schwartz (1889) 29 Ill. the husband, the insured, the assignee App. 516; Sherman v. Sherman (1892) being entirely innocent. Ely v. Hart- 47 N. Y. S. R. 404, 20 N. Y. Supp. 414 ford L. Ins. Co. (1908) 128 Ky. 799, (holding that the legal principles gov110 S. W. 265.

erning the authority of the court to { However, the contrary rule was

annul a marriage on the ground of adopted in the New York case of Barry duress of one of the parties thereto v. Equitable Life Assur. Soc. (1875) are the same as those applied when 59 N. Y. 587, which is set out supra, I.

the annulment of any other contract

is requested upon the like ground, and 1. Compromises and settlements.

that to be available as a ground for

relief it must appear that the duress The rule that duress does not ap

of the party asking to be relieved was ply to a nonparticipating party to a occasioned by the other contracting contract has been applied to a settle

party or that he knowingly used or ment of a claim for damages for il- availed himself of it). legal sales of intoxicating liquor to In Shepherd v. Shepherd (1917) 174 plaintiff's husband. Boydan v. Haber- Ky. 615, 192 S. W. 658, the court said stumpf (1901) 129 Mich. 137, 88 N. that under the general rule of the W. 386, holding that evidence of du- common law as applied to the duress ress by third persons was not admissi- necessary to avoid a marriage, it was ble to invalidate a receipt unless it necessary that the duress exercised was also shown that the defendant be by the other party to the marriage, had previously authorized the duress

or at least that such party was cogor unless there was a subsequent rati

nizant of the duress, and knew that fication of the acts of such third par

the complaining party was acting unties and a taking advantage of them

der fear induced by the duress; but by the defendant.

that it was held by the court in Marks So, in Missouri it has been held that v. Crume (1895) 16 Ky. L. Rep. 707, 29 to avoid a settlement because entered

S. W. 436, that fear inspired by the into under duress of third persons, it

threats and demonstrations of the relmust appear that the party benefited atives of the other party to the marthereby, or someone with his knowl- riage, which compelled one to consent edge and approval, in some manner or to a marriage, was sufficient. In the by some means constrained or forced Marks Case, in affirming a decree anthe action of the injured party. Mc- nulling a marriage, the court said that Cormick v. St. Louis (1901) 166 Mo. it did not appear that defendant was 315, 65 S. W. 1038.

guilty of any force or duress, but the

proof did conduce to show that friends g. Payments.

or relatives of the defendant did by Money paid under duress cannot be

threats and duress compel the plaintiff recovered back where the duress was

to enter into the contract. Unless it not imposed by the payee or by his di- is implied by the statement that it did rection or consent. Brumagim v. Till- not appear that the defendant was inghast (1861) 18 Cal. 265, 79 Am. Dec. guilty of any force or duress, it did 176; Garrison v. Tillinghast (1861) 18 not affirmatively appear that she was Cal. 404; Baltimore v. Lefferman aware of the duress exerted by her (1846) 4 Gill (Md.) 425, 45 Am. Dec. relatives. 145.

In Fowler v. Fowler (1913) 131 La.

1088, 60 So. 694, where a marriage was
avoided for duress exerted through
threats by relatives, it does not ap-

pear whether or not the other party knew of or participated in the duress.

G. J. C.

AMERICAN LIFE & ACCIDENT INSURANCE COMPANY, Appt.,

V.
ELIZABETH NIRDLINGER.

Mississippi Supreme Court (Division A) - February 13, 1917.

(113 Miss. 74, 73 So. 875.)

Insurance chronic disease construction.

1. Chronic malaria is not within the provision of a health insurance policy that all disability resulting from hernia, orchitis, venereal or chronic disease, imposes liability to a limited amount; since the word "chronic" in that connection means disease of like character with venereal.

[See note on this question beginning on page 875.]
-construction of contract.

of bed or goes out of doors, in order
2. Contracts of insurance whose to try to improve his health, since such
terms are plain and unambiguous are clause is to be liberally construed.
to be congtrued like any other con [See 14 R. C. L. 1318.]
tracts between individuals.

- health confinement to house, [See 14 R. C. L. 925.]

4. No recovery under a health in- provision for confinement in house. surance policy requiring continuous

3. Under a clause in a health insur confinement within the house can be ance policy requiring insured to be had if insured during his illness visconfined to his bed or to the house, or ited health resorts and when at home within the house, in order to recover, went to his store practically every day, recovery may be had if he, acting un although when there he was compelled der the advice of a physician, gets out to lie on a couch.

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APPEAL by defendant from a judgment of the Circuit Court for Lauderdale County (Venable, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on a health insurance policy. Reversed.

The facts are stated in the opinion of the court.
Mr. W. C. Sams, for appellant:

Casualty Co. 28 Misc. 240, 58 N. Y.
Clause E of the contract of insur Supp. 1090; Schneps v. Fidelity & C.
ance does not provide that the insured Co. 101 N. Y. Supp. 106; Dunning v.
shall be necessarily and continuously Massachusetts Mut. Acci. Asso. 99 Me.
confined to his house, but "within the 390, 59 Atl. 535.
house."

Messrs. Fewell & Cameron, for apScales v. Masonic Protective Asso. pellee: 70 N. H. 490, 48 Atl. 1084.

Plaintiff was entitled to full beneThere can be no recovery under the fits under the policy. policy in question,

National Life & Acci. Ins. Co. v. Cooper v. Phænix Acci. & Sick Ben. King, 102 Miss. 470, 58 So. 807; JenAsso. 141 Mich. 478, 104 N. W. 734; nings v. Brotherhood Acci. Co. 44 Hoffman v. Michigan Home & Hospital Colo. 68, 18 L.R.A.(N.S.) 109, 130 Am. Asso. 128 Mich. 323, 54 L.R.A. 746, 87 St. Rep. 109, 96 Pac. 982; Breil v. Claus N. W. 265; Bishop v. United States Groth Plattsdutschen Vereen, 84 Neb. Casualty Co. 99 App. Div. 530, 91 155, 23 L.R.A.(N.S.) 359, 120 N. W. N. Y. Supp. 176; Liston v. New York 905, 18 Ann. Cas. 1110.

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