Royal v. Goss , 154 Ala. 117 ( 1907 )

ANDEBSON, J.

“In general, a contract made under duress is only voidable and not void; hence the one on whom the duress has been imposed may either repudiate or affirm it. There are cases, however, in which the severity of the duress is such that the person on whom it is imposed is converted into a mere automaton for the purpose of obeying the command and registering the will of the person who imposes it. In such cases the formal contracting is simply null and of no effect.” — 10 Am. & Eng. Ency. Law (2d Ed.) 334. The duress attempted to be set up by the plaintiff in the case at bar, if it existed, was of that character that would render the deed voidable, and not void. — Treadwell v. Torbert, 133 Ala. 507, 32 South. 126. A conveyance executed under duress is not voidable against a purchaser for value and without notice. — Vancleave v. Wilson, 73 Ala. 387; Moof v. Strang, 69 Ala. 98; Rogers v. Adams, 66 Ala. 600. But a vendor who conveys land under duress can disaffirm the sale, when seasonably expressed, and by placing the partes in statu quo as against one who acquiesced in the duress or had notice thereof; that is, by returning or offering to return the consideration within a reasonable time after the removal of the duress.— Newell on Eject. 488. A contract or conveyance under such character of duress as is set up by the plaintiff in the case at bar would be merely voidable, and not void; for the consent was present, although not such a full consent as the law requires. “And the limits to the right of rescission of a contract obtained by fraud apply likewise to agreements voidable for duress.” — 9 Cyc. p. 443. The whole doctrine involved in reference to the rescissions of contracts for fraud and duress is based largely on the provisions governing rescission as an equitable remedy. The substantial difference is that a court of equity decrees rescission or cancellation upon certain terms which require the party seeking relief to do equity, and which it can do, whether the party has restored or offered to restore the consideration or not, and which has been held not to be a condition precedent for relief; whereas, in a court of law the court only has the power to enforce or annul the contract and cannot compel a restoration of the consideration as a condition to relief, and a complaining party must therefore voluntarily put the other party in statu quo as a condition precedent to relief. — 6 Cyc. 285; Garner v. Leverett, 32 Ala. 413; Ansley v. Bank of Piedmont, 113 Ala. _75, 21 South. 59, 59 Am. St. Rep. 122. So, too, should money paid out to protect a title to the thing which forms the consideration of .the contract, and the payment of which was provided for or contemplated by the parties, be restored before rescission. — Kennedy’s Heirs v. Kennedy’s Heirs, 2 Ala. 571; Loxley v. Douglas, 121 Ala. 576, 25 South. 998; Robertson v. Bradford, 73 Ala. 118.

Conceding that Mrs. Royal, the plaintiff, got no part of the $4,000 paid as a part of the purchase money and would not have to restore that sum in order to rescind the sale of the land, if made under duress, the payment of the $4,000 mortgage then on the land was a part of the consideration for the deed and was so expressed. It was paid by the defendants under the very terms of the conveyance and ceased to be a charge upon the land, and the plaintiff cannot accept the fruits of the conveyance and at the same time avoid the burdens. There must be a rescission in toto or not at all, and the plaintiff, as a condition precedent to avoid the deed, had to show that she repaid the defendants the amount paid out by them in satisfaction of the mortgage, or offered to do so within a reasonable time after the removal of the duress. Failing to do so the deed was binding on her, whether made under duress or not, and its introduction in evidence proved the title out of her and in the defendants.

The plaintiff below made some effort to prove that the husband was insane when he made the deed to her and when he joined in the one from her to the defendants. Conceding that he was when he conveyed to her, and that the deed was void, which we do not decide, this fact would not improve her title, as it would be in the heirs, and not her. On the other hand, if he was insane when he joined with the plaintiff in the deed to the defendants, that fact would not impair their title. The deed was executed in 1894, and the statute then existing and as it now is on this subject provided that the wife could alienate her real estate as if she were sole, if the husband was a non compos mentis. — Section 2348 of the Code of 1886; section 2528 of the Code of 1896.

Since the defendant was entitled to the general charge, it is needless for ns to consider the other assignments of error, as the questions therein involved, whether decided correctly or not by the trial judge, could not, if otherwise decided, change the result.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Simpson and Denson, J.T., concur.