Mann v. Lewis , 3 W. Va. 215 ( 1869 )

Brown, President.

In 1856, John Butler sold to Andrew Lewis a tract of land in Payette county. Lewis executed bis bonds to Butler for the purchase money and Butler executed his title bond to Lewis for the land.

Iu 1859, Butler died, leaving a will with John Argabrite as his executor, who thereafter took new bonds from Lewis, with ‘William T. Mann as his surety therein, in lieu of the old ones. In 1864, Mann paid off the balance of these bonds, amounting to 801 dollars and 59 cents, with Confederate treasury notes (so-called), and obtained from Lewis a title bond upon a promise to take it to Argabrite and get Lewis the deed, representing that Argabrite was getting old and might drop off at any time. Argabrite refused to make the deed, alleging the said treasury notes to be worthless. Lewis then demanded the' title bond of Mann, which he refused to give up, saying he intended to keep it until ho got his money. Lewis, by his agent, repaid to Argabrite the 301 dollars and 59 cents, which Mann had paid in Confederate paper, as above stated, with the understanding that Argabrite should make the deed, which he is willing to do. The bill made Argabrite as executor and Lewis defendants, and prays that the land be sold to repay to complainant the money paid by him with interest and for general relief.

The answer of Argabrite alleges that the complainant by false representations, menaces and fraud induced and coerced this respondent to receive the said worthless and illegal notes and to deliver to him the said bonds.

Lewis also answered the bill controvcrtihg‘the claims of the complainant.

The charge of fraud and duress having been distinctly made in the answer and proofs taken to sustain the charge, it becomes necessary to consider and determine that question. Does the evidence sustain the charge ? The appellant insists that it does not. And if the occurrence had happened as described iu the ordinary times of peace and security, where every man could expect and have the protection of the government and law, it might be very questionable whether the charge of fraud and duress could bo sustained in this case. But this case, like every other, must be viewed in the light of the time, place and circumstances ot its occurrence, and of the state of things then existing, and the condition of the country, of which the court must take judicial notice so far as the same have relation and bearing upon the case.

The time then of the occurrence was in 1864, in the midst of a fierce civil war. The place was in the county of Green-brier, which was one of the many counties of Virginia whose citizens were declared by the President of the United States, in his proclamation of July 1st, 1862, to be in a state of insurrection against the government and Union.

That the said county at the time was under the domination of the rebel authorities, civil and military, is a matter of public history, and that a citizen who was loyal to the Constitution and Union and to the State of "West Virginia was not secure in standing upon the rights to which he was entitled under the government and laws by which his case is now tried. The evidence shows he was a Union man and loyal to the Union; that lie did not wish to deal in the so-called Confederate treasury notes, and refused to receive them. That he did not seek the appellant, but on the contrary the appellant sought him and urged him to take the paper, which Argabrite regarded as worthless, and which could be of no value whatever to those for whose benefit he was actings viz: the legatees of his testator, but appellant “ told him he was obliged to take it, under the laws of the Confederate government.” To discredit the contraband currency of the Confederacy by refusing to receive it, under such circumstances, might have been hazardous to one not suspected nor chargeable with loyalty to the Union, but to one of known loyal sympathies it was doubtless a cause of serious apprehension when he might consider the historical fact that Libby Prison and Castle Thunder were full of his loyal fellow-citizens, whose only crime was their loyalty to the Constitution and the Union. Pressed by a man who was taking advantage of his position to pay a debt in depreciated and illegal paper, for which he was only security, (and payment of which was not demanded), threatened with the compulsion of a pretended law of the so-called Confederacy, under such circumstances and such surroundings and with such hazards before him and with such cause of reasonable apprehensions of danger, it was not unnatural that he yielded to importunities and threats of the appellant. lie cannot be said to have acted freely or to have consented of his own accord in the eye of the law to receive the contraband and worthless article in discharge of a valid and well secured debt. It was a case of duress per minas. Lord Coke says, the fear of imprisonment is enough. 2 Inst., 483; Co. Litt., 253b.

In the case of Foskay vs. Ferguson, 5 Hill, 154, it is said “if a deed might be avoided nearly three centuries ago on the ground that it was procured by threats and the fear of illegal imprisonment, there can be no room for doubt upon the question at the present day. As civilization has advanced the law has tended much more strongly than it formerly did to overthrow everything which is built upon violence and fraud.” And again it is said by Judge Bronson in the same case, “ but I entertain no doubt that a contract procured by threats and the fear of battery or the destruction of property may be avoided on the ground of duress. There is nothing but the form of a contract in such case, without the substance. It loants the voluntary assent of the party to be bound by it. And why should the wrong doer derive an advantage from his tortious act? No good reason can be assigned for upholding such, a transaction.”

The court decreed a conveyance from Argabrite to Lewis and gave costs against the complainant.

It is claimed for the complaiuant that as he was the security of Lewis he had a right to pay off the bonds, which being dated before the war were good, and was thereby entitled to be substituted to the shoes of Argabrite, the creditor, and thus enforce the vendor’s lien on the land, and that as between him and Lewis it was not material how he paid the debt to Argabrite. He also claims this to be an executed contract. But Argabrite rightly insists that cannot be so, since he, the vendor, has not made the deed in pursuance of the contract, and refuses to do so until he shall be paid in good money. And a court of equity will not compel bim to do so for a party whose claim is based upon an illegal consideration and transaction as this is. Brown vs. Wylie, 2 W. Va., 502, and Calfee vs. Burgess, infra.

There was no error, therefore, in refusing the relief which the complainant sought at the hands of the court of equity. Nor was it a matter of which complainant might complain to require the defendant Argabrite to convey to the -co-defendant Lewis, at the expense of the latter, the land which Lewis had paid him for in good money, .and thus avoid another suit.

I think, therefore, that the decree of the court below should be affirmed, with costs and damages to the appellees.

The other judges concurred.

Decree affirmed.