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DURESS.

§ 301. Duress per minas. By duress, in its more extended sense, is meant that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.(a) The common law has

1 "Non suspicio vel cujuslibet vani vel meticulosi hominis, sed talis qui cadere possit in virum constantem ; talis enim debet esse metus, que in se contineat mortis periculum, et corporis cruciatum.” Bracton, lib. 2, c. 5, par. 14.

ress.

(a) The decisions seem to turn more on threat made to the wife to prosecute her this point than on the distinction between husband for en bezzlement, in Eadie v. bodily harm and harm to property only, Slimmon, 26 N. Y. 9; Singer Manufacmentioned below. If the threats are of turing Co. v. Rawson, 50 lowa, 634 ; or such a nature as to induce a man of rea- extorting a note from a father by arresting sonable courage to act against his will, his his son (Shenk v. Phelps, 6 Ill. App. 612); act is not voluntary, and any claim which or a mortgage from an aunt by threatening is based on the voluntariness of such an act her nephew with arrest (Sharon v. Gager, must fail. But if the violence offered is 46 Conn. 189), have been held to be du. not of such a nature, the act may be vol- But a threat by a husband to his untary. Thus, where the defendant in an wife that he will commit suicide is not such action on a promissory note was threat. duress. Wright v. Remington, 41 N. J. L. ened, as he was taking the train from 48; Lefebvre v. Detruit, 51 Wis. 326. But Nashville, Tenn., to his home in Maine, a threat by the husband that he will abanthat he would not be allowed to leave the don her if she does not sign a deed is town till he signed the note, but there was enough to avoid it. Kocourek v. Marak, no menace of violence and no officer pres. 54 Tex. 201; Line v. Blizzard, 70 Ind. ent, nor pretence of legal authority, this 23. The fraudulent seizing and withholdwas held not to be a sufficient defence to ing of property by legal process may the action. Seymour v. Prescott, 69 Me. amount to duress. Spaid v. Barrett, 57 376.

Ill. 289. And the courts show a tendency Redfield, J., in his notes to a former to give the rule as to duress per minas a edition, says: It would seem that the rule broader application than formerly. Tresof law in regard to duress per minas is pass to real estate, withholding personal stated too narrowly in the text. In Rob- property, and the like, have been held to inson v. Gould, 11 Cush. (Mass.) 57, the be duress if they so far overcome the party Supreme Judicial Court of Massachusetts threatened, that the obligation sued upon say that “duress by menaces, which is would not have been entered into had the deemed sufficient to avoid contracts, in- acts not been done. United States v. cludes a threat of imprisonment, inducing Huckabee, 16 Wall. (U. S.) 431 ; Miller a reasonable fear of loss of liberty. 2 Rol. v. Miller, 68 Pa. St. 486 ; Walbridge v. Ab. 124 ; 2 Inst. 482, 483 ; Bac. Ab. Du- Arnold, 21 Conn. 231. See also ante, ress, A ; 20 Amer. Jur. 24." So a threat $ 121, n. But a threat to sue (Harris v. of imprisonment has been held to amount Tyson, 24 Pa. St. 347); or to prosecute to duress. Foshayv. Ferguson, 5 Hill merely (Harmon v. Harmon, 61 Me. 227 ; (N. Y.), 154; Taylor v. "Jacques, 106 Plant v. Gunn, 2 Woods C. C. 372), is Mass. 291. It is not necessary that the pot duress. Nor is a pressing want of violence should be offered to the party who money. Miller v. Coates, 4 N. Y. Sup. is to sign the deed or make the contract. Ct. 429. Nor is the payment of taxes il. It is enough if it is offered to a person in legally assessed. Swanston v. Ijams, 63 whom he is so interested that he acts Ill. 165. After all, perhaps the real quesunder the fear of such violence. Thus, & tion is, whether, under the circumstances,

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divided it into two classes ; namely, duress per minas, and duress of imprisonment. Duress per minas is restricted to fear of loss of life, or of mayhem, or loss of limb; or, in other words, of remediless harm to the person. If, therefore, duress per minas is pleaded in bar of an action upon a deed, the plea must state a threat of death, or mayhem, or loss of limb; and a threat to this specific extent must be proved. A fear of mere battery, or of destruction of property, is not, technically, duress, and therefore is not pleadable in bar;? but facts of this kind, it is conceived, are admissible in evidence to make out a defence of fraud and extortion in obtaining the instrument.2

§ 302. Duress of imprisonment. The plea of dure88 of imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument. If the imprisonment was lawful, that is, if it were by virtue of legal process, the plea is not supported, unless it appear that the arrest was upon process sued out maliciously and without probable cause; or that, while the party was under lawful arrest, unlawful force, constraint, or severity was inflicted upon him, by reason of which the instrument was executed.* (a) But in all cases the

1 1 BL Comm. 131. In Louisiana, any threats will invalidate a contract, if they are "such as would naturally operate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation, or fortune.” Civil Code La. art. 1845. And the age, sex, health, disposition, and other circumstances of the party threatened, are taken into consideration. Id. The contract is equally invalidated by a false report of threats, if it were made under a belief of their truth ; and by threats of injury to the wife, husband, descendant, or ascendant of the party contracting. ld. arts. 1846, 1847. These rules apply to cases where there may be some other motive for making the contract besides the threats. But if there is no other motive or cause, then any threats, even of slight injury, will invalidate it. Id. art. 1853.

2 See Evans v. Huey, 1 Bay, 13 ; Collins v. Westbury, 2 Bay, 211 ; James v. Roberts, 18 Ohio, 548 ; Sasportas v. Jennings, 1 Bay, 470, 475. In this last case, the rule is broadly laid down, that where assumpsit would lie to recover back the money, had it been paid under restraint of goods, a promise to pay it, made under the like circumstances, may be avoided by a plea of duress.

8 1 Bl. Comm. 136, 137 ; Hob. 266, 267; 2 Inst. 482; Anon., 1 Lev. 68, 69; Wil. cox v. Howland, 23 Pick. 167; Waterman v. Barratt, 4 Harringt. 311; Neally v. Greenough, 5 Foster (N. H.), 325.

4 Anon., Aleyn, 92; Watkins v. Baird, 6 Mass. 506.

the threats are the means by which the admissions were made because they were party making them gains an unjust advan- true, or because the party making them tage.

was under duress. Tilley v. Damon, 11 (a) Soule v. Bonney, 37 Me. 128; Breck Cush. (Mass.) 247. So is a lawful arrest, v. Blanchard, 22 N. H. 303; Taylor v. for an unlawful purpose.

Severance v. Cottress, 16 Ill. 93. Not only is a direct Kimball, 8 N. H. 386; Heaps v. Dunpromise void, if made under duress and ham, 95 Ill. 583. So is an arrest for a an illegal arrest, but so also are admis- just cause, but by irregular proceedings. sions thus made of a former promise ; and Fisher v. Shattuck, 17 Pick. (Mass.) 252. the jury cannot inquire whether such

duress must affect the party himself; for if there be two obligors, one of whom executed the bond by duress, the other cannot take advantage of this to avoid the bond as to himself." (a)

1 Huscombe v. Standing, Cro. Jac. 187; Thompson v. Lockwood, 15 Johns. 256.

(a) Mantel v. Gibbs, 1 Brownlow, 64; ties upon a recognizance cannot plead the Wayne v. Sands, Id. 351 ; Shep. Touch. duress of their principal in discharge of 62; McClintick' v. Cunimins, 3 McLean their liability. Plumer v. People, 16 M. C. C. 158 ; 20 Amer. Jur. 26; Robin. 358. But see State v. Bruntley, 27 Ala. son v. Gould, 11 Cush. (Mass.) 57. Sure 44.

EJECTMENT.

§ 303. Ejectment defined. This, which was originally a personal action of trespass, is now a mixed action, for the recovery of land and damages, and is become the principal, and in some States the only, action, by which the title to real estate is tried, and the land recovered. (a) In several of the United States, the remedy for the recovery of land is by an action frequently called an ejectment, but in form more nearly resembling the writ of entry on disseisin, in the nature of an assize. But in all the forms of remedy, as they are now used in practice, the essential principles are the same, at least so far as the law of evidence is concerned. The real plaintiff, in every form, recovers only on the strength of his own title ;2 (6) and he must show that he has the legal interest, and a po88e88ory title, not barred by the statute of limitations.3

§ 304. Proof under general issue. When the title of the real plaintiff in ejectment is controverted under the general issue, he must prove, (1) that he had the legal estate in the premises, at the time of the demise laid in the declaration; (2) that he also had the right of entry; and (3) that the defendant, or those

1 Jackson on Real Actions, 2, 4.

2 Roe v. Harvey, 4 Burr. 2484, 2487 ; Jackson on Real Actions, p. 5; Adams on Eject. pp. 32, 285, by Tillinghast; 1 Chitty on Pl. 173; Williams v. Ingalls, 21 Pick. 288; Martin v. Strachan, 5 T. R. 108, n.; Goodtitle v. Baldwin, 11 East, 488, 495 ; Lane v. Reynard, 2 S. & R. 65;' Covert v. Irwin, 3 S. & R. 288.

8 Chitty on Pl. 172; Id. 209 (7th ed.).

(a) Ejectment does not lie to enforce United States law, the party first com. an incorporeal hereditament. Harlow v. mencing proceedings has the better Lake Superior Mining Co., 36 Mich. 105; right. Young v. Shinn, 48 Cal. 26. A Taylor v. Gladwin, 4) Mich. 232. patent of land from the State is prima

(6) Lathrop v. American Emigrant Co., facie evidence of title in the grantee, who 41 Iowa, 547. Though, in ejectment, the is not to be called upon to produce proof plaintiff cannot recover, except by proving of the regularity also of the preliminary title in himself, yet when the parties claim proceedings. Brady v. Begun, 36 Barb. under conflicting titles, and the only ques. (N. Y.) 533. So is a certificate of purchase tion is which of the two is good, it is of public lands issued to the plaintiff by proper to instruct the jury that the one the United States. Sacramento, &c. Bank having the best title must recover. Buse. v. Hynes, 50 Cal. 195. So the certifi. nius v. Coffee, 14 Cal. 91. See also post, cate of location of a State school lands in 88 331, 613, n. And where two parties the hands of the person to whom it is ishave equal rights to acquire public land, sued or his vendees, is prima facie evione under State law, and the other under dence. Stanway v. Rubio, 51 Cal. 41.

claiming under him, were in possession of the premises at the time when the declaration in ejectment was served.1

§ 305. When there is privity in estate. If a privity in estate has subsisted between the parties, proof of title is ordinarily unnecessary; for a party is not permitted to dispute the original title of him by whom he has been let into the possession. This rule is extended to the case of a tenant acquiring the possession by wrong against the owner, and to one holding over after the expiration of his lease. And when the relation of landlord and tenant is once established by express act of the parties, it attaches to all who may succeed to the possession through or under the tenant, whether immediately or remotely, the succeeding tenant being as much affected by the acts and admissions of his predecessor, in regard to the title, as if they were his own. Even an agreement to purchase the lands, if made deliberately, estops the purchaser from denying the title of the vendor.5 But evidence of an agreement for a lease, if none was ever executed, is not alone sufficient to establish this relation, against a tenant already holding adversely. Nor is the tenant precluded from showing that an agreement to purchase from the plaintiff was made by him under a mistake, or that the title was in himself, or out of the lessor ;? or that a lease, which he has taken while in possession, was unfairly imposed upon him, by misrepresentation and fraud.8

1 Adams on Eject. p. 247, by Tillinghast. 2 Ante, vol. i. &$ 24, 25 ; Adams on Eject. p. 247, by Tillinghast; Wood v. Day, 7 Taunt. 646; 1 Moore, 389; Jackson v. Reynolds, 1 Caines, 444; Jackson v. Whitford, 2 Caines, 215 ; Jackson v. Vosburg, 7 Johns. 186 ; Williams v. Annapolis, 6 H. & J. 533; Jackson v. Stewart, 6 Johns. 34; Jackson v. De Walts, 7 Johns. 157: Jackson v. Hinman, 10 Johns. 292; Doe v. Edwards, 6 C. & P. 208. The lessee of a close in sev. eralty, demised to him by one of several tenants in common, cannot set up an adverse title in bar of an action by his lessor. Doe v. Mitchell, 1 B. & B. 11; Jackson v. Creal, 13 Johns. 116.

3 Jackson v. Styles, 1 Cowen, 575 ; Doe v. Baytup, Ad. & El. 188 ; 4 N. & M. 837. So, though the landlord's title was acquired by wrong (Parry v. House, Holt's Cases, 489); or was only an equitable title (Doe v. Edwards, 6 C. & P. 208).

4 Taylor v. Needham, 2 Taunt. 278 ; Doe v. Mills, 2 Ad. & El. 17 ; Doe v. Lewis, 5 Ad. & El. 577 ; Jackson v. Davis, 5 Cowen, 123 ; Jackson v. Harsen, 7 Cowen, 323; Jackson v. Scissam, 3 Johns. 499 ; Graham v. Moore, 4 S. & R. 467 ; Jackson v. Walker, 7 Cowen, 637; Cooper v. Blandy, 4 M. & Scott, 562; Doe v. Mizen, 2 M. & Rob. 56; Barwick v. Thompson, 7 T. R. 488. The purchaser at a sheriff's sale is privy to the debtor's title, and is therefore equally estopped with him. Jackson v. Graham, 3 Caines, 188; Jackson v. Bush, 10 Johns. 223.

6 Whiteside v. Jackson, 1 Wend. 418; Jackson v. Walker, 7 Cowen, 637; Jackson v. Norris, Id. 717 ; Hamilton v. Taylor, Litt. Sel. Cas. 444 ; Doe v. Burton, 6 Eng. Law & Eq. 325.

6 Jackson v. Cooley, 2 Johns. Cas. 223. 7 Jackson v. Cuerden, 2 Johns. Cas. 353.

8 Brown v. Dysinger, 1 Rawle, 408 ; Miller v. M'Brier, 14 S. & R. 382 ; Hamilton v. Marsden, 6 Binn. 45; Jackson V. Ayres, 14 Johns. 224; Jackson v. Norris, 7 Cowen, 717.

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