CHAUNCEY BROWN, Appellee and Complainant, vs. ROSALINE PECK and ABRAHAM WOOD, Appellants and Defendants, 2 Wis. 261

By the Court, Smith, J. The bill is filed in this case to avoid and set aside a deed of the complainant to the defendant, Bosaline Peck, for a certain tract of land in the county of Sauk, which he alleges was made, executed and acknowledged under duress. The bill states, that in the month of May, A.

D. 1847,. the complainant purchased the land in question from the United States, and received the register’s duplicate therefor; that in the night of the 23d of November following, while he was in bed at the tavern house of Marcus Warren, in Prairie du Sac, in said county of Sauk, he was forcibly seized therein, and dragged out of Ms bed, into the street, by some twenty or more persons, among whom were Luther Peg]^ James Christy, James H.

Haines, John Craw- ^or<^ William Canfield, Thomas Remington, Westley Clement, and others unknown, and by them illegally, by force and the infliction of bodily injury, after haying dragged the complainant from his bed, compelled to go to the village of Prairie du Sac, and then, to execute a deed of the said land to the said Rosaline Peck, which was witnessed by John B. Crawford, and Cyrus Leland, notary public, and bore date the said 23d day of November, lSáí ; and compelled him to acknowledge the receipt of one hundred dollars from the said Rosaline.

The bill further states, that the said persons acted as the friends and agents of the said Rosaline, either by her express procurement previous to, or with her approval afterwards, of their violent and riotous acts ; that the said sum of $100 was furnished by her, and was left with Leland, the notary, and that the complainant never received or applied for said money. That the deed was altogether and wholly involuntary, &c.

The testimony taken and produced on the hearing, more than sustains the allegations of the bill, and exhibits a case of the most lawless violence and maltreatment on the part of the persons charged in the bill. The "complainant was forcibly and violently taken from his bed, in the midst of the night, with no clothing but his shirt. At the very moment of their attack upon him, the rioters demanded of him to make a deed of the land to the widow Peck; five or six men had hold of his arms and legs. He refused, and continued to refuse to execute the deed. They soon took him from the house by force.

It was in cold weather. He was thrown down and rolled in the mud and water, and mud and snow was thrown upon him. After having been a considerable time subjected to such kind of treatment, he promised, if they would go back, he would give Mrs. Peck a deed. He was then taken to Fife’s tavern, when the notary was sent for, who came with a deed ready prepared, which was 'then and there executed by the complainant. The hour was somewhat after midnight. The hundred dollars was laid on the table by Luther Peck, and was taken charge of by the notary.

The notary describes the complainant as “ wet, muddy, cold and shivering; he seemed to .be agitated, shivered with cold, and spoke with difficulty; his face was muddy.” Such is a meagre outline of the evidence produced on the part of the complainant, drawn from the actors themselves, and is uncbntradicted and unmitigated. “ Every legal contract,” says Bacon, “ must be the act of the understanding, which they are incapable of using, who are under restraint and terrors ; and therefore the law requires the free assent of the parties as essential to every contract, and that they be not under any force or violence. 2 Bac.

Ab. Title “ Duress,” 402. It is perfectly apparent to -every one, that there was not that free assent to the mind of the complainant in the execution of the deed in question, which is essential to a valid contract. To enforce a contract entered into under circumstances 'which characterize the transactions proved in this case, would be to withdraw the protection of the court from those unable to protect themselves, and prostitute its sacred functions to the purposes of lawless violence and outrage.

Nor, in a court of equity, is it necessary to observe technical distinction sometimes taken between du-minas, and duress of imprisonment, for whether it be per minas vitae, or per minas imprisonum ^ Ge^-i edu^y ^ equally fatal to the contract, if the menaces used, or equivalent acts of violence, are such as to have an undue influence upon the party, and to prevent the exercise of his own free will, in executing the contract, it is voidable. The free, voluntary meeting and mingling, or acquiescence of minds, is a sine qua non in filling contracts.

And “though terror and force are not sufficient to make it duress at common law, yet it may be relieved against in equity. 2 Vern. 497. Without attempting to recapitulate, or to give a further detail of the testimony, it is sufficient to remark, that it is hardly possible to conceive of a case, of a deed extorted by force, menaces and fear, more clearly proved than the one'before us. If there ever was an instance in which the party contracting stood in vinculis, this is one. We are unable to pei’ceive-why the complainant may not reasonably have been-in fear for his life.

Dragged down from his bed at-, the dead hour of the night, in cold November-, rolled* two or three times in the mud and snow, and taken-.; cold, shivering, and scarcely able to speak, before a. notary who had the instrument for him to sign ready-prepared to his hand, with a perfect consciousness of" a design on the part of his persecutors further to ■ “lynch” him, if he refused to comply with their requests, without a voice raised in his behalf, or an arm uplifted for his protection, the stoutest heart might reasonably quail, and the most stoical be anxious in regard to the result of the purpose then being ex- ■ ecuted.

We must confess to our astonishment, that any officer of the State, acting under the solemnity of his official oath, could have taken the acknowledgment of a deed from a person in the condition, and under the circumstances in which he describes the complainant. But we forbear to comment upon the conduct of the notary, any further than simply remarking, that as this is the first, so we think it will be the last instance of the kind, which may ever come to our notice. But it is claimed here, that the defendant, Mrs.

Peck, was ignorant of the designs of the rioters, and that the outrages upon the complainant were not made by her procurement or with her consent. This does not alter the law or the equities between the parties. The object of the rioters was, to procure this deed for the benefit of Mrs. Peck, and under this deed so obtained, she claims. . She does not occupy the position of an innocent purchaser, and hence we are not called upon to decide any question of that kind so far as she is concerned.

By taking the deed of the complainant, obtained as that was, she took it subject to all the equities attending its inception and consummation. It only remains to consider the rights of the defendant Wood ; and on this head very little need be said. By the answer of Wood, and the circumstances detailed in evidence, we are relieved from the necessity of ascertaining what would have been his equity, (or whether he would have had any,) had he been an actual bona fids purchaser without notice ; in the want of the failure of the grantor’s title.

He has never paid anything for the land, but merely gave his notes, secured by mortgage on the land, payable at a day, ^e grani01' retaining possession all the while, and characterizing the transaction as “ a friendly act” on the part of Mr. Wood. It is also apparent, that he had either actual notice of the circumstances attending the execution of the deed of the complainant to his grantor, or had such notice as should have put him upon inquiry. He lived in the neighborhood at the time of the transaction.

It was a subject generally known, talked about and understood, and in his answer he says, “ that from her long and uninterrupted possession of the lot, and from the complainant's long acquiescence in Mrs. Peck”s title, he did not suspect or imagine that the complainant could or would repudiate or attempt to repudiate his deed to her.” Why should he use this language, if he had no knowledge of the circumstances attending the execution of the deed ? We cannot, therefore, regard Mr. Wood as an innocent purchaser, and if he were, we are far from expressing the opinion that his rights would have been different.

It is set up in the answer of both the defendants, that the complainant had received the one hundred dollars, money of Mrs. Peek, at the time he executed the deed, and that the complainant ought to have refunded to her that sum and the interest. The whole of the argument, and the equity urged, is based upon the assumed fact, that the act of Luther Peck, in laying the $100 upon the table of Leland, constituted a payment on behalf of Mrs. Peck, and that the answer of the complainant to Leland’s question, if he should keep the money till morning, constituted a receipt of the consideration.

But such is not the legal construction of those acts. In no sense could Leland, brought to Fife’s tavern with a deed in bis band, at tbe instance of tbe rioters, for tbe purpose of consummating tbeir object, be considered tbe agent of tbe complainant. His acts and language in regard to tbe disposition of tbe money, are as void as those of tbe subscribing and acknowledging tbe deed. And.tbe fact, that be not only did not call for tbe money tbe nest morning, but never applied for it, was a sufficient disclaimer of any assent of bis to its disposition, and was quite sufficient to apprise Mrs.

Peck and tbe others, of bis intention to avoid bis deed. There was in fact no valid, legal payment made, nor any received, but tbe transactions in all tbeir parts, were illegal, and of course not binding upon any. But it is further urged, that the complainant, by bis delay in asserting bis rights, has lost them ; that by failing to give earlier notice of bis intention to repudiate bis deed, by tbe commencement of suit or otherwise, be has ratified and confirmed it. There is no doubt, that by long acquiescence in a contract merely voidable, tbe right to avoid it may be lost.

But in order to charge a person with delay or laches, ■he must be shown to have been in a condition safely to assert and enforce bis rights. This deed was executed on tbe night of tbe 23d of November, A. D. 1847, and tbe bill was filed tbe 20th of September, A. D. 1850. In tbe meantime, tbe same reasons might have deterred him from attempting to avoid bis deed, which operated to induce him to execute it. If he could not withhold tbe deed without being subject to midnight attacks and dangerous assaults, be might well hesitate' for a while, about retracting what be bad been forced to do.

If tbe feeling of indignation towards him was so rife and so general in that neighborhood, as to lead to such illegal acts and demonstrations, we are far from saying that, the complainant did not act wisely in delaying a resort to legal means to compel the cancellation of the deed thus extorted from him. In commenting upon the facts of this case, we have been compelled to use terms expressive of the just character of the transactions disclosed. It is our duty so to do.

Here was a high-han Jed outrage upon the law, and the rights of a citizen entitled to its protection, and when persons attempt to set themselves above the law, and redress their own grievances in their own way, it becomes the duty of every officer and citizen to rebuke conduct so fatal to all the inter-terests of society, and so destructive to the administration of justice. Nor do we intend to justify or palliate the conduct of the complainant, in entering the land of Mrs. Peck, or rather the land on which she lived.

The dictates of humanity should have prompted him to seek other fields for speculation or profitable investment. If he entered the land ignorantly, he should have corrected the mistake ; if he did it knowingly, he deserved the censure of the generous and humane. Bat there are many departures from a high standard of moral conduct, which the law cannot punish, but which find their desert before that social tribunal erected by public sentiment in every well regulated community.

The complainant had the legal right to enter the land, and if he so used his legal right as to outrage the generous sympathies of the people, he should have been left to that social condemnation which the moral character of his conduct was calculated to in-spb'e, But those rights which the law guarantees must he protected, and those'who attempt t©> take the law into their own hands, or to provide for-a¡ violent redress of grievances, which the law cann©fr.r,each, will only find in the end, that they have inflicted a deep wound upon the source of their own protection and security, without accomplishing, and in nine times out of ten, defeating the very object which they had in view.

We see no error in the decree of the court below, and no reason for disturbing it. The decree of the Circuit Court is affirmed, with costs.