
    Naomi Duncombe Ring (Formerly Naomi Duncombe), Respondent, v. Patrick J. Ring, Appellant.
    Second Department,
    June 29, 1908.
    Equity — cancellation of deed—return of consideration—duress
    A party seeking to avoid a conveyance on the ground of duress and undue influence must restore the other party to the position occupied before the conveyance and return all he has received in the execution of it.
    But where a husband by duress compelled his wife before marriage to deed her property to both of them as tenants by the entirety, the court will not refuse to declare the deed void because his marriage to her, for which the deed was part consideration, cannot be annulled in that action.
    It is duress for a man to threaten to sue a woman for* a debt she does not owe, to cause others to sue her for slander and other causes, to state that she will be found dead, and that he will ruin her business.
    Appeal by the defendant, Patrick J. Bing, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of July,. 1907, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      William L. Snyder, for the appellant.
    
      Arthur M. Johnson, for the respondent.
   Rich, J.:

This appeal is from a judgment in favor of the plaintiff canceling and declaring void a deed executed ■ by the plaintiff prior to her marriage to the defendant, vesting.in the parties as tenants by the entirety certain lands in the city of Mount Vernon, on the ground that its execution was procured by defendant by duress and undue influence.

Underlying appellant’s contention is the general rule that a party seeking to avoid a conveyance or contract on the ground of fraud, duress dr imdue' influence, must -restore the other party to the same position he occupied before the conveyance was made and return to him all that he has received in execution.of .it, and it is argued that as the marriage, which was the sole consideration of the deed in the case at bar, is not attacked and cannot be annulled in this action, it must fail.

It is unquestionably true that he who seeks equity must do equity, but conceding defendant’s contention that the marriage was the sole consideration of .the deed, the fairness of the transaction is subject to the scrutiny of the court, and the learned Special Term found on Sufficient evidence that both the deed and marriage were part of a scheme on the part of defendant to obtain plaintiff’s property;

In Hammond v. Pennock (61 N. Y. 145) Dwight, Commissioner, writing upon .this subject, quotes from Masson v. Bovet (1 Den. 69) as follows: “ If, therefore, he has so entangled himself in the meshes, of his own knavish plot that thé party defrauded cannot unloose him, the fault- is his own, and the law only requires the injured party to restore what he has received, and, as far as he can, undo what had been done in the execution of the contract. This is all that the party defrauded can do, and all that honesty and fair dealing require of him. • If these fail to extricate the wrongdoer from the position he has assumed, * * * it is in no sense the fault of his intended victim,, and upon the principles of eternal justice whatever consequences may follow, they should rest on the head of the offender alone.”

■ The distinction sought to be made between the deed under consideration and ante-nuptial agreements rests upon no substantial ' foundation, and does not remove the case at bar outside the operation of the rule stated. The deed was made.in view of approaching marriage which had been agreed upon prior to its execution. It presents no different conditions than exist in all ante-nuptial contracts, unless it may be said that marriage was its sole consideration. It necessarily follows that as a portion of the consideration of all agreements depending upon marriage, whether nuptial, ante-nuptial or post-nuptial, is the marriage itself, if the marital relation existing between the parties furnished a bar to maintaining an action by either to set aside a conveyance made in anticipation of marriage upon the ground of fraud, undue influence or duress, it would be a bar to the enforcement of an ante or post-nuptial agree-. ment preceded or followed by marriage. This doctrine has been repudiated by the Court of Appeals in the cases of Pierce v. Pierce (71 N. Y. 154) and Graham v. Graham (143 id. 573) where such contracts were set aside for unfairness and fraud, although the marriage had taken place and the relations,arising therefrom existed . at the time of the trial.

The case of North v. Ansell (2 P. Wms. [Eng. Ch.] 619) is not in conflict with the conclusions reached in the cases cited, it being specifically stated by the master of the rolls in his opinion that there was not “ the least evidence of any fraud ” in .the case.

Conceding, the appellant’s contention that the evidence is insufficient to establish the alleged physical condition of the plaintiff, there is sufficient in her testimony, considered in the light of the . confidential relations existing between the parties, to sustain the findings of the learned Special Term of duress and undue influence. That the- defendant possessed no love for the woman he was about to make his wife is apparent.

The appellant argues that the threats found by the trial court to have been made by the defendant, as an inducing cause to the execution of the deed, are insufficient to constitute duress, and cites several authorities in support of this contention, but they are not controlling. Lord v. Lindsay (18 Hun, 484) holds that duress must be pleaded in order to warrant evidence of its existence, and in further consideration of the question the court says: “ If the mortgage or a deed had been given - to the husband by the wife much slighter circumstances would invalidate it. Courts will watch carefully that the husband do not, by his marital control and influence, secure to himself his wife’s property. In such case undue influence alone may suffice to set aside tire transfer.” In Rexford v. Rexford (7 Lans. 6) the threat relied upon was that iff the plaintiff (the wife) did not sign a deed releasing her dower right in certain property she should not live with her husband in peace, which ■ was held not of sufficient gravity .to constitute legal duress. In Lynch v. Lauer (14 Misc. Rep. 252) the threat was by a landlord to evict a tenant who, nevertheless, remained in possession of the demised premises and paid rent for three years thereafter, and it was held that it was too late for the tenant to .take advantage. of such alleged wrongs; and in Martin v. New Rochelle Water Co. (11 App. Div. 177) the familiar rule was adhered to that a threat to enforce a legal right did not constitute duress.

In the case at bar the defendant threatened to sue the plaintiff for $2,500 —.there .is no pretense that she owed him such a sum — that he would cause others to- sue her for slander and other causes of action; that she would not live to see the inside of her completed opera house (“that she would be found dead'; that he would stop the work on the opera house in winch her money was largely invested ; that • he would smash everything and would ruin the whole business; that she would lose all of her property in the threatened litigations and would not have a cent left and would be working at the wash tub without a. rag to her back. These and other acts and threats established such a wrongful and undue influence exerted over the plaintiff, controlling her action, as justified the court in directing the judgment from which this appeal is taken.'

While some of the findings of fact are without evidence to sustain them, they are immaterial, do not change the result, and the exceptions do not present reversible error.

The judgment must be affirmed, with costs.

Woodwabd, Hookeb, Gaynob and Milleb, JJ., concurred.

Judgment affirmed, with costs.  