
    *Talley v. Robinson’s Assignee.
    November Term, 1872,
    Richmond.
    Absent, Botjadin, J.
    
    i. Specific Performance—Inadequacy of Consideration,  —In September 1864, R sells land to T for Confederate money, which iS paid, but the deed is not made. After the war T sues R for specific execution of cthe contract. If there he no other objection hut inadequacy of price, the contract will he enforced.
    2. Same—Duress.—R sets up the defense that the contract was made under duress; that he had been severely whipped by a mob and driven from the county. But it appears that T was in no way implicated in that outrage, though he had heard of it, and he gave R the price he asked for the land. The contract is valid.
    3. Contract—Unstamped—Admissible in Evidence.— Though the contract was not stamped until it had been filed as an exhibltwith the bill, it was admissible in evidence; and it would have been admissible though not stamped at the time it was offered in evidence.
    4. Specific Performance—Condition Precedent.—T admitting in his evidence that he promised to pay to A for B S75. in addition to the sum stated in the contract; though this is not stated in the contract or noticed in the pleadings, T should be required to pay it before specific performance is decreed.
    This is an appeal from a decree of the Circuit court of Cumberland county, in a suit brought by the appellant, William D. Talley, against John Robinson, for the specific execution of a contract for the sale of a tract of land lying in said county, sold by Robinson to Talley by an agreement in writing, under the hand and seal of said Robinson, bearing date the 2d day of September 1864. The vendor is described in the agreement as a freeman of color, of the county of Amelia. The quantity of the land is not mentioned in the agreement, ^though the land is therein otherwise sufficiently described.
    The said Talley thereby agreed “to pay to the said Robinson for the said land the sum of four thousand dollars in cash, as follows, viz: three thousand dollars, part thereof in Confederate treasury notes (new issue), and one thousand dollars, the balance thereof, in wheat, sheep, &c., viz: four sheep, eighteen bushels of wheat, and a small steer yearling.” The whole amount of the price mentioned in the agreement, was paid down by the purchaser, but the land was not then conveyed to him; probably because the vendor had not then received a deed from Samuel Osborne, from whom he had purchased the land, or a part of it. Robinson having refused after the war, to make a deed to his vendee, according to the said agreement, the said vendee, Talley, in February 1867, brought this suit against Robinson and Osborne to enforce the execution of the said decree. Robinson filed his answer to the bill, insisting that the contract was invalid and not binding on him, because;
    “1st, It was extorted from him, at a time when he was driven by violence from the county, and every right of a citizen denied him, and was made under duress; and,
    “2d, The said contract, and the alleged receipt for $3,000 (filed with the bill) are illegal and void, for the further reason that the same are not stamped according to the laws of the United States.”
    And he claimed a recision of the contract on principles of equity and justice. After the answer was filed Talley withdrew the agreement and had it stamped; after which he filed an amended bill, stating that he had had the agreement duly stamped since the filing of the answer; and in regard to the further ground relied on by Robinson for not performing his contract, “that he was driven from the county of Cumberland by violence^ and that said contract was made under duress;” the complainant *stated “that he had no agency whatever in driving the said Robinson from the county, nor any hand in oppressing him in any way, and that he entered into said contract freely and voluntarily, so far as complainant was concerned. ’ ’ He also stated that since the original bill was filed Osborne and wife had conveyed all their right, title and interest in the land to Robinson by deed duly admitted to record, of which an office copy was filed as an exhibit with said amended bill.
    Robinson filed an answer to said bill, in which he contended that it was too late to stamp the contract and receipt after complainant had used them, and repeated the defences relied on in his original answer; and he further stated, “that the complainant did not pay a fair price for said land. That $4,000 in Confederate treasury notes, in September 1864, was in fact but $133. That such a contract is inequitable, and ought not to be enforced in a court of equity;” and that he was ready to pay to complainant the value, in currency, of the Confederate treasury notes paid him for said land, so that no injustice will be done to complainant, and respondent would be restored to his rights. The only evidence taken in the cause consisted of the depositions of the vendor and the vendee. The vendor, Robinson, in his deposition stated that he had been whipped by R. B. Trent and a good many others (some twenty-five or thirty men), driven from the county, and forbidden to be seen in it; that he would not have contracted to sell the land had he not been forced to do it by the treatment he received as aforesaid; that he did not know what best to do with the property ; that they were cutting and chopping the timber so, he could not manage it; that being forbidden to be seen in the county he had to come in the night and go through the woods in the day, where he saw Mr. Talley and had a talk about the contract; that they afterwards met at the house of Margaret Hipscomb, where it seems thejT entered into the contract; *that Talley told him that Mr. Coleman (of whom Jt seems witness had asked advice), had written the contract, although he knew at the time that witness was afraid to be seen, because he had been threatened to be shot if seen in the county; that he was so flurried he did not understand the contract; and that the land was worth $4 per acre in good money at the time of the sale, and he thought it was worth the same when he gave his testimony.
    
      In his cross-examination the witness admitted that Talley had made no threats against him, and was not with Trent’s party when they whipped him. In answer to a question, “Did he apply to you to purchase the land in controversy, or did you make the application to him?” he answered: “We met in the woods on an old log. I went to see him about his blacksmith’s account at my shop, and we then got to talking about the land, and he said he would not mind buying to straighten his line.” To another question, “What did Mr. Talley agree to give you for the land?” he answered: “He said he would give me $4,000 for the land, and that he would pay to Betsy Anderson about $78 that I owed her for her dower right in another lot of land. ’ ’ The witness admitted that full payment had been made by Talley for the land, with the exception of the $78 agreed to be paid to Betsy Anderson, 'which witness said had not been paid.
    The vendee, Talley, in his deposition, in answer to a question, “Whether or not he had any agency whatever in mobbing the defendant, John Robinson, and driving him from the county of Cumberland?” stated as follows, to wit: “None at all. I was opposed to the whole proceedings, which John Robinson very well knew. I think I told him so the very day he speaks of in his deposition, when we were sitting on the log in the woods,- where he came to me. I told him if they drove him off on account of his being a rogue, there would be *a plenty more left behind. I was opposed to the whipping of him by Trent and his party. I was solicited to join them and refused. They were not the right sort of men for me.” Being asked to state, as well as he could recollect, all the circumstances attending his purchase of the land, he -answered: “The subject might have been mentioned the day we were sitting on the log, but I don’t recollect it. John Robinson sent for me to meet him at Frank Lipscomb’s, and I did so. We undertook to make a trade, and I agreed to give him $4,000, his price, for the land. He wished to reserve a parcel of timber trees, and this split us in the trade. I think the second morning afterwards he came to my house and called me out. He told me that he would agree to leave the timber out if I would agree to alter the contract, and take some wheat, and yearling and some sheep, to the amount of $1,000. I agreed to this proposition. He said that he would get Creed Coleman to draw up the contract, and it was agreed that we should meet at Margaret Lipscomb’s, and we met accordingly. The contract was drawn by Mr. Coleman and the money, $3,000, paid; receipts were delivered, and the property he was to get, as specified in the contract, was afterwards delivered to John Robinson.” In his cross-examination he admitted that at the time he contracted for the land he agreed to pay to Mrs. Betsy Anderson $75 for John Robinson, in addition to the $4,000, and that he had not paid it, though he said he was ready to pay it at any time he might get the deed. Being asked “Did you know at the time you made the contract that John Robinson had been severely whipped and driven from the county, and that he had been- forbid to come to the county?” he answered: “I did' not know it, because I did not see it; but heard so and believed it.”
    In August 1869, it appearing to the court that the said Robinson was a bankrupt, and that Samuel R. Seay had been appointed as his assignee, by consent of parties, *it was ordered that the cause be thereafter proceeded in in the name of said Seay as such assignee. On the 11th day of March 1870, the cause came on to be heard, when the court made a decree in the words, or to the effect, following, to wit: “It appearing from the evidence in this cause that the defendant, John Robinson, in disposing of the land in the proceedings mentioned, was induced to do so because of lawless violence, which, after inflicting great bodily injury on him, kept him in fear and jeopardy of his life; of all which the plaintiff was informed when he entered into the contract with the said Robinson for the purchase of the said land; and it appearing that the price agreed to be paid for the said land is inadequate; and it also appearing that the said contract was made for treasury notes of the Southern Confederate States as the standard of value, and that the $4,000 was, on the day the contract was made, only worth $166, and that the said land was, on the 2d day of September 1864, worth $500 at the least;” the court 1 ‘doth adjudge, order and decree that unless the said William D. Talley shall, in ninety days, pay to Samuel R. Seay, assignee in bankruptcy of John Robinson, the sum of $334 in gold, or its equivalent, he shall deliver to said Seay, assignee as aforesaid, the tract of land in the proceedings mentioned. But before the said Seay shall take possession of the said land, he shall pay to the said Talley the sum of $166 in gold, or its equivalent, it being the true value of the $4,000 in Confederate treasury notes paid by said Talley to said Robinson for the purchase of said land. And the court doth further adjudge, order and decree that unless the said plaintiff shall comply with this decree in ninety days, the sheriff of this county do deliver possession of the said land to the said Seay, assignee of said Robinson, as soon as he shall have paid the sum of $166 to the said Talley as aforesaid. ’ ’ From this decree Talley applied to a * judge of this court for an appeal, which was accordingly allowed.
    Marshall, for the appellant.
    J. Alfred Jones, for the appellee.
    
      
      He had been counsel in the cause.
    
    
      
      Specific Performance—Inadequacy of Consideration. —See Stearns v. Beckham, 31 Gratt. 391, also foot-note on this subject appended to Ambrouse v. Keller, 22 Gratt. 769.
    
   MONCÜRE, P.,

delivered the opinion of the court. After stating the case he pro-, ceeded as follows:

The ground of inadequacy of consideration relied on in this case, in resistance of the claim for the specific performance of the contract in the proceedings mentioned, is wholly unsustainable. In the first place, there is no proof of such inadequacy in the case. There is no proof that the land was not sold for its full value, in Confederate money. There is no proof as to what it was worth in Confederate money. There was some proof as to what it was worth in gold, or its equivalent, at the time of the sale. But it was not sold for gold or its equivalent; and could not have been at that time. The only currency of the country then was Confederate States treasury notes; and all sales of land then made for cash in that part of the country were made for that currency. Confederate money, though greatly depreciated at that time, had a value in the ‘purchase of land and many •other commodities, which greatly exceeded its value as compared with gold.

But if it could be considered, that the price for which the land was sold was inadequate; in other words, if there had actually been as great a disparity between the real value of the land, and the value of the consideration for which it was sold, as the court below supposed that there was; it has been held by this court, that mere inadequacy of consideration is not, of itself, a sufficient ground for refusing a specific execution of a contract. In order to have that effect, there must be something else in the case, which, in connection with the ground of ^inadequacy, would make it inequitable or unconscionable to enforce the specific performance of the contract. Hale v. Wilkinson, 21 Gratt. 75.

Then, is there any other ground of defence in this case, which, either in itself, or in connection with the supposed inadequacy of consideration, is a good defence to the suit?

The only other ground relied on which can possibly have that effect, is the alleged ground of duress. Can that ground have that effect?

Undoubtedly, a great outrage was perpetrated by certain persons upon Robinson (whatever his offence may have been), by whipping him and driving him from the county; and the perpetrators of it were liable to a prosecution and condign punishment therefor. And if any person concerned in or connected with, that outrage, had thereafter, and by means thereof, made the contract with Robinson for the purchase of his land, the contract might have been considered as made by him under duress ; and certainly a court of equity would not have afforded its aid to such person to compel the specific execution of the contract.

But it is not pretended by Robinson that Talley was in any manner concerned in, or connected with, that outrage. And Talley proves that he was not; that he was opposed to the whole proceeding; and that Robinson very well knew the fact. Possibly, Robinson might not have sold his land if he had not been driven from the county and forbidden to return to it. But how can that affect the question if the sale was fairly made to one having no connection with the outrage committed against him? The contract was deliberately and fairly made; the offer seems to have been first made by Robinson to Talley, after an ineffectual effort to sell the land to another; and Talley made the purchase at the price at which the land was offered to him by Robinson. There appears to have been a total absence of anjr attempt or *wish on the part of Talley to take advantage of Robinson’s situation, or to get the land at an undervalue. How then can it be said that the contract was made by Robinson under duress? He, Talley, had heard and believed that Robinson had been severely whipped and driven from the county, and forbidden to return to it. But that fact did not incapacitate Robinson to sell the land, or Talley to buy it. To be sure it was good cause for exciting the cautious scrutiny of the court, to ascertain if there was any unfairness in the transaction. But having ascertained, upon the closest scrutiny, that the conduct of the purchaser was perfectly fair, as it seems clearly to have been, there was nothing in the situation of Robinson, or the circumstances under which the contract was made by him, to afford him any good ground of defence, either taken by itself or in connection with the supposed inadequacy of price, to a suit for the specific performance of the contract.

There is certainly no ground for the defence of duress in the case, as the authority cited in the brief of the counsel for the appellant clearly shows. The duress (as the counsel correctly say) must have for its object the procurement of the contract. “The threatening, beating or imprisonment must be to this end; and hereupon the deed must be made; for otherwise the deed shall not be said to be by duress.” “If I be imprisoned at one man’s suit (be the cause just or not), and being in prison, I make an obligation or any other deed to a third man, this shall not be said to be by duress, but it is a good deed.” 1 Sheppard’s Touchstone, p. 61.

There was another ground of defence taken by Robinson, to wit: that the contract and receipt for the purchase money were not duly stamped according to the laws of the United States when the suit was brought, and, therefore, could not have been used as evidence in the suit. There are two sufficient answers to this ground of defence: 1st. That the said instruments were duly ^stamped in the progress of the cause, and before they were used as evidence therein; and 2ndly. That the omission of a stamp required by a law of the United States, while it may be an offence punishable by the courts of the United States, does not affect the question of the admissibility of evidence in a State court. 21 Gratt. 78.

We think, therefore, that this is a proper case for the specific execution of the contract.

But it appears from the evidence in the cause that, in addition to the price agreed in the contract to be paid for the land, Talley agreed to pay to Mrs. Betsy Anderson $75 for Robinson, and had not paid it when his deposition was taken; though he said therein that he was ready to pay it when he got the deed. To be sure, nothing is said in the pleadings in the cause, or in the written contract, about this $75. But still it ought to be paid, if it has not already been paid, and sdch payment ought to be made as a condition of the relief to be given by the court by way of specific execution of the contract.

We are, therefore, of opinion that the decree appealed from ought to be reversed, and the cause remanded to the court below for further proceedings to be had therein, in order to a specific execution of the contract according to the principles declared in the foregoing opinion ; and that an account should be taken, if necessary, to ascertain whether the said payment has been made to Mrs. Anderson, and if such payment has not already been made, it ought to be required to be made, as a condition of the specific execution of the contract in behalf of the appellant.

The decree was as follows;

The court is of opinion, for reasons stated in writing and filed with the record, that the appellant is entitled to have a specific execution of the agreement filed with *the bill. But although he has paid the full amount of the consideration expressed in the deed, yet as it appears from his admission in his testimony, that he had agreed to pay to Mrs. Betsy Anderson seventy-five dollars for the appellee, John Robinson, in addition to the four thousand dollars, the amount of the consideration expressed in the deed, and had not paid the said sum of seventy-five dollars at the time he gave his testimony; the court is of opinion that he ought to be required to make such payment, if he has not already made it, as a condition of the specific execution of the said agreement, and that an inquiry should be made by a commissioner of the court, if necessary, to ascertain whether such payment has been made or not. Therefore, it is decreed and ordered that the said decree be reversed and annulled; and that the appellee, Samuel R. Seay, assignee in bankruptcy of the appellee, John Robinson, dp pay, out of the assets of the said bankrupt, to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the cause be remanded to the said Circuit court to be further proceeded in to a final decree, in pursuance of the foregoing opinion. Which is ordered to be certified to the said Circuit court of Cumberland county.

Decree reversed.  