
    National Bank v. Wheelock.
    
      Duress — Deed executed under duress voidable, not void — Neither party is entitled to jury, when.
    
    1. A deed executed during the duress of the grantor is not void, hut voidable only.
    2. On the trial of issues joined by a denial of the petition of the grantor, alleging that the deed was executed under duress, neither party is entitled to demand a jury.
    (Decided April 13, 1895.)
    Error to the Circuit Court of Cuyahoga county.
    On April 8, 1885, the defendant in error, Mrs. Wheelock, filed her petition in the common pleas court of Cuyahoga county, alleging in substance that on or about October 13, 1883, the plaintiff in error, The Commercial National Bank of Cleveland, Ohio, was a creditor of The Cleveland Chair Company, a corporation, in the sum of not less than $15,000.00; that her husband, C. S. Wheelock, and his father and brother were stockholders, directors and officers in said Chair Company; that it was then claimed by the bank that about $3,600.00 of said indebtedness was evidenced by forged acceptances of the drafts of said Chair Company, and that the forgeries had been committed by her husband and his father and brother, and caused them to be arrested and indictments to be presented against them on account of such forgeries; that this was done with the fraudulent intent of alarming and intimidating her and the defendants in said prosecutions, and of coercing her into the payment of said entire indebtedness of $15,000.00; that she thereupon became greatly alarmed, intimidated and bewildered; that in November or the early part of December, 1883, the bank, knowing that the Chair Company and all of its stockholders were insolvent, informed the plaintiff and threatened her that unless certain real estate described in the petition and owned by her and alleged to be of the value of $10,000.00, were conveyed to it, toward the payment of said indebtedness, said indictments would be prosecuted; that while she was overcome by fear, and her free agency destroyed, and her mind bewildered by said threats, she executed to the bank a deed for said real estate, and her husband being likewise overcome and coerced by such threats, joined her in the execution of said deed. She avers that by reason of the matters alleged, said deed is null and void, that she is the owner in fee-simple of said lands, is entitled to the possession thereof, and the bank unlawfully keeps her out of possession.
    A second cause of action is for rents and profits.
    She prays for a judgment against the defendant for possession of the premises, and for said rents and profits.
    In its first defense the bank admits its corporate character, the indebtedness to it of the .Chair Company, the conveyance of the real estate to it December 19, 1883, and denies all other allegations of the petition.
    In its second defense the bank alleges that the facts which led to the indictment- of the Wheelocks were submitted to the grand jury by the public prosecutor in the course of his duty; that an attorney representing’ them and the plaintiff called upon it and proposed that it should accept said real estate and some other property in satisfaction of its claim against the Chair Company, that it accepted said offer and upon receipt of said deed and the other property referred to, surrendered all the evidences of said indebtedness to it.
    Replying, Mrs. Wheelock denies that said attorney was employed by her, or in any way authorized to represent her.
    When the cause came on for trial in the court of common pleas, Mrs. Wheelock demanded that it should be tried by a jury, which demand was overruled by the court, and she excepted. The trial proceeded to the court, and resulted in a judgment in favor of the bank. Mrs. Wheelock’s motion for a new trial was overruled, and a bill of exceptions taken. She filed a petition in error in the circuit court, seeking a reversal of that judgment.
    
      In the circuit court the judgment of the common pleas was reversed for error, “in refusing to plaintiff a jury trial, and in holding that she was not entitled to try her right to possession, until she had first set aside the deed given by her to the defendant.” To reverse that judgment, is the object of this petition in error.
    
      James H. Hoyt, A. St. J. Newberry and A. C. Dustin, for plaintiff, in error.
    
      First — A deed of real estate made to stifle a criminal prosecution is an illegal transaction. When made, it is an executed contract and the court will leave the parties where it finds them. The facts as found by the court may be stated thus :
    1. The husband of Minnie E. Wheelock, the defendant in error, plaintiff below, her father-in-law and brother-in-law were under indictment for the crime of forgery and were guilty of the crimes charged against them.
    2. That the criminal prosecutions mentioned were not instituted by the bank for. the purpose of getting plaintiff’s property, and all negotiations looking to a conveyance of said property from Minnie E. Wheelock to the bank came from her husband,' his father and brother and their attorney.
    ■ 3. The deed of the premises described in the petition of Minnie E. Wheelock was made by her for the express purpose of stifling these criminal prosecutions.
    ■ 4. • At the time she made this deed she was not under duress, but acted of her own free will.
    There can be no dispute about the law applicable to this state of facts, and the court rightfully dismissed the plaintiff’s petition. The evidence offered by the plaintiff entitled her to no .relief against the bank. Her purpose and object being to stifle these proceeding’s and her contract having been executed, the court will leave her where it finds her. Roll v. Raguet, 4 Ohio, 420; Goudy v. Gebhardt, 1 Ohio St., 262; Hooker v. DePalos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195.
    
      Second — The plaintiff below, Minnie E. Whee-lock, was not entitled to a jury trial of this action.
    1. ' The remedy of an injured party is the same, whether he was induced to act through fraud or while under duress.
    There is no difference in the remedies given to a party, whether he be injured, or induced to act, through fraud, or compelled to act against his wishes, while under duress. 8 Am. & Eng. Ency. of Law, 649; 5 Am. & Eng. Ency. of Law, 430; 3 Am. &. Eng. Ency. of Law, 933.
    2. Deeds obtained through fraudulent representations or made under duress, are voidable, not void, at the election of the party injured. Contracts induced by fraud or made while under duress are sometimes said to be void, and sometimes said to be voidable. These terms are not always used with discrimination and care. We take it now to be the settled and the universal rule, that, where fraud, imposition or duress is practiced in inducing an engagement or contract, the party so frauded or imposed upon can rescind or get a rescission of the contract, as to .such party it is voidable, not void. Terrell v. Auchauer, 14 Ohio St., 85; Allis v. Billings, 6 Metc., 417; Anderson v. Roberts, 18 J. R., 529; Story on Contracts, section 405; Devlin on Deeds, par. 81; Knapp v. Thomas, 49 Ohio St., 388; Story on Contracts, section 405; Reece v. Allen, 5 Gilman Ill., 241; Frauchet v. Leach, 5 Cowen, 508; Williams v. Mears, 2 Disne, 608; Bigelow on Fraud, vol. 1, 73; George v. Tate, 102 U. S., 570; Hartshorn v. Day, 19 How., 223.
    3. There is a distinction between the rights and remedies of parties in the case or ordinary commercial contracts, and under deeds properly executed and delivered.
    
      a In ordinary business transactions, such as sales of personal property, a party induced to act through fraud, on discovery of the fraud, or having acted under duress, on being freed from the duress has a choice of two remedies — he can rescind his contract and recover back his property, or abide by and affirm his contract, and sue for damages. Strong v. Strong, 102 N. Y., 69; Bowen v. Mandeville, 95 N. Y., 237; Moller v. Tuskey, 87 N. Y., 166; Benj. on Sales, sections 648 et seq.; Syllabus, Doane v. Lockwood, 115 Ill., 490; Brewer v. Goodyear 88 Ind., 572; Talcott v. Henderson, 31 Ohio St., 162.
    
      b The deed of a party which was induced to make through fraud, is voidable, but this distinction exists between deeds and other contracts— that the grantor cannot, by his own act, cancel his deed, nor reinvest himself with the title to his property. This can only be done by a deed of reeonveyauce or by a court of competent jurisdiction. ,
    In Ohio no estate or interest, certain, or uncertain, freehold or term of years, can be granted, except by deed or note in writing, properly signed, or by operation of iaw, and such deed conveys to the grantee the entire estate, both legal and equitable. Sections 4106, 4198, Revised Statutes.
    The delivery of a deed passes title to the grantee and the destruction or cancellation of tJae deed would not reinvest the title in the grantor. Lindsley v. Coats, 1 Ohio, 245; Baldwin et al. v. Bank, 1 Ohio St., 148. Where a title has vested by delivery of a deed to the grantee, even the destruction of the deed by mutual consent before it is recorded, will not reinvest the grantor with the title, even though it was intended só to do and was destroyed for that purpose. Spangler v. Dukes, 39 Ohio St., 642; Starr v. Starr et al., 1 Ohio, 327.
    Our conclusion, therefore, is that the bank became the owner of the property described in the petition by the execution and delivery of the plaintiff’s deed to it, and can only be divested of its ownership therein and title thereto and right to use and enjoy the same by a deed regularly made, or by operation of law or the judgment of a court of competent jurisdiction. A court alone has power, or a deed duly executed is necessary to reeonvey the estate and title. Bigelow on Fraud, vol. I, p.. 76.
    This is exactly in harmony with the decisions hereinbefore cited from our own Supreme Court. Starr v. Starr, 1 Ohio, 327; Spangler v. Dukes, 39 Ohio St., 642; Truman v. Lore, 14 Ohio St., 144; Knapp v. Thomas, 39 Ohio St., 388; Walker v. Kynett et al., 32 Iowa, 524; Feret v. Hill, 15 C. B., 207; Hartshorn v. Day, 19 How., 223; Williams v. Mears, 1 Disne, 604.
    '4. The legal title and estate being in the bank, the plaintiff’s action was essentially one in equity, and she must get rid of her deed before she can get any relief. The relief asked .for is dependent upon the invalidity of her deed, which can be cancelled only by a court of equity.
    5. The reformed procedure, originally enacted ■in the Code, and more recently by the Revised Statutes, has not changed the rights or remedies of parties. If, before the adoption of the Code, a party’s rights were equitable in their nature, they are still equitable, and trials should be had to the court and not to a jury. If, before.the Code was adopted, they were legal in their nature, they are still legal, and parties are entitled to a jury trial. Dickson v. Caldwell, 15 Ohio St., 415; Pomeroy’s Remedies and Remedial Rights, section 68; Hager v. Reed, 11 Ohio St., 635; Kloney et al. v. Bradstreet, 7 Ohio St., 325; Rankin v. Hannan, 37 Ohio St., 118.
    6. At common law, in order to maintain ejectment, the plaintiff must have had the legal title, and the remedy provided by Revised Statutes, section 5781, is the same as the old action of ejectment. The plaintiff, therefore, must have had the legal title, or a legal estate in the premises, in order to have entitled her to a jury trial of this action.
    In an action of ejectment, a mere equitable interest will not avail as against the party having the legal title. Wallace v. Seymour et al., 7 Ohio St., 158.
    The remedy for fraud, when plaintiff executed the instrument, is in equity, not at law, and plaintiff cannot recover in ejectment where the legal title is in defendant. Truman v. Lore, 14 Ohio St., 144; Walker v. Kynett, 32 Iowa, 526.
    The equitable title accompanied with possession cannot be set up against the legal title in an action of ejectment. Lessee of Spencer v. Markel, 2 Ohio, 263; Smith's Lessee v. Hunt, 13 Ohio St., 268; Stehman v. Crull, 26 Ind., 436; Rowe v. Beckett, 30 Ind., 154; Groves et al. v. Marks et al., 32 Ind., 319; Peck v. Newton, 46 Barb., 173; Lombard v. Cowham, 34 Wis., 486; Clark v. Lockwood, 21 Cal., 222; Emeric v. Penniman, 26 Cal., 119; Kahn v. The Old Telegraph Miming Co., 2 Utah, 195; Gibson v. Chouteau, 13 Wallace, 103; Goepinger v. Ringland, 62 Iowa, 76; Rowland v. Entrekin, 27 Ohio St., 49; Adm. of Reed v. Reed, 25 Ohio St., 422; Ivinson, v. Hutton, 98 U. S., 79; Reid v. Burns, 13 Ohio St., 59.
    Reformed procedure does not affect the question or change the party rights, Minnie E. Wheelock’s right,, if she has any, is equitable, and the relief, cancellation of her deed, whether in terms such relief be given to her or not,. must in effect, be given her by the court, for, without in effect a cancellation of her deed, there can be no judgment in her favor. If the court finds her deed invalid, it, of course, can if it chooses award her possession and an accounting for rents and profits, as an incident to the judgment of cancellation, or it can refer the question of damages to a jury, but the equitable question of the right to a cancellation of that deed must be determined and disposed of before there can b¿ anything to try to a jury. Rowland v. Entrekin 27 Ohio St., 47; Massey v. Startford, 17 Ohio St., 597; Buckren v. Mear, 26 Ohio St., 514; Rankin v. Hannan, 37 Ohio St., 113; Shefull v. Murty, 30 Ohio St., 50; Dodsworth v. Hopple, 33 Ohio St., 616; Truman v. Lore, 14 Ohio St., 144.
    7. The facts stated, and not the prayer attached to the petition, determine the nature of the plaintiff’s action; Cory v. Gaynor, 21 Ohio St., 280; Reed's Admr. v. Reed, 25 Ohio St., 424; Moore v. Chittenden, 39 Ohio St., 563.
    
      Second — Even had the plaintiff been entitled to a jurytrial and a jury had been sworn in the case, the court, under the evidence presented by the plaintiff, rhust upon motion, have directed a verdict for the defendant, and the plaintiff, therefore,'. was not prejudiced by the action of the court in denying her a jury. Moore v. Adams, 8 Ohio, 375; Herbst v. Manss, 6 Bull., 336.
    
      There was no attempt made to prove, nor claim made on the trial of this ease, that the Wheelocks were innocent of the crime with which they were charged, but, on the contrary, the evidence all showed that they were guilty, and there was no question of their guilt or innocence to be left to a jury. Besides the answer stated their guilt and the reply did not deny that fact. It therefore follows that in the eye of the law, as announced by our courts, Minnie E. Wheelock was not under duress when she executed this deed.
    The sole purpose and object of Minnie E. Wheelock in deeding this property to the bank was to stop these criminal prosecutions against her relatives. Roll v. Raguet, 4 Ohio, 420; Goudy v. Gebhardt, 1 Ohio St., 262; Hooker v. DePalos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195; Moore v. Adams, 8 Ohio; 373.
    But there is nothingin the claim that she was not in pari delicto. It is well settled that parties stand inpari delicto-W&sr% the consideration of an executed contract was illegal and immoral, even though there was fraud or duress. Haines v. Rudd, 102 N. Y., 372; Smith v. Rowlay, 66 Barb., 502; Watkins v. Baird, 4 Am. Dec., 170; Meeks v. Atkinson, 19 Am. Dec., 653; Hatter v. Greenlee, 26 Am. Dec., 370; Devlin on Deeds, 81; Yeaman v. Lasley, 40 Ohio St., 190.
    There was absolutely no evidence that the bank had aught to do with obtaining of the execution of this deed, and therefore, the delivery of this, deed to Judge Ingersoll by her, and the surrender by him of the deed to the bank will bind her. Baldwin v. Snowden, 11 Ohio St., 203.
    
      
      Prentiss v. Vorce, for defendant in error.
    1. The plaintiff below was entitled to a jury trial, upon the ground that, whether the deed be treated as void or voidable, where the facts are found by the jury which render the deed void, the law makes it void ab initio, and. leaves the title in the party who made the void deed the same as if no deed had been made, and no order of court is necessary for any reconveyance or annulling of the deed.; and the plaintiff, therefore, needed no relief besides the judgment for the recovery of the possession, and for the rents and profits. 8 Am. and Eng. Law., 649.
    Duress is a species of fraud, in which compulsion, in one form or another takes the place of a mere deception. 46 Ohio St., 27; section 5130, Revised Statutes.
    It is perfectly manifest that, if the deed was void in the full sense of that term under the statute, or the decisions were criminal, prosecutions are unlawfully used to compel a conveyance, no title passed to the bank, no decree for a reconveyance or annulling of the deed was necessary, and the plaintiff was entitled to a jury trial. The penalties of fines and imprisonment imposed by the statute imply and constitute a prohibition against the receiving of the deed by the bank for the compounding or abandoning of the criminal prosecutions; and, assuming that the bank received the deed for abandoning the criminal prosecutions, the deed is thereby rendered void ab initio, and of no effect to pass any title, and incapable of ratification. Chitty on Cont., 597; U. S. v. Grossmayer, 9 Wall., 71; 19 Am. Dec., 71; 14 Ohio St. 85; 44 Pa. St., 12; 2 Pet. Sup. Ct., 539; 2 Story, E. J., section 695; 1 Story, E. J., section 298; Cox v. Donnelly, 34 Ark., 766; Burgett v. Burgett, 1 Ohio, 469.
    The statute, section 6901 having prohibited the bank from receiving the conveyance, and thereby left the title and ownership of the premises in the plaintiff below, the same as if no deed had been made, she cannot in law be denied the right to assert such title and ownership ; for in no other way can the public interest be protected, and the statute saved from disregard and violation. Any other view would hold out a premium for a violation of the statute, and defeat its object; for the large amount received would lead to a disregard of the small penalties named, and, as no one would be interested in prosecuting offenders under the statute, there would be little danger of its being enforced. It is perfectly manifest, in this view of the case, that the rule of pari delicto has nothing whatever to do with it, nor has the question as to the return of the notes anything to do with it, for the public have no interest in that question. Independently of the statute, the law makes a deed obtained by such unlawful use of criminal process' absolutely void, and entitled the party making it to recover the property; and in .such a case the law of pari delicto does not apply. Anderson’s Die. of Law, 387; Story Cont., sec. 394; 3 N. H., 508; 5 Hill, 158; 7 Wall., 215; Whar., Cont., sec. 151; 5 Hill, 158; 7 Wall., 215; Bishop Cont., sec. 721, 26 Barb., 122; 6 Wis., 54; 14 Cox’s Crim. law, Ca., 617; 42 Ohio St., 205.
    However the plaintiff was entitled to a jury trial even if the deed is to be treated as voidable only; for as already shown, that term means simply that the deed can be avoided by the party aggrieved, but not by any one else, and that it is just as competent for the law to stamp such a deed as void in' favor of the injured party, as it is to make a deed void as to all parties and incapable of ratification. The statutes as to the manner of executing deeds, and their recording having nothing to do with the case; for the question is not to the manner of making’ a deed, but to the vitiating and treating it as void. No decree or reconveyance or annulling of the deed is necessary in any point of view. The suit and the judgment for possession would constitute a public record, which, by section 5055 of the statute, is made notice to everybody, and no further record would be necessary, or if it were, a copy of the record of the ease could be recorded in the recorder’s office.
    The term “void” in section 4196 of the statutes against conveyances to defraud creditors has uniformly been construed by this court to mean “voidable, ’ ’ and this has been the established construction for over fifty years ; and it is fully established by the decisions of this court, under the code, that no decree of the court is necessary for a reconveyance, or annulling the fraudulent deed, but that the creditor may treat it as void, levy upon and sell the property and recover the possession of it by action of ejectment. These authorities, therefore, entirely defeat the long argument for the bank that ejectment cannot be maintained where the deed is only voidable. Burgett v. Burgett, 1 Ohio, 469; 10 Ohio, 163; 9 Ohio St., 433; 40 Ohio St., 107; 17 N. Y., 270; 13 Mass., 177; 100 Mass., 355; 5 Allen, 59; 7 Cush., 181; 13 Pa. St., 359; 92 Pa. St., 171; 100 Pa. St., 51; 56 Ill., 25; 77 Ala., 290; 57 Wis., 288; 109 U. S., 485.
    There is not only testimony tending to show, but absolutely showing, that the bank made use of the criminal prosecutions for the purpose of coercing Mrs. Wheelock into making the deed, and that it was made and delivered solely because of such unlawful use of the criminal prosecutions, which produced such a degree of fear and distress that her mind and will were overcome, and she would not otherwise have executed it, and she was not therefore in pari delicto. In other words, the evidence sustained the averments of fact in the petition. This being so, she was prejudiced by the refusal of the court to grant her a jury trial. Dick v. Railroad Co., 38 Ohio St., 389.
    The question as to the condition of her mind, and whether her mind and will were overcome, were for the jury; and the only inquiry now is whether there was testimony tending to show that this was so.
    It is claimed that the party is always in pari delicto unless his innocence can be shown, in other words, that, if he is guilty, he may be coerced by threats and his mind and will overcome, and still be in- pari delicto, and without remedy. This is a clear mistake, for the rule is founded on public policy, and does not depend upon the guilt or innocence of the party, as we have conclusively shown by the authorities cited and those which follow; and besides, the statute now especially covers all cases of receiving property for compounding or abandoning a criminal prosecution, without any reference whatever to the guilt or innocence of the party. The other eases in this state cited for the bank relate to gambling, betting, gaming and lotteries, and are not in point, for in all these the parties voluntarily unite in violating the statutes, and there is no coercion. Devlin on Deeds, section 83; Blair v. Coffman, 5 Am. Dec., 659; 26 Am. Dee., 376; 14 N. Y., 123; 11 Mass., 379; 13 Mass., 371; 14 Ohio St., 151; 17 Am. and Eng. Law, 406; 3 Am. and Eng. Law, 933, note 2; 22 Pick., 181; 28 Ohio St., 260; 107 N. Y., 111; 47 Conn., 223; 26 N. Y., 12; 14 R. I., 618; 131 Mass., 51; Bailey v. Williams, 4 Gifford, 638; 1 Law Rep., E. & I. App., 200; Law Reports, 8 Ch., Div, 473.
    It is claimed that Mrs. Wheeiock must procure the return of the paper which the bank gave up. This is not material, for, if the deed is void, the paper held by the bank would remain valid, and the bank could recover on it. If it were necessary to procure their return it would, be sufficient to do so at the jury trial, and the point is not material here. 11 Vt., 252; 13 Ves. Jr., 581; 151 Pa. St., 594.
    Mrs. Wheeiock never had, nor has she now, any control over the paper. She was simply coerced, through fear and distress, to make the deed, without receiving anything. It was the bank that received, and that too by means of its violation of the penal and criminal statute of the state; and it is not, therefore, entitled to ask any relief from the court, much less to ask anything which might result in defeating the clearly implied prohibition and public policy of the statute.
   Shauck, J.

That Mrs. Wheeiock did not, in her amended petition, pray for the cancellation of the deed does not aid in determining whether the. issues were triable to a jury or not. The execution of the deed was alleged in the petition, and, if it was an impediment to her recovery at law, it followed either that she was entitled to that relief upon the facts alleged, and without a specific prayer therefor, or that her petition did not state a cause of action. In either view, upon that assumption, the judgment of the court of common pleas should have been affirmed.

The contention of her counsel is, that Mrs. Wheelock’s legal title to the land remained unaffected by her deed, in view of the circumstances of its execution, and that, the deed being utterly void, she might recover possession by an action at law. But little reliance should be placed upon observations extracted from opinions and text books, where only the validity and binding character of contracts is considered, and where, without technical precision, the terms “void” and “voidable,” are used as equivalents.

It is suggestive that the combined industry of court and counsel have failed to discover a case in this state in which the grantor, having capacity to contract, in a deed executed in conformity to the provisions of the deeds act, has been permitted to assert rights contrary to its terms, without first securing its reformation or cancellation by a decree in equity, to be obtained upon the allegations and the deg'ree of proof there required, and upon such terms as may be imposed conformably to the doctrines of equity. Suits in equity for the cancellation of deeds in eases of fraud, undue influence and incapacity, are familiar in our practice. The constant exercise of the powers of courts of equity in cases of this character, has not been by chance or caprice, since the rule has been uniformly held that courts of equity do not act except to grant relief where the powers of courts of law are inadequate. The force of the inference to be drawn from this familiar course of practice, is not diminished by Westerman v. Westerman, 25 Ohio St., 500, or McVeigh v. Ritenour, 40 Ohio St., 107, since it is not the grantor, but his creditor, who, according to the doctrine of those cases, may treat á frudulent deed as a nullity, and the decisions are placed upon the provision of the statute, that evei-y grant made to defraud creditors, “shall be deemed utterly void and of no effect.” Revised Statutes, 4196. Indeed, it is well settled that, notwithstanding the comprehensive terms of this statute, such deed is, as against the grantor, effective to convey his interest, and that he cannot avoid it by any form of proceeding, either at law or in equity.

Nor is the question affected by the numerous cases in which deeds have been held to be void because of fraud not limited to the purposes for which they were executed or procured, but extending to the very execution of the instruments. They are cases where, in contemplation of law, the deeds were not executed.

It is the settled policy of the state, as indicated by a uniform course of practice in its courts, and by repeated decisions of this court, that instruments of this solemn. character, executed in conformity to the provisions of the deeds act, shall not be set aside or defeated of their natural purpose, except upon proper allegations which are supported by evidence of a clear and convincing character. The mere preponderance of evidence, which is sufficient to determine the verdicts of juries in civil actions, is not sufficient. Potter v. Potter, 27 Ohio St., 84; Ford v. Osborne, 45 Ohio St., 1.

“The distinction between the terms ‘void’ and ‘ voidable, ’ in their application to contracts, is often one of great practical importance; and whenever entire technical accuracy is required, the term ‘void ’ can only- be properly applied to those contracts that are of no effect whatsoever; such as a mere nullity, and incapable of confirmation or ratification.” Terrill v. Auchauer, 14 Ohio St., 80.

The distinction suggested between deeds that are void and those that are voidable only, is usually regarded as determining the necessity for the interposition of a court of equity. Applying it here i¿ would seem to justify the ruling of the court of common pleas, since it is not doubted that Mrs. Wheelock’s deed was capable of ratification.

But it is said that the judgment of the circuit court was controlled" and justified by Cresinger v. Lessee of Welch, 15 Ohio, 156. It was there decided that if an infant conveys land, and, after attaining his majority, conveys the same land to another, such subsequent conveyance is a disaffirmance of the former, and the grantee in the subsequent deed may maintain ejectment. That case is distinguished from the present case upon clear grounds. The deed against which the title of the subsequent grantee prevailed was the deed of one who was without power to contract. The theory of the ease is that the deed was, when executed, ineffectual to pass title because of the want of capacity of the grantor to contract, and that it so remained until effect should be given to it by ratification. In this case Mrs.Wheelock had capacity to execute the deed, and it was effectual to convey the title subject to her right to avoid it in a proper suit because of the circumstances under which it is alleged to have been executed.

Duress is but the extreme of undue influence, and there appears no reason why a deed, voidable because of its exercise, should not be cancelled in the same manner and subject to the same conditions that are imposed in courts of equity, in suits to avoid deeds obtained by fraud or undue influence.

The consideration of other questions argued by counsel is unnecessary.

Judgment of the circuit court reversed, and that of the commo n pleas affirmed.  