
    M. W. Wilkerson vs. J. Preston Bishop et al.
    
    1. Duress. Difficulty of deteimining what shall constitute duress. Mental. condition of the party. It is difficult to declare what circumstances of fear and terror operating upon the mind of a party shall constitute such duress as will avoid a contract, for from the nature of the case, no testimony can show with certainty, what the actual mental condition of the party was.
    2. Same. Threats or other attempts at intimidation. Because it is shown that it was dangerous to refuse a particular kind of currency, it does not follow that every man who receives it is impelled by fear of danger. But when threats or other attempts at intimidation are proven, then the fact of the danger to which the party disregarding the threat is exposed, is a fact which, proven in connection with the threat, may complete the duress.
    3. Same. Same. Banger must not only exist, but, -must be the motive that prompted the act. To constitute duress, the danger must not only exist, hut must he shown to have actually operated upon the mind, and to have constituted the controling motive for ..the performance of the act sought to he avoided.
    4. Same. Same. Burden of proof upon complainant. The burden of proof is, and ought to he, upon the complainant, to establish the faGt of duress, either by direct or circumstantial evidence, and it can not he permitted to set aside solemn contracts, merely because the complainant may have made them under duress.
    PROM ANDERSON.
    At the May Term, 1866, Chancellor S. R. Rodgers pronounced a decree in favor of complainants^ from which respondents appealed.
    M. L. Hall and John L. Mttrphey, for complainants.
    -, for respondents.
   George Andrews J.,

delivered the opinion of the Court.

In the year 1857, the complainant, Wilkerson, made an agreement with the defendant, J. Preston Bishop, to sell him a tract of land in Anderson County, and executed to Bishop a bond conditioned for the conveyance to him of the premises.

To secure the payment of the stipulated purchase ■ money, which was seventeen hundred dollars, Bishop executed to Wilkerson his promissory notes payable in bankable money, and at different dates, the last note becoming due on February 1, 1862.

These notes were not paid at maturity; and in June, 1863, an arrangement was made between one Joseph Bishop, as agent for J. Preston Bishop, complainant Wilkerson, and one McIntyre, by which McIntyre, in consideration of two thousand dollars, was to become the purchaser of the land. McIntyre was to pay the amount due upon Bishop’s notes to Wilkerson, and pay the balance of the two thousand dollars to Bishop; and Wilkerr son was to execute a deed for the premises to McIntyre. This arrangement was carried into effect on the first day of July, 1863. McIntyre paid to Wilkerson fifteen hundred and thirty dollars in Confederate money, and assumed the payment of a debt of three hundred and twenty-six dollars due from Wilkerson to Dr. Coward. The notes of Bishop were delivered up, and Wilkerson executed and delivered to McIntyre a deed for the premises.

The Rebel authorities at this time, held possession of East Tennessee, and the country was under military occupation and control.

The bill in this cause was filed by Wilkerson, on the 30th of November, 1864, for the purpose of setting aside the illegal payment in Confederate money, and the deed made to McIntyre, upon the ground that complainant acted under duress in the transaction; and to enforce his vendor’s lien upon the premises conveyed for the unpaid purchase money.

The allegations in the bill in regard to the duress, are, that Joseph Bishop, as agent for J. Preston Bishop, called on tbe complainant and requested to pay tbe notes in Confederate money; that complainant expressed an unwillingness to receive tbe Confederate money and execute title, when said Joseph Bisbop told complainant that Confederate money was bankable, and be was bound to receive it; and that, in addition to that, persons bad. been sent South by tbe Confederate authorities for refusing to take Confederate money; and made other insinuations which intimidated complainant, knowing, as be did, tbe vindictiveness of tbe rebels and the disloyalty of tbe Bishops; that be executed tbe title under duress and fear of imprisonment, and would not have received tbe money or executed tbe title bad he not feared tbe Rebel authorities and desired bis personal liberty.

Tbe answers of Joseph Bisbop and McIntyre, tbe oath being waived, fully deny all tbe allegations of tbe bill in regard to duress. Tbe bill was taken as confessed against J. Preston Bisbop, who is a non-resident; and tbe Chancellor, upon final bearing, upon pleadings and proofs, decreed that tbe reception of tbe Confederate money by tbe complainant, and tbe execution by him of tbe deed to McIntyre, were under duress and fear; that tbe deed to McIntyre be set aside; that the payment and surrender of tbe notes was a nullity; and that the complainant have a decree for tbe amount of tbe notes against J. Preston Bisbop, which amount should be a lien on the land conveyed, and directed a sale of tbe land to satisfy tbe same; and that defendants pay tbe costs.

- From this decree, McIntyre and Joseph Bisbop have appealed to this Court. Tbe testimony in tbe case, stows that at the time of the transaction in question, Confederate money was very much depreciated in value; that it was generally understood in the community that E. Kirby Smith, the general in command of the Rebel forces in this region, had issued an order requiring all persons to accept Confedérete money in payment of debts; and that disobedience to the order might subject persons, and especially Union men, at the pleasure oí the military authorities, to summary transportation to the South, and imprisonment. Men of known Union sentiments were objects of suspicion, and their situation was one usually of some peril, as was generally understood. The testimony of several witnesses tends to show that it was understood that for a known Union man to refuse to accept payment of a debt in Confederate money, was attended with some risk. Meanwhile, Confederate money was the principal currency of the country, and was paid and received by all parties in transactions in which currency was necessary.

It is very difficult to declare what circumstances of fear and terror, operating upon the mind of a party, shall constitute such duress, as shall avoid a contract; for, from the nature of the case, no testimony can show with certainty what the actual mental condition of the party was.- “The stress of terror, or force upon the creditor, which would fall much short of duress in the legal sense, in the condition of peace, the prevalence of law, and the readiness of the officers of the law and of the people to give protection and redress to the injured, and when the sense of security and safety gives confidence and courage, may fairly and properly be deemed duress in the midst of civil war, when soldiers and marauders traverse the country, uncontrolled and uncon-* trollable, and the general terror so paralyzes every man that none will give aid or defense to another; and when a temper of violent intolerance, as an epidemic, exasperates the people against those who incur their displeasure; and unpopular creditors, or persons doing unpopular acts, are justly overwhelmed with a sense of wrong, peril, and helplessness: Jones vs. Thomas, 5 Cold., 469.

Still, from the fact, if proved, that it was generally understood in the community that it was unsafe to refuse to accept Confederate money, and that such refusal would subject the party refusing to peril of imprisonment, we are not authorized to infer that every act of reception of such currency was under duress; for .the fact remains, that it constituted the ordinary currency of the country, and that voluntary transactions were usually carried on by it. Because it is shown that it was dangerous to refuse a particular kind of currency, it does not follow that every man who receives it is impelled by fear of danger.

When threats, or other attempts at intimidation, are proven, then the fact of the danger to which the party disregarding the threat is exposed, is a fact, which, proven in connection with the threat, may complete the duress. But mere proof of the existence of the danger,, without proof that it in fact, operated upon the mind of the party, or that such threats or other means were employed as must tend to cause it to operate upon the mind, will not be sufficient to establish the fact of duress. If it were otherwise, every contract, the consideration of which was Confederate money, entered into during the reign of terror spoken of by the witnesses in this case, might be set aside. To constitute duress, the danger must tot only exist, but must be shown to have actually operat d upon the mind, and to have constituted the controlling motive for the performance of the act sought to be avoided.

It must be difficult in many cases, for the complainant to prove affirmatively the effect and operations of external circumstances upon his own mind; but the burden of proof is and ought to be, upon him, to establish the fact of duress by direct or circumstantial evidence; and it cannot be permitted to set aside solemn contracts, merely because the complainant may have made them under duress.

In the present case, the evidence does not sufficiently show that the complainant acted under duress in receiving the Confederate money, and executing the deed in question.

There is no evidence, whatever, that any threats were made, or insinuated by any one, to induce his action, except from the statements of complainant himself, made out of the presence of the defendants, and not a part of the res gestee. Complainant made no objection at the time the Confederate money was paid, and the deed delivered; and there is evidence that he had previously expressed his anxiety that the sale should be consummated. He knew that Dr. Coward, on the same occasion, declined to receive Confederate money in satisfaction of a lien which he held upon the land; and complainant himself made an arrangement with McIntyre, tbat McIntyre should pay off this lien in bank notes. The complainant, about the same time, received payment in Confederate money, without objection, of a debt due to him from another party. He voluntarily invested most or all of the currency received by him in tobacco, a circumstance which may be looked to as tending to show whether he willingly accepted it at the time when it was delivered to him, or subsequently, in satisfaction of his demand: 5 Cold., 470. There is, in fact, no allegation in the bill that the complainant did not make use of the Confederate money, or that it has remained in his hands, or that he has sustained any loss or damage in the transaction whatever.

We are unable to find sufficient evidence in this record to sustain the decree of the Chancellor; and the decree must be reversed, and the bill dismissed.  