
    Glass & Co. v. Haygood.
    
      Bill in Equity to concel Mortgage on account of Duress.
    
    I. Duress of goods; when party entitled to cancellation of contract. When the possession of one’s goods is unlawfully held against him, and he has such, an important, urgent and immediate occasion for their possession and use as can not be subserved by a resort to the courts to recover them, he may avoid any contract he enters into with the wrongdoer, in order to regain possession of his goods; the duress of the goods under such circumstances rendering the contract invalid.
    Appeal from the Chancery Court of Montgomery.
    Heard before the Hon. W. L. Parks.
    The bill in this case was filed on June 12, 1900, by the appellants, C. It. G-lass & Co., against the appellee, J. C. Haygood. The bill averred that the complainants, a partnership, were engaged in the business of conducting a public laundry in the city of Montgomery; that for the necessary conduct of its business they owned and were compelled to keep several liorses and wagons for the purpose of carrying the clothes of their customers to and from the laundry; that it was especially necessary that said horses and wagon should be at the use of complainants, and this was well known to defendant; that the defendant had kept for some time their horses and wagons at the livery stable owned and operated by the defendant; that on the morning of Monday, the 14th day of May, 1900, the employees of complainant, as was their custom and duty, went to the livery stable of the defendant to get the horses and wagons for the purpose of collecting from the customers of the complainant the clothing to be laundered; that the defendant refused to permit the employees of the complainant to get said horses and wagons, claiming that he held them for a debt which he alleged to be due from the complainant for the board of said horses; that one of the members of the complainant partnership protested with the defendant against the claim of the indebtedness and stated to the defendant that he did not owe more than $25, which he offered to pay; that the defendant refused to accept this amount, or to accept any amount, except the sum of $273.63, which was the amount the defendant claimed ivas clue from the complainant, and would not allow the complainants to get their horses and wagons except upon the condition that said amount be paid.
    The bill then averred as follows: “That the said Glass (one of the complainants) well knowing the utter insolvency of said Haygood and knowing that the business of the complainants would be ruined if they could not at once get the said horses and wagons out and sent around on their usual trips to their customers, and well knowing that complainants could not, by process known to the law, get possession of said horses and •wagons in time to prevent the ruin of their business, and acting under the duress and fraud of the defendant thereupon, and on defendant’s demand, paid him the sum of twenty-five dollars in cash and executed and delivered to the defendant a mortgage and two notes for the aggregate sum of two hundred and forty-eight dollars, the said, mortgage being to secure the said notes and purporting to convey to the defendant said horses and wagons. One of the said notes for one hundred and twenty-five dollars is due and payable on the 14th day of June, 1900, and the other for a like sum due and payable on the 14th clay of July, 1900. That the defendant is now in the possession of the said notes and has filed the said mortgage for record in the office of the probate judge of Montgomery county, Alabama. Orator aver that the said Glass, as partner in said firm, had no power to' sell or mortgage any other than his own individual interest in the said horses and wagons which are the property of said partnership.' And orators aver that said notes and mortgage were obtained by the defendant by fraud and duress, as aforesaid.”
    The complainants then averred in the bill facts going to show that after having paid the sum of $25, they were not indebted to the defendant except in the small amount of 60 cents, which they then averred they had tendered to the defendant, but which was refused by him. After averring further that the defendant ivas wholly insolvent and that nothing could be made out of him by suit at law, the complainants further averred: “That they are wholly without any legal remedy in the premises; that unless restrained by an injunction or other restraining order the said defendant will undertake to seize, under the power contained in the said mortgage, the said horses and wagons and that he threatens to do this unless these complainants pay the full amount of the face of said notes. Complainants attach hereto a copy of said mortgage, marked Exhibit A, and made a part of this bill.”
    The complainants submitted themselves to the jurisdiction of the court, and offered to do all that the court might in equity and good conscience require of them. J. C. Haygood was made the sole party defendant.
    The prayer of the bill Avas that said Haygood be enjoined from collecting the notes and foreclosing the mortgage given to secure them, and that the said mortgage and notes be required to be cancelled and delivered up. To this, bill the defendant demurred upon the following grounds: “1. The said bill of complaint does not state in Avhat the fraud consisted. 1-J-. The bill of complaint shows on its face that C. B. Glass had the right to mortgage the horses and wagons described in the mortgage. 2. The bill of complaint does not state in Avhat the duress consisted. 3. The said bill of complaint states the conclusion of the pleader. -4. The said bill of complaint does not sIioav hoAV the duress or fraud Avas committed, but only states that duress and fraud Avas committed. 5. The said bill of complaint does not sufficiently state facts which constitute fraud or duress. 6. The bill of complaint shows upon its face that the complainant had a remedy at law. ■ 7. The bill of complaint only shoAVS that the complainants Avoulcl have been inconvenienced, but does not show either duress or fraud. 8. The bill of complaint shows that the complainant has waived any duress or fraud by failing to take any action on the cause until too late.” There was also a motion made to dismiss the bill for the Avant of equity, and another motion made to dissolve the injunction for the want of equity in the bill.
    On the submission of the cause upon the demurrers and motions the chancellor sustained each of them and ordered the bill dismissed and the injunction dissolved. From this decree the complainants appeal, and assign the rendition thereof as error.
    Gordon Macdonald, for appellant,
    cited Ferguson v. Winslow, 34 Minn. 384; DeGraff v. Ramsey County, 46 Minn. 319; State v. Nelson, 41 Minn. 25; Mearkle v. Hennepin County, 44 Minn. 546; Oceanic S. Nav. Co. v. Tappan, 16 Blatch. 297; Joannin v. Ogilvie, 15 L. R. A. 376, which cites the foregoing; Brummagim v. Tillmghast, 18 Cal. 265; Radich v. Hutchins, 95 TJ. S. 210; Preston v. Boston, 12 Pick. 7; Dakota County Commissioners v. Parker, 7 Minn. 267; Frazer v. Pendleberg, L. J. C. P. 1; Pemberton v. Williams, 87 111. 15; Close v. Phillips, 7 Man. and C. 586; White v. Heylman, 34 Pa. 142.
    Hill & Hill, contra,
    
    cited Davis v. Rice, 88 Ala. 388; 10 Am. & Eng. Ency. Law (2d ed.), 337; Lynn v. Waldo, 36 Mich. 347; Lynch v. Sauer, 16 Mise. Rep. 1; Lehman v. Shackelford, 50 Ala. 437; Long v. Slade, 121 Ala. 269; Orommelin v. McCauley, 67 Ala. 542.
   McOLELLAN, C. J.

“Whenever a conveyance or contract is obtained by actual duress, equity will grant relief, defensively or affirmatively, by cancellation, injunction, or otherwise as the circumstances may require. In determining what constitutes duress — what force or threats — equity follows the law.” — 2 Pomeroy’s Eq. Jur., § 950. “Under the common-law rule, an act could be avoided for duress per minas only when the threatened danger to avoid which it was done was either loss of life, loss of a member, mayhem, or imprisonment. The avoidance of an act for duress per minas was said by the old authorities, still adhered to by the English courts, to have been limited to these cases because the law afforded an adequate redress for the infliction of any other injuries, and for this reason a threat to commit any of them was insufficient to overcome the will of a reasonably firm man. * * * The rule at common law, and that prevailing in England, and probably some of the United States, is that the unlawful detention, or the unlawful actual or threatened seizure of a person’s goods does not ordinarily constitute duress which will enable him to avoid a contract made for the purpose of preventing the seizure or of effecting their release from unlawful detention.” — 10 Am. & Eng. Ency. Law, pp. 324, 344-5. The foregoing are accurate statements, so far as they profess to go, of the law except that it seems to be settled in England at least that there can be no “duress of goods” under any circumstances which wall enable the owner to avoid a contract-made to secure'their release or immunity from unlawful seizure. And this view was expressed by Saffold, J., harking back to Bacon’s Abridgment, in Lehman v. Shackleford, 50 Ala. 437, where he says: “As to the second charge, there is nothing in the testimony tending to show duress, which relates to fear of imprisonment; mayhem, loss of life, or of a member. Menacing to commit a battery, or to burn one’s house, or- to spoil his goods, is not sufficient to avoid his act. For if he should suffer what is threatened, he may sue and recover damages in proportion to the injury done.” The ruling made might better have been rested on the consideration that there was no evidence of an unlawful seizure, nor of a threatened and imminent unlawful seizure of the goods of the party who did the act from the supposed consequences of which he was seeking to shield himself on the ground that he acted under duress; and therefore what we have quoted from the opinion is in the nature of a dictum. We have not been referred to and we are not aware of any other Alabama case which by way of dicta or otherwise tends to support the strict English rule. And it is laid down in the Encyclopedia that “In the United States there is one universally recognized exception to the old common-law rule. In those cases where the contract may be made to prevent the impending destruction of the property, and no ready and adequate redress may be had if the impending destruction is consummated, the contract may be avoided for duress.” — 10 Am. & Eng. Ency. Law, p. 345. Among the cases cited by this text, is that of Foshay v. Ferguson, 5 Hill (N. Y.), 154. In that case the court, after referring to the common-law rule, said: “But Mr. Ohitty very justly doubts whether such be the rule at the present day, especially in regard to so serious an injury as a threat to burn a man’s house. * * * I do not intend to say that a man can avoid his contract on the ground that it was procured by an illegal distress of goods; but I entertain no doubt that a contract procured by threats and the fear of battery, or the destruction of property, may be avoided on the ground of duress. There is nothing but the form of a contract in such a case, without the substance. It wants the voluntary assent of the party to be bound by it. And why should the wrongdoer derive an advantage from his tortious act? No good reason can be assigned for upholding such a transaction.” So in Spaids v. Barrett, 57 Ill. 289, s. c. 11 Am. Rep. 10, the goods were oysters, which being of a perishable nature required special care. They were wrongfully taken and kept from the owner by means of a writ of attachment fraudulently obtained, and the person detaining them refused to surrender them unless an amount greatly in excess of what the owner owed to him was paid, exacting also from the owner a release of all damages which might have been sustained by the wrongful attachment; and where the owner in order to obtain possession of the oysters, paid the sum demanded and executed such release, the court held in an action for wrongfully suing out the attachment that the release might be avoided for duress. Other cases and texts have carried the doctrine of duress of goods still further. Thus the Supreme Court of Michigan, by Cooley, J., has declared that duress of goods may exist when one is compelled to an illegal exaction in order to obtain them from one who has them and refuses to surrender them unless the exaction is endured, and that where the exaction is the making of a contract, the contract may be avoided.- — Hackley v. Headley, (45 Mich. 569) ; and the same rule is laid down in Cooley on Torts, 506-7, as follows: “Duress is either of the person or of the goods of the party. * * * Duress of goods consists in seizing by force or withholding from the party entitled to it the possession of personal property, and extorting something as the condition for its release, or in demanding and taking personal property under color of legal authority, which, in fact, is either void or for some other reason does not justify the demand.” So in Georgia it is held that, “The seizure of property by force, and holding it until the owner executes promissory notes for its release, without the semblance of a consideration, is a species of duress, and a court of equity will relieve the maker by preventing a collection of the notes.” — Crawford v. Cato, 22 Ga. 594. The Supreme Court of Florida, following and reiterating the doctrine as declared by Judge Cooley, says further: “The authorities are abundant in support of the proposition that where a party has possession and control of the goods of another and refuses to surrender them except upon compliance with an unlawful demand, and there is no other speedy way left the owner of extracting them and saving himself from irreparable injury, but by paying money or giving a note, his doing so will be regarded as done under compulsion.” — Fuller v. Roberts, 35 Fla. 110. The Court of Appeals of Kentucky also holds that there may be duress of. goods which will avoid -a note and mortgage executed by the owner to recover possession unlawfully withheld. The case was this: A creditor fraudulently obtained possession of his debtor’s horse, and by refusing to surrender possession compelled him to execute a note for thirty or forty dollars more than was owed, and to execute a mortgage on the horse to secure the payment of the note. The creditor in due time filed a petition to foreclose said mortgage, and relief was denied on the ground that the execution of the paper had been secured by duress of the mortgagor’s goods, and that it was, therefore, void. The creditor resorted to deceit and trickery in obtaining the possession of the horse, and having reference to this, something is said in the case about fraud; hut such fraud only' operated in the case by way of emphasizing the unlawful character of the creditor’s possession, so that the case was decided in reality solely npon the ground that the defendant in the foreclosure proceeding was forced to sign the mortgage by duress of his goods. The court said: “In Spaids v. Barrett, (57 Illinois, 289), the court substantially held that there was no difference between the rule of law thac held a.contract might be avoided by reason of the duress of the person when entered into, and the one that avoided a contract for duress of the goods of the person entering into it, because the court says that in either the contract is not voluntary, but made through compulsion,” and upon the authority of that case and Foshay v. Ferguson, supra, the Kentucky court concludes with respect to the case before it: “We are of opinion that the entire contract was obtained by force, and was tainted with fraud, and therefore void.” — Lightfoot v. Wallis, 12 Bush, 498. The St. Louis Court of Appeals announces the same principle thus: “The rule now is that duress in its legal sense exists when there is an arrest of the person or seizure of the goods, or a threat or attempt to do one or the other. — Clafin v. McDonough, 33 Mo. 412; Vyne v. Glenn, 41 Mich. 112; Font v. Geraldin, 64 Mo. App. 165. Defendant attempted to show that the mules belonged to him; that Black had no authority to dispose of them; that the plaintiff refused on demand to give them up, and that he, defendant * * * signed the note in order to get possession of them. If such are the facts, it must be held that he signed the note under duress; for duress of goods exists when the owner is compelled to submit to an extortion in order to obtain possession of them from one who detains them' without lawful right or excuse.”- — Wilkerson v. Hood, 65 Mo. App. 491. And to the same effect the doctrine has been declared by the Supreme Court of Indiana: “No recovery can be had upon a note which the maker was induced to give either by duress of his person or to regain possession of his property unlawfully withheld. ‘A contract made by a party under compulsion is void; because consent is of the essence of the contract, and when there is compulsion there is no consent, for this must be voluntary.’ — 1 Pars. Con. (5th ed.) 392, After noticing the English lav of duress the same author lays down this general principle: ‘These distinctions, however, would not now probably have a controlling power in this country; but Avhere the threat Avhether of mischief to the person, or the property, or the good name, was of sufficient importance to destroy the threatened party’s freedom, the laAV Avould not enforce any contract AA'hieh he might be induced by such means to make.’” — Bennett v. Ford, 47 Ind. 264. And so in South Carolina: “Duress of goods, or of negroes, is a good plea to a bond given to procure their release,” etc. Collins v. Westbury, 2 Bay, 211. In Texas it is held that “a contract made in order to regain possession of property unlawfully detained may be avoided on the ground of duress,” the Supreme Court after referring to tiie English rule, continuing: “But at an early day a contrary ruling Avas made in this country. In 1797 the Supreme Court of South Carolina, in the case of Sarportas v. Jennings, 1 Bay, 470, held that a contract made in order to obtain possession of goods unlawfully detained could not be enforced. In Collins v. Westbury, 2 Bay, 211, the same court reaffirmed the doctrine. Since that time the doctrine has frequently been applied in numerous decisions in our State courts. * * * The weight of American authority is in favor of the doctrine that detention of goods under certain circumstances may constitute duress, and Ave think it is in accordance Avith the better reason.” — Oliphant v. Markham 79 Tex. 543; s. c. 23 Am. St. Rep. 263.

Some of the cases above referred to take no note of a distinction in England and in some of the United States betAAreen cases AAhere money is paid to secure possession of goods unlawfully withheld from the oavuer, and cases where a note or other form of obligation is given by the owner to regain possession of goods so detained. This is not surprising. When the matter is attentively examined, the Avonder is, not that these courts have taken no heed of such supposed distinction, but that any court ever did. In the former class of cases all the courts, English and American, hold that money so paid may be recoAmred in an action of indehit at us assumpsit proceeding on tlie theory that the payment is involuntary, as the English courts seems to make a point of expressing it, or under duress of goods, as it really is, whether expressed by the word “involuntary” or not, and as the American courts generally express it. And we are utterly unable to conceive any ground for allowing recovery of money so paid, which would not upon every consideration possible of obtainment in the premises, go in the same degree to support a defense to a note or other contract entered into to regain possession of goods unlawfully withheld. For example: A. unlawfully withholds the goods of B. He proposes to B. to surrender the possession if B. will either pay him one hundred dollars or will execute to him a promissory note at one day for that sum. If B. elects to pay the money all the cases hold that he may recover it back, the English courts on the ground that the payment was involuntary, the American because it Avas made under duress. But if B. elects to execute his note, he can, according to the English cases, be made to [iay the one hundred dollars on the next day, because the note Avas not made under duress, but voluntarily. It is to us an impossibility to comprehend this distinction. And when Ave go to the statement of the alleged grounds attempted by some English judges, Ave are but confirmed and reassured that it does not and cannot exist at all. The case of Atlee v. Backhouse, 3 M. & W. 632, is generally cited and put forward, as stating the grounds upon which the English courts deny the analogy between money paid and a contract made to obtain the release of goods wrongfully withheld. That Avas decided by the Court of Exchequer, composed of five judges. Four of the five made deliverances. The chief baron, Lord Abinger, seems to go upon the theory that unless goods Avrongfully seized are seized for the purpose of enforcing the payment of money, money paid for their release cannot be recovered back, and that in the case in hand the seizure was not made for the purpose of enforcing the payment of money. It requires no argument to demonstrate that this is not and never Avas the laAv: It is wholly immaterial what ac-tuates the unlawful seizure of another’s property. And if it had been the law, it would have had no application in that case because the seizure was made to enforce the payment of penalties claimed to have been incurred by the owner under the excise laws. Barons Borland and Gurnet did not touch upon the question we have in hand; and it was thus left to Baron Parke to set forth the distinction in question and the reasons for it. And thus he wrent about it: “There is no doubt of the proposition laid down by Mr. Erie, that if goods are wrongfully taken, and a sum of money is paid, simply for the purpose of obtaining possession of those goods again, without any agreement at all, especially if it be paid under protest, that money can be recovered back; not on the ground of duress, because I think that the law is clear, although there is some case in Viner’s Abridgment to the contrary, that, in order to avoid a contract by reason of duress, it must be duress of a man’s person, not of his goods; and it is so laid down in Sheppard’s Touchstone, (p. 61) — but the ground is that it is not a voluntary payment. If my goods have been wrongfully detained, and I pay money simply to obtain them again, that being paid under a species of duress or constraint, may be recovered back;, but if while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress.” The lameness and impotency of this statement is painfully obvious. In it the learned judge assumes the validity of the contract which was the question and the only question litigated in the case. Of course, if one to recover the possession of his goods unlawfully withheld makes a binding' contract, why the contract is binding — that’s all; and there is an end of his suit, brought on the theory that the contract is not binding. But this assumption of the judge is a minor and perhaps an inadvertent infirmity in his argument. In other respects it is inconsistent and self-contradictory on its face, and essentially so in law. He declares that such payment is not a payment under duress at all, but that it is a payment nnder a species of duress. We are not aware that there are different species of duress apportionable to this and to that act into which a party is illegally coerced, or that that sort of duress which constrains a party to pay money to .recover his goods is a different sort of duress from.that which constrains him to promise to pay money to recover his goods. We have had and now have the notion that anything done by one party which illegally constrains the other to an act against that other’s will is duress; and to say that an act is not avoided by duress but is avoided because it is not voluntarily done, is a patent contradiction in terms. The learned judge while undertaking to declare that a payment of money under the circumstances named is not a payment made upon duress of goods, has in fact declared that it is a payment under duress, and for that reason recoverable. All the American courts dealing with this subject have put the ground of such recovery expressly upon duress, actual or threatened, of goods, this court among them (Baisler v. Athens, 66 Ala. 194) ; and there is no other ground upon which it can be rested. This doctrine of recovery of money paid under duress being thoroughly established and proceeding upon a principle which palpably applies fully as well and cogently to contracts made upon duress of goods, cannot logically be excluded from - application to such contracts. The Supreme Court of Pennsylvania after adverting to the well established right to recover back money paid under duress of goods, proceeds: “If, therefore, such be the case, where the money has been actually paid, a fortiori is such a defense available in an action upon a promissory note extorted from the owner of goods unlawfully withheld to obtain possession of them.” — White v. Heylman, 34 Pa. St. 142, 145. We fully approve the language of Judge Gaines in Oliphant v. Markham, supra: “Notwithstanding the doctrine of the English courts [that there is no such thing as duress of goods], it is well settled by them that money paid in order to get possession of goods unlawfully detained may be recovered back. The two rules recognized by the courts of England, it seems to us, lead to an obvious absurdity; that is to say, when one pays money in order to obtain possession of Ms goods unlawfully obtained by another, he may recover it back; but if he gives his note under the same circumstances and for the same purpose he cannot resist its payment.” — 79 Texas, 543.

The exigencies of this case do not require us to decide whether in all cases where a contract is made to recover possession of goods unlawfully ivithheld from the owner, such contract may be avoided for duress. But upon the authorities and considerations to which we have adverted, Ave do hold, confining ourselves to the case before us, that AAdien the possession of one’s goods is unlawfully held against him, and he has such an important, urgent and immediate occasion for their possession and use as cannot be subserved by a resort to the courts to recover them — “such an immediate want of his goods, that an action of trover [or detinue] would not do his business.” — Astley v. Reynolds, 2 Strange, 916 — he may avoid any contract he enters into with the wrongdoer in order to regain possession of them. The bill of complaint brings this case within this ruling. It shoAVS an equity in the complainants to have the note and mortgage executed by them to the respondent to regain possession of their horses and wagons, cancelled and aAroided; and the chancellor erred in dismissing it for Avant of equity. The bill is perhaps faulty in some respects — as, for instance, in not positively aArerring with more particularity the immediate injury that would have ensued to complainants’ business from the longer detention of their property by the respondent — but it is not open to any of the objections taken by the demurrer. That should have been overruled.

The decree of the chancery court is reversed, and a decree will be here entered overruling the demurrers and denying the motion to dismiss for want of equity.

Reversed and rendered.  