
    Banjamin Moore v. A. P. Adams and Jacob Newkirk.
    A conveyance of land made in consideration of compromising alleged causes of action for slander and malicious prosecution, and also in consideration, of forbearing to urge a prosecution for perjury, is a contract executed, and not to be set aside in equity upon allegations that there was no legal foundation for such suits or prosecution.
    In chancery, from Seneca county.
    The bill alleges, that in May, 1831, a prosecution for forgery was instituted by the complainant against the defendant Adams, before xi justice of the peace, and that, on examination, Adams was discharged, owing in a great degree to the skill and ability of an attorney employed by him. That immediately after the discharge, the said attorney informed the complainant, that Adams was about to commence criminal proceedings against him for perjury in the testimony he gave on said examination, and that he had also been employed to commence suits for Adams, against the complainant,, ■for slander, and for malicious prosecution ; that the expense of defending said suits would amount to $500 ; and it would be much better for him to settle with Adams, and prevent such proceedings. That said attorney, the better to impose on his credulity, secure his confidence, and deprive him of his legal rights, assured the •complainant in the most solemn and impressive manner, that although he could not assist him in defending the prosecution for perjury, nor defend the other suits for him, he was under the •strongest moral obligation to tell him the truth, and he assured him of his sincerity; the justice refused to advise the complainant what he should do; he was without counsel; that an affidavit was ■prepared, and the attorney said if the prosecution was once commenced, it must take its course, and then was the time to settle all ■the difficulties, to prevent further proceedings. A warrant was then prepared, and the declaration .made, that no further delay would take place.
    The complainant asserts that although perfectly innocent of *crime, he thought the pubic mind might be prejudiced against him, if the threatened prosecution and suits were commenced ; that he was embarrassed and dejected by the circum•stances thrown around him, and thus, bewildered as he was, ho agreed to compromise with Adams, and pay him $100 in satisfaction of all their difficulties, upon his (Adams’) assurance that he would do all in his power to prevent any future investigation, and the declaration of said attorney, that such compromise would Save complainant from inevitable ruin, degradation and probable-imprisonment in the penitentiary. That to secure the payment of said $100 dollars to Adams, he executed a deed to him for a lot of forty acres of land in fee simple, and took from him a writing, obliging to reconvey the land upon the payment of the money, within a year, and took a discharge from said pretended grievances.
    The bill further states that a prosecution was afterward instituted against the complainant for perjury, upon said examination, from which he was duly discharged; and, that soon after, learning that said Adams was aboút to convey said land to his co-defendant Newkirk, he informed Newkirk of all the foregoing circumstances, warned him not to purchase, as he intended to take measures to recover the land back. Yet the said Newkirk took a. conveyance for said land, and now claims to hold the legal title. The bill prays to have said conveyances set aside, and to have the-land reconveyed to the complainant.
    Adams, in his answer, admits the prosecution against him for forgery, instituted by complainant, and prosecuted with great, rigor; that he employed counsel to defend him; that he designed to commence suits for malicious prosecution, and for slander; and. so told complainant. Admits the compromise of those suits, and the conveyance to him of the forty acres of land, and his sale and conveyance to Newkirk; he admits something was said about a. prosecution for perjury, but not until after the deed was executed to him; denies all knowlege of any influence used by his attorney to induce the complainant to settle, and alleges the proposition for a settlement came from the complainant, was accepted with reluctance, and that no agreement to compromise any criminal prosecution formed any part of the consideration of said deedNewkirk admits his purchase of Adams with full knowledge of the condition for redemption, but he avers his purchase was bonafide, without notice of the circumstances attending the conveyance to Adams, detailed in the bill. There is a general replication. *and proof of the execution of the deed to Adams under the circumstances set out in the bill; also, that Newkirk had full knowledge of all the material facts when he took the conveyance, and of the agreement to stifle a criminal prosecution for perjury..
    Rawson, Smith, and Chapin, for .complainants, contended:
    1. That the.deed to Adams was a mortgage only. ■
    2. That it was obtained under undue influence, and by threats, sufficient to induce equity to set it aside, as illegal and against public policy. They cited 1 Mad. Ch. 308; 1 Bridg. M. 445; Powell on Cond. 20; 2 Johns. Ch. 35; Amer. Ch. Dig. 204; 3 Cowen, 571, 572; 2 Kent’s Com. 466, 467; 4 Ib. 464; 8 Johns. 198; 1 Ch. Cont. 236.
    3. That Newkirk purchased while Moore was in possession-, and before the deed to Adams was absolute. 1 Johns. Dig. 315; 2 Bridg. Ind. 365.
    4. That Newkirk paid nothing, but by his own showing took the conveyance to satisfy a debt due him by Adams, and if the deed be set aside, his debt will remain as before. 3 Cowen, 577-579.
    5. That the deed to Adams was obtained by fraud, and from a party under duress, and the parties are not in pari delictu.
    
    No argument was submitted for the defendants.
   Judge Wood

delivered the opinion of the court:

The complainant seeks relief, because he was compelled by duress to make the dee.d to Adams. Is he right in this assumption? We incline to a different opinion. Lord Coke says, “that, for menaces, in four instances, a man may avoid his own act: 1. Eor fear of loss of life; 2. Of member; 3. Of mayhem; and 4. Of imprisonment. 2 Bac. Ab. 156, 157. The complainant was in no-fear of life, or member, or mayhem — the mere threat of consequential imprisonment does not constitute duress. There must-be actual and unlawful imprisonment to constitute duress, and the-deed given as a consideration for the discharge. “ It is not accounted duress of imprisonment, but when either the imprisonment or the duress that is offered, in prison, or at large, is tortious and unlawful; for executio juris, non habet injuriam. Ib.

2. The complainant seeks relief because the consideration of his deed was, in part, the agreement not to prosecute him for perjury. We think this ground, also, unavailable for him. The-agreement is unlawful, in which both parties are concerned, and *they stand in pari delictu. It is contra bonos mores, and ,good policy requires the court to leave the parties as it finds them, .and not corrupt itself by interfering between a corrupt vendee and an equally tainted vendee. 4 Ohio, 418; 7 Ohio, 77; 2 Kent’s Com. 366; 2 Stark. Ev. 87. These cases are all of executory contracts, it is true, but this court has determined that when a deed was delivered, upon an agreement analogous to the one set up in the bill, the contract was executed, and that the court would leave .the parties to the full enjoyment of the fruit of their iniquity without interference. It is said, however, that that was an action at law, and this a case in equity. We know of no distinction in the application of these rules in the one or the other court.

The bill is dismissed with costs.  