Sherwood, J.
—Upon the facts thus presented, a conclusion is to be reached and announced whether plaintiff: is entitled to any relief.
That plaintiff owed the city nothing and the beneficiaries in the deed of trust nothing, stands conceded. That Carter’s bondsman owed the city $7,700 is equally undisputed. And yet this was the sole basis and the groundwork upon which plaintiff was so persistently and constantly importuned for days and days to sur-' render her little all; to beggar herself in order that the bondsmen might be saved harmless and she made poor indeed. On the very morning that this most indefensible transaction found its blameworthy consummation, this poor, ignorant, illiterate old woman, fast verging on the biblical limit of three score years and ten, for over three hours was kept on the rack of varying emotions. Within that time every argument that could be advanced, -was used, every chord of human feeling and affection that could be played upon was struck by the sordid hand of self interest or the tremulous hand of anticipated punishment in the endeavor to swerve her from her purpose; how well it succeeded is matter now of record.
The circumstances of this case clearly bring it within the operation of the principle that condemns and avoids a contract entered into where the obligor is not a free agent; where he stands in vinculis; where he is not equal to the task of protecting himself; where the circumstances which surround him at the time are of such extreme necessity or of distress that his will is overcome, his free agency destroyed by some oppression or fraudulent advantage or imposition incident to the transaction; in such case a court of equity will [15]*15protect him, by setting aside the contract thus made. 1 Story’s Equity Jurisprudence [13 Ed.], sec. 239.
In instances like the present,--'where surprise and sudden action are the chief ingredients, where due deliberation is, therefore, wanting, these incidents are classed by courts of equity under the head of fraud or imposition. Wherever undue advantage is taken of party “under circumstances which mislead, confuse or disturb the just result of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning,” where “proper time is not allowed to the party and he acts improvidently, if he is importunately pressed, if those in whom he places confidence make use of strong persuasions, if he is not fully aware of the consequences, but is suddenly drawn in to act, if he is not permitted to consult disinterested friends or counsel before he is called upon to act in circumstances of sudden emergency or unexpected right or acquisition, — in these and many like cases, if there has been great inequality in the bargain, courts of equity will assist the party upon the ground of fraud, imposition, or unconscionable advantage.” Ib., sec. 251, and cases cited.
Other eases announce the same principle aud its application to like circumstances as are here presented. Turley v. Edwards, 18 Mo. App. 676; Sharon v. Gager, 46 Conn. 189; Foley, v. Greene, 14 R. I. 618; Jordan v. Elliott (Penn.) 15 Cent. L. J. 232; Meech v. Lee 46 N. W. Rep. (Mich.), 383; Eadie v. Slimmon, 26 N. Y. 9; Coffman v. Bank, 5 Lea, 232; Berlien v. Bieler, 96 Mo. 491.
The true question as announced by Lord Eldon in Peel v. -, 16 Ves. 157, in- all such cases is, “whether the mind was not t so subdued, that though the execution was the free act of that person, it was an [16]*16act, speaking the mind, not of that person, but of another.”
In Earle v. Norfolk, etc., Co., 36 N. J. Eq. 192, Van Fleet, V. C., aptly epitomizes this whole doctrine when he says: “Whatever destroys free agency and constrains the person whose act is brought in judgment to do what is against his will, and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion.”
The testimony in this case shows in the most indubitable manner that the act of plaintiff in touching the pen and in acknowledging the deed and the notes, was purely automatic and perfunctory. It is urged that if the deed of trust and notes executed by plaintiff had been given through fear of Carter’s criminal prosecution and in order to prevent the same, that then she stands in pari delicto with the other parties to the transaction, and, therefore, could have no relief against the enforcement of those writings obligatory.
There are two answers to this contention: First. Granting that plaintiff did enter into the contrract with that purpose in view, she will not be debarred from pursuing her remedy, because she can not in any event be regarded as equally culpable with the adversary parties. When this is the case, a court of equity will interfere and go to the relief of the less guilty party, whose transgression has been brought about by the imposition, undue influence, etc., of the party on whom the burden of the original blameworthiness principally rests. 2 Pomeroy’s Equity Jurisprudence [2 Ed.], sec. 942; 1 Story’s Eq. Jur. [13 Ed.], sec. 300; Pinckston v. Brown, 3 Jones’ Eq. (N. C.) 494; Kitchen v. Greenabaum, 61 Mo. loc. cit. 115. Second. For reasons already given, plaintiff can not be regarded [17]*17as having entered into a binding contract that can prejudice her rights.
It is insisted that plaintiff should have moved more promptly for cancellation of the alleged contract; but we fail to appreciate the force of this position, because the notes had three years to run, evidently made so for a purpose. The statute of limitations would bar any prosecution of Carter at the end of that period. During that time the same prospect of family disgrace was held over plaintiff that was used originally to procure, and was such a potent factor in procuring, the execution of the securities, and if plaintiff had instituted her proceedings for relief at an earlier date, she would have been confronted by the same situation, the same circumstances of moral duress and imposition which confronted her in the first instance. In such circumstances, her failure to move sooner in the matter is not to be accounted acquiescence on her part. On this topic Sib Wm. Ob ant, M. R., said: “There is, I believe, no case in which, during the continuance of the same situation in which the party entered into the contract, acquiescence has ever gone for anything: it has always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside; that it is only when he is relieved from that distress, that he can be-expected to resist the performance of the contract.” Gowland v. De Faria, 17 Ves. 20.
In Buck v. Bank, 27 Mich. 293, the note had been given for money of which the defendant claimed her son had robbed the bank, and that such note had been executed upon an understanding that the bank would use its influence to mitigate any punishment the son had incurred a liability in receiving, and in a suit on that note the plaintiff bank was allowed to show that [18]*18when interest on the notes was arranged before the principal became due, defendant did not object to the payment of the notes. But the court said: “We think no such presumption could safely be drawn from this evidence.
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Sherwood, J.
—Upon the facts thus presented, a conclusion is to be reached and announced whether plaintiff: is entitled to any relief.
That plaintiff owed the city nothing and the beneficiaries in the deed of trust nothing, stands conceded. That Carter’s bondsman owed the city $7,700 is equally undisputed. And yet this was the sole basis and the groundwork upon which plaintiff was so persistently and constantly importuned for days and days to sur-' render her little all; to beggar herself in order that the bondsmen might be saved harmless and she made poor indeed. On the very morning that this most indefensible transaction found its blameworthy consummation, this poor, ignorant, illiterate old woman, fast verging on the biblical limit of three score years and ten, for over three hours was kept on the rack of varying emotions. Within that time every argument that could be advanced, -was used, every chord of human feeling and affection that could be played upon was struck by the sordid hand of self interest or the tremulous hand of anticipated punishment in the endeavor to swerve her from her purpose; how well it succeeded is matter now of record.
The circumstances of this case clearly bring it within the operation of the principle that condemns and avoids a contract entered into where the obligor is not a free agent; where he stands in vinculis; where he is not equal to the task of protecting himself; where the circumstances which surround him at the time are of such extreme necessity or of distress that his will is overcome, his free agency destroyed by some oppression or fraudulent advantage or imposition incident to the transaction; in such case a court of equity will [15]*15protect him, by setting aside the contract thus made. 1 Story’s Equity Jurisprudence [13 Ed.], sec. 239.
In instances like the present,--'where surprise and sudden action are the chief ingredients, where due deliberation is, therefore, wanting, these incidents are classed by courts of equity under the head of fraud or imposition. Wherever undue advantage is taken of party “under circumstances which mislead, confuse or disturb the just result of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning,” where “proper time is not allowed to the party and he acts improvidently, if he is importunately pressed, if those in whom he places confidence make use of strong persuasions, if he is not fully aware of the consequences, but is suddenly drawn in to act, if he is not permitted to consult disinterested friends or counsel before he is called upon to act in circumstances of sudden emergency or unexpected right or acquisition, — in these and many like cases, if there has been great inequality in the bargain, courts of equity will assist the party upon the ground of fraud, imposition, or unconscionable advantage.” Ib., sec. 251, and cases cited.
Other eases announce the same principle aud its application to like circumstances as are here presented. Turley v. Edwards, 18 Mo. App. 676; Sharon v. Gager, 46 Conn. 189; Foley, v. Greene, 14 R. I. 618; Jordan v. Elliott (Penn.) 15 Cent. L. J. 232; Meech v. Lee 46 N. W. Rep. (Mich.), 383; Eadie v. Slimmon, 26 N. Y. 9; Coffman v. Bank, 5 Lea, 232; Berlien v. Bieler, 96 Mo. 491.
The true question as announced by Lord Eldon in Peel v. -, 16 Ves. 157, in- all such cases is, “whether the mind was not t so subdued, that though the execution was the free act of that person, it was an [16]*16act, speaking the mind, not of that person, but of another.”
In Earle v. Norfolk, etc., Co., 36 N. J. Eq. 192, Van Fleet, V. C., aptly epitomizes this whole doctrine when he says: “Whatever destroys free agency and constrains the person whose act is brought in judgment to do what is against his will, and what he would not have done if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion.”
The testimony in this case shows in the most indubitable manner that the act of plaintiff in touching the pen and in acknowledging the deed and the notes, was purely automatic and perfunctory. It is urged that if the deed of trust and notes executed by plaintiff had been given through fear of Carter’s criminal prosecution and in order to prevent the same, that then she stands in pari delicto with the other parties to the transaction, and, therefore, could have no relief against the enforcement of those writings obligatory.
There are two answers to this contention: First. Granting that plaintiff did enter into the contrract with that purpose in view, she will not be debarred from pursuing her remedy, because she can not in any event be regarded as equally culpable with the adversary parties. When this is the case, a court of equity will interfere and go to the relief of the less guilty party, whose transgression has been brought about by the imposition, undue influence, etc., of the party on whom the burden of the original blameworthiness principally rests. 2 Pomeroy’s Equity Jurisprudence [2 Ed.], sec. 942; 1 Story’s Eq. Jur. [13 Ed.], sec. 300; Pinckston v. Brown, 3 Jones’ Eq. (N. C.) 494; Kitchen v. Greenabaum, 61 Mo. loc. cit. 115. Second. For reasons already given, plaintiff can not be regarded [17]*17as having entered into a binding contract that can prejudice her rights.
It is insisted that plaintiff should have moved more promptly for cancellation of the alleged contract; but we fail to appreciate the force of this position, because the notes had three years to run, evidently made so for a purpose. The statute of limitations would bar any prosecution of Carter at the end of that period. During that time the same prospect of family disgrace was held over plaintiff that was used originally to procure, and was such a potent factor in procuring, the execution of the securities, and if plaintiff had instituted her proceedings for relief at an earlier date, she would have been confronted by the same situation, the same circumstances of moral duress and imposition which confronted her in the first instance. In such circumstances, her failure to move sooner in the matter is not to be accounted acquiescence on her part. On this topic Sib Wm. Ob ant, M. R., said: “There is, I believe, no case in which, during the continuance of the same situation in which the party entered into the contract, acquiescence has ever gone for anything: it has always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside; that it is only when he is relieved from that distress, that he can be-expected to resist the performance of the contract.” Gowland v. De Faria, 17 Ves. 20.
In Buck v. Bank, 27 Mich. 293, the note had been given for money of which the defendant claimed her son had robbed the bank, and that such note had been executed upon an understanding that the bank would use its influence to mitigate any punishment the son had incurred a liability in receiving, and in a suit on that note the plaintiff bank was allowed to show that [18]*18when interest on the notes was arranged before the principal became due, defendant did not object to the payment of the notes. But the court said: “We think no such presumption could safely be drawn from this evidence. „ The notes were negotiable, and if the bank officers should be apprised of an intended defense before they fell due, it would be reasonable to expect they would endeavor to protect themselves by negotiating them. The makers of the notes were consequently interested in keeping silent regarding their defense, and it is as legitimate to refer their action to prudence as to any other motive. The evidence, we think, should not have been received. And for the same reason no inference against ■ the bona fides of the defense could safely be drawn from the mere fact of the payment of interest by the makers of the notes, before the maturity of the principal. To disclose their defense at that time would have been to defeat it, so far, at least, as concerned the principal.”
On this point of acquiescence, or seeming acquiescence, Judge Story says: “But if the party is still acting under the pressure of the original transaction or the original necessity, or if he is still under the influence of the original'transaction, and of the delusive opinion that it is valid and binding upon him; then, and under such circumstances, courts of equity will will hold him not barred from relief from any such confirmation.” 1 Story’s Eq. Jur., sec. 345.
As a further proof of plaintiff’s acquiescence in the alleged contract, the notes are offered in evidence showing indorsements of interest paid thereon. While these indorsements are prima facie evidence of payment by the maker, such presumption is rebutted by testimony of plaintiff that she had never had the money to make even one of the payments. Conduct evincing the same sort of cunning is exhibited in the note to the [19]*19Saxon Bank, being surreptitiously signed by Carter as co-maker with plaintiff, though no one could tell how or when it was signed by him.
Defendants claim that plaintiff could not exercise the right of rescission without tendering back all she received from Carter, to wit, the warranty deed and note for $7,700. Plaintiff never asked for this deed or note; they were simply part and parcel of an adroit scheme to make an apparent show of a consideration for plaintiff’s execution of the deed of trust and the three notes, and were dexterously foisted on plaintiff for that purpose. The evidence shows very clearly that the warranty deed and the note of Carter’s for $7,700 were executed after plaintiff had executed the three notes and deed of trust, and that she made no use of them and never recorded the deed, and in fact did not even know its nature; thought it was a “mortgage.” But it does not lie in defendants’ mouths to set up this claim about Carter’s property, and still at the same time deny, as they do, that they are chargeable with anything Carter did in the transaction. Such inconsistent positions will not be .tolerated in a court of justice. Brown v. Bowen, 90 Mo. loc. cit. 190; McClanahan v. West, 100 Mo. loc. cit. 322, and cases cited.
Nor does it concern defendants in regard to the' land of Carter described in the warranty deed; it is not involved in this litigation. A similar ruling was made in Meech v. Lee, supra.
Again, the same considerations which would go to overthrow the original contract, would necessarily destroy the one alleged to be auxiliary thereto. Plaintiff could not procure the cancellation of the first, and still retain the benefits of the second, nor would the trial court allow her to do so, in the event a decree went for her. [
[20]*20Moreover, plaintiff in her petition recognised this, in which she tendered to Carter a quitclaim deed for the property that he had conveyed to her, and under this tender the circuit court could have compelled a conveyance and made it the price of the decree it gave her. Whelan v. Reilly, 61 Mo. 565, and cases-cited; Dwen, Ex’r, v. Blake, Ex’r, 44 Ill. loc. cit. 141, and cases cited.
Finally, defendants assert that we ought to defer somewhat to the conclusions reached by the lower court; but, while we do this, we do not neglect to review its rulings and the evidence offered in their support; to do otherwise would be to abdicate our jurisdiction in chancery causes. Benne v. Schnecko, 100 Mo. loc. cit. 258; McElroy v. Maxwell, 101 Mo. loc. cit. 308 et seq.; Berlien v. Bieler, 96 Mo. 491.
The premises considered, we reverse the decree of the lower court dismissing plaintiff’s petition, and remand the cause with directions to take an account of the rents and profits of the farm as is usual in case of a mortgagee in possession, and having adjusted this matter, then to enter a decree cancelling the deed of trust and notes secured thereby, and to take such other-steps as may be necessary and not inconsistent with this opinion, in which shall be included the bringing in as a party defendant of the purchaser of Mrs. Bell’s farm, and the ascertainment and reconveyance by quitclaim deed of whatever land or other securities Mrs. Bell may have received from Carter.
All of this, division concur.