Upon the facts being stated as above,
Babtoh, O. J.,
delivered the opinion of the court:
The appellant insists that the court erred in sustaining the motion for non-suit, and that it is against public policy, good morals and conscience to permit a transaction, which is the result of duress, to stand. It is urged that, even if the parties were in pari delicto, the appellant is comparatively the more innocent, and that in furtherance of justice and sound public policy she ought to be granted full affirmative relief. The respondent maintains that the appellant is not entitled to the interposition of a court of equity; that affirmative aid should be refused, and the parties to the illegal transaction, left by the court where it found them; that the same principle controls whether the illegality is merely malum prohibitum, being in contravention of statute, or malum in se, as being contrary to public policy or good morals; and that contracts only which are made under fear of unlawful imprisonment can be avoided "for duress. We are aware that some cases tend to support the contention of the respondent. Among them are Harmon v. Harmon, 61 Me. 227; Knapp v. Hyde, 60 Barb. 80; Bodine v. Morgan, 37 N. J. Eq. 426; Allison v. Hess, 27 Iowa 388; Landa v. Obert, 45 Tex. 539.
Such seems to be the trend of some of the earlier decisions, but the more recent adjudications, in cases like the one at bar, support the contention of the appellant. “It appears formerly to have been the rule that the imprisonment must have been unlawful, or, if lawful, undue force must have been used, or [130]*130the party made to endure unnecessary privation, to avoid which and to obtain his liberty he made the contract, while the mere fact of imprisonment was not deemed sufficient to avoid an agreement obtained through the medium thereof, if the party was in proper custody under the regular process of a court of competent jurisdiction. Again, the earlier cases made some fine and subtle distinctions in regard to the character of the threats which procured the execution of the contract; but as civilization has advanced the law has tended much more strongly than it formerly did to overthrow everything which is built on violence or fraud, and now, as a rule, all contracts procured by threats or imprisonment and the fear of injury to life, limb or property may be avoided on the ground of duress, whether on the part of the person to whom the promise or obligation is made, or on that of his agent. The reason of this is obvious; for in such case there is nothing but the form of a contract without the substance, and, wanting the voluntary assent of the parly to be bound by it, the law will refuse to uphold it.” 2 Warvelle on Vendors, 864.
It is no doubt true, as a general proposition that a court of equity, acting on the maxim, in pari delicto potior est conditio .defendentis et possidentis, will not interpose to aid parties who are concerned in unlawful transactions or agreements, but where public policy requires relief to be given, and when the parties though in delicto, are not in pari delido, as when, at the time of the transaction, the complainant was under undue influence, hardship or oppression or great inequality of condition or age existed, and acted involuntarily, the maxim does not apply. 1 Story’s Eq. Jur., secs. 288, 300.
The reason is that, in such cases, the public interests and 'justice require relief to be given, even though the complaint be by one who is particeps criminis. And in this class of cases a court of equity may grant relief, not only by cancelling an [131]*131instrument, or setting aside an agreement or otbér transaction, but also, in a proper case; by compelling money paid under- it to be refunded. All contracts and transactions, contra bonos mores, are unlawful and void in equity, and with a very few exceptions at common law. This is so as to agreements or transactions, executed or executory, entered into upon the consideration of the compounding of a felony, the forbearance to prosecute for a crime, abandonment of a pending criminal prosecution, or which directly or indirectly control or prevent the due administration of justice. When the object is to stifle a criminal prosecution, such an agreement or transaction is void, and although the parties are in pari delicto, equity may grant relief when the public good demands it. “Even where the contracting parties are in pari delicto the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him. In pursuance of this principle, and ■ in compliance with the demands of a high public policy, equity may aid a party equally guilty with his opponent, not only by cancelling and ordering the surrender of an executory agreement, but even by setting aside an executed contract, conveyance, or transfer, and decreeing the recovery back of money paid, or property delivered in performance of the agreement. The cases in' which this limitation may apply and the affirmative relief may thus be granted, include the class of contracts, which are intrinsically contrary to public policy- — contracts in which the illegality itself consists in their opposition to public policy, and any other species of illegal contracts, in which from their particular circumstances, incidents and-collateral motives of public policy require relief.” 2 Pom. Eq. Jur., 941, 936.
In the case at bar, from the evidence, which for the purpose of deciding the correctness of the judgment of nonsuit, we [132]*132must assume to be true, it appears that the complainant received no consideration for the property which she conveyed by deed to the defendant. Her husband admitted that he had committed the crime of larceny, and the defendant, or his agent, after the arrest of the husband, explained to her that it was a serious case, a '“penitentiary offense,” and then when implored by her to help her husband, for the sake of herself and children, and to save them from want and disgrace, the defendant left the matter to his agent. She was then asked whether she had any property or money, and, upon replying that she owned the real estate, in question herein, was told that if she woHd execute a deed to the defendant for that property they would 'make matters all right. Expressing her unwillingness to do this, she was given the choice to sign the deed or have her husband sent “to the penitentiary for from one and a half to five years.” Frightened, and believing that her husband could be imprisoned in the penitentiary, and that her execution of the deed would save herself and family from want and disgrace, she consented to and did execute and deliver the instrument of conveyance.
Without further reference in detail, a fair result of the evidence, if it is in fact true, shows that the deed was executed and delivered under the influence felt by the grantor and exercised by the grantee, and that the result of the discovery of the criminal act, for which the wife was not liable, and the fear of the criminal prosecution and imprisonment of her husband, were used by the defendant, or his agent, to induce her to execute and deliver the deed. The evidence thus shows an attempt to gain .an advantage or benefit from an influence improperly exerted, and indicates the use of the criminal process of a court for private and personal ends.
The important question of law here involved, therefore, is whether one who has discovered the commission of a crime
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Upon the facts being stated as above,
Babtoh, O. J.,
delivered the opinion of the court:
The appellant insists that the court erred in sustaining the motion for non-suit, and that it is against public policy, good morals and conscience to permit a transaction, which is the result of duress, to stand. It is urged that, even if the parties were in pari delicto, the appellant is comparatively the more innocent, and that in furtherance of justice and sound public policy she ought to be granted full affirmative relief. The respondent maintains that the appellant is not entitled to the interposition of a court of equity; that affirmative aid should be refused, and the parties to the illegal transaction, left by the court where it found them; that the same principle controls whether the illegality is merely malum prohibitum, being in contravention of statute, or malum in se, as being contrary to public policy or good morals; and that contracts only which are made under fear of unlawful imprisonment can be avoided "for duress. We are aware that some cases tend to support the contention of the respondent. Among them are Harmon v. Harmon, 61 Me. 227; Knapp v. Hyde, 60 Barb. 80; Bodine v. Morgan, 37 N. J. Eq. 426; Allison v. Hess, 27 Iowa 388; Landa v. Obert, 45 Tex. 539.
Such seems to be the trend of some of the earlier decisions, but the more recent adjudications, in cases like the one at bar, support the contention of the appellant. “It appears formerly to have been the rule that the imprisonment must have been unlawful, or, if lawful, undue force must have been used, or [130]*130the party made to endure unnecessary privation, to avoid which and to obtain his liberty he made the contract, while the mere fact of imprisonment was not deemed sufficient to avoid an agreement obtained through the medium thereof, if the party was in proper custody under the regular process of a court of competent jurisdiction. Again, the earlier cases made some fine and subtle distinctions in regard to the character of the threats which procured the execution of the contract; but as civilization has advanced the law has tended much more strongly than it formerly did to overthrow everything which is built on violence or fraud, and now, as a rule, all contracts procured by threats or imprisonment and the fear of injury to life, limb or property may be avoided on the ground of duress, whether on the part of the person to whom the promise or obligation is made, or on that of his agent. The reason of this is obvious; for in such case there is nothing but the form of a contract without the substance, and, wanting the voluntary assent of the parly to be bound by it, the law will refuse to uphold it.” 2 Warvelle on Vendors, 864.
It is no doubt true, as a general proposition that a court of equity, acting on the maxim, in pari delicto potior est conditio .defendentis et possidentis, will not interpose to aid parties who are concerned in unlawful transactions or agreements, but where public policy requires relief to be given, and when the parties though in delicto, are not in pari delido, as when, at the time of the transaction, the complainant was under undue influence, hardship or oppression or great inequality of condition or age existed, and acted involuntarily, the maxim does not apply. 1 Story’s Eq. Jur., secs. 288, 300.
The reason is that, in such cases, the public interests and 'justice require relief to be given, even though the complaint be by one who is particeps criminis. And in this class of cases a court of equity may grant relief, not only by cancelling an [131]*131instrument, or setting aside an agreement or otbér transaction, but also, in a proper case; by compelling money paid under- it to be refunded. All contracts and transactions, contra bonos mores, are unlawful and void in equity, and with a very few exceptions at common law. This is so as to agreements or transactions, executed or executory, entered into upon the consideration of the compounding of a felony, the forbearance to prosecute for a crime, abandonment of a pending criminal prosecution, or which directly or indirectly control or prevent the due administration of justice. When the object is to stifle a criminal prosecution, such an agreement or transaction is void, and although the parties are in pari delicto, equity may grant relief when the public good demands it. “Even where the contracting parties are in pari delicto the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him. In pursuance of this principle, and ■ in compliance with the demands of a high public policy, equity may aid a party equally guilty with his opponent, not only by cancelling and ordering the surrender of an executory agreement, but even by setting aside an executed contract, conveyance, or transfer, and decreeing the recovery back of money paid, or property delivered in performance of the agreement. The cases in' which this limitation may apply and the affirmative relief may thus be granted, include the class of contracts, which are intrinsically contrary to public policy- — contracts in which the illegality itself consists in their opposition to public policy, and any other species of illegal contracts, in which from their particular circumstances, incidents and-collateral motives of public policy require relief.” 2 Pom. Eq. Jur., 941, 936.
In the case at bar, from the evidence, which for the purpose of deciding the correctness of the judgment of nonsuit, we [132]*132must assume to be true, it appears that the complainant received no consideration for the property which she conveyed by deed to the defendant. Her husband admitted that he had committed the crime of larceny, and the defendant, or his agent, after the arrest of the husband, explained to her that it was a serious case, a '“penitentiary offense,” and then when implored by her to help her husband, for the sake of herself and children, and to save them from want and disgrace, the defendant left the matter to his agent. She was then asked whether she had any property or money, and, upon replying that she owned the real estate, in question herein, was told that if she woHd execute a deed to the defendant for that property they would 'make matters all right. Expressing her unwillingness to do this, she was given the choice to sign the deed or have her husband sent “to the penitentiary for from one and a half to five years.” Frightened, and believing that her husband could be imprisoned in the penitentiary, and that her execution of the deed would save herself and family from want and disgrace, she consented to and did execute and deliver the instrument of conveyance.
Without further reference in detail, a fair result of the evidence, if it is in fact true, shows that the deed was executed and delivered under the influence felt by the grantor and exercised by the grantee, and that the result of the discovery of the criminal act, for which the wife was not liable, and the fear of the criminal prosecution and imprisonment of her husband, were used by the defendant, or his agent, to induce her to execute and deliver the deed. The evidence thus shows an attempt to gain .an advantage or benefit from an influence improperly exerted, and indicates the use of the criminal process of a court for private and personal ends.
The important question of law here involved, therefore, is whether one who has discovered the commission of a crime [133]*133and lias caused the arrest of the perpetrator, and who, by threats of prosecution and imprisonment, has overcome the will of the wife of the perpetrator, and induced her to execute a deed which she would not have willingly executed and delivered, can hold the property so conveyed, if the wife afterwards attempts to avoid the deed and have it cancelled on the ground of duress. It has sometimes been held that threats of unlawful imprisonment only can constitute duress, and some of the definitions of duress per minas are perhaps not broad enough to include threats of lawful imprisonment, but at present the rule has a broader application. “It is founded on the principle that a contract rests on the free and voluntary action of the minds of the parties meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act-which is not his but another’s, imposed on him through fear which deprives him of self-control, there is no contract unless the other dpals with him in good faith, in ignorance of the improper influence, and in the belief that he is acting voluntarily.” Morse v. Woodworth, 155 Mass. 233.
The very existence of a contract requires that the minds of the parties meet, and that it be executed freely and voluntarily by all the contracting parties. If then, in a case like the one shown by the evidence herein, one of the parties acts under constraint, induced by the other, and signs the instrument without voluntary assent to it, the party, who exerted the improper influence, can take no advantage of the contract. The real question, in such case, is not whether the threats, relied upon as constituting duress, were of lawful or unlawful imprisonment, but whether they were of imprisonment which would be unlawful respecting the conduct of him who threatened and [134]*134sought to obtain, a contract by use of the threats. Such imprisonment, resulting from the execution of threats made for the purpose of securing a contract or a conveyance of property, may be lawful with respect to the public or public authorities, but unlawful with respect to him who thus, for his own private benefit, made use of the criminal process of the court provided for the prosecution of crime and the protection of the public. One who, under circumstances, as now disclosed in this case, makes use of the criminal process of the court for the purpose of overcoming the will of another to secure an advantage to himself, is not in a position to obtain and hold the fruits of a contract, whether executed or executory, so obtained, on the ground that both parties were in pari delicto, and that in equity the court will leave them where it finds them. Under the weight of recent authority, at least, such parties, under such circumstances, can not be looked upon as equally at fault, although they are both guilty of a wrong. The inequality of their situation, the one exacting a deed to property which the other is -compelled to execute and deliver against her will in order to save her husband from imprisonment in the penitentiary, and herself and children from disgrace and ruin, taints the transaction and renders voidable the instrument obtained under the influence of her fears. This is so because she was not acting as a free agent. The evidence does not show that the conveyance was the result of her own volition but of that of another, in reality not her contract but another’s, and, in such case there is no reason why she should be held bound by the instrument. If, as indicated by the evidence now before us, her main and inspiring purpose was the release of her husband from the consequences óf his crime and to preserve the standing of herself and family in society; if such was the consideration operating in her mind when she signed the deed, a court will not be justified in upholding the transaction.
[135]*135In Williams v. Bayley, L. R. 1 Eng. and Irish App. Cas., H. L. 200, a son carried to bankers of whom be and bis father were both customers, certain promissory notes with bis father’s name upon them as indorser. The indorsements were forgeries. The forgery was afterwards discovered; the son 1 did not deny it; the bankers insisted, though without any direct threat of prosecution or imprisonment, on a settlement; to which the father was to be a party. At a meeting at which all the parties, including the father, were present, the banker’s solicitor said it was “a serious matter,” and the father’s solicitor added, “a case of transportation for life;” finally the father executed an agreement to make an equitable mortgage of his property. The notes, with the forged indorsements, were then delivered up to him. Lord Westbury, holding the. agreement invalid, in the course of his opinion, said: “It is perfectly clear that they did not pretend that the father was liable. What remained then as a motive for the -father ? The only motive to induce him to adopt the debt, was the hope that by so doing he would relieve his son from the inevitable consequences of his crime. The question, therefore, my Lords, is, whether a father appealed to under such circumstances, to take upon himself an amount of civil liability, with the knowledge that, unless he does so, his son will be exposed to a criminal prosecution, with the certainty of conviction, can be regarded as a free and voluntary agent ? I have no hesitation in saying that no man is safe, or ought to be safe, who takes a security for the debt of a felon, from the father of the felon, under such circumstances. A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract that should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether [136]*136taken away from a father who is brought into the situation of either refusing, and leaving his son in that perilous condition, or of taking on himself the amount of that civil obligation.”
Benedict v. Roone, 106 Mich. 378, is a case, in many respects, quite similar to the one at bar. There the husband of the complainant embezzled funds of his employers. The husband’s conduct was disclosed to the wife by the employers’ attorney who advised her that it constituted a criminal offense; and on the same day she was informed by one of the employers that he must have security or the money, or “there are the papers,” and “I shall go on with the proceedings.” Thereupon the wife executed a mortgage to the employers upon her individual property for the amount of her husband*s defalcation. In affirming a decree setting aside the mortgage as having been procured by duress and undue influence, Mr. Justice GeaNT, delivering the opinion of the court, said: “If the court were to be governed alone by the words used to her by them, the position of the defendants might be sustained; but we can not ignore the conclusion that the conduct of her husband was suddenly disclosed to her, that she understood that he had committed a crime, and that the papers referred to by Mr. Weir as lying upon the table were' prepared as the basis of a criminal prosecution. We think it clear that she gave the mortgage under an implied threat of criminal prosecution. If they so meant it, and she so understood it, and for that reason gave the mortgage,, it was obtained by duress and undue influence, just as certainly as though an express threat had been made.”
So in Giddings v. Iowa Savings Bank, 104 Ia. 676, it was said: “Where the fears or affections of a wife are worked upon through threats made against her husband, and she is induced thereby against her will, to convey her property to [137]*137secure bis debt, there is duress as to ber, even tbougb tbe debt was valid, and tbe threat of lawful prosecution lor a crime that bad in fact been committed by tbe husband.”
In Adams v. Irving National Bank, 116 N. Y. 606, it was said: “The rule is firmly established that in relation to husband and wife or parent and child each may avoid a contract induced and obtained by threats of imprisonment of the other, and it is of no consequence whether the threat is of a lawful or unlawful imprisonment.” 6 Am. and Eng. Ency. of Law, 416, 417; 10 Am. and Eng. Ency. of Law, 324-327; 2 Pom. Eq. Jur. par. 942; 1 Story’s Eq. Jur. secs. 239, 300; Hensinger v. Dyer, 147 Mo. 219; Town of Sharon v. Gager, 46 Conn. 189; Meech v. Lee, 82 Mich. 274; Heaton v. Bank, 59 Kas. 281; Foley v. Greene, 14 R. I. 618; Bently v. Robinson, 117 Mich. 691; Hargraves v. Korcek, 44 Neb. 660; Davis v. London & Provincial Marine Ins. Co., L. R. 8 Ch. Div. 469; Morrill v. Nightingale, 93 Cal. 452; Thompson v. Niggley, 53 Kas. 664; Osborne v. Williams, 18 Ves. Jr. 379 ; Gohegan v. Leach & Co., 24 Ia. 509; Biendorff v. Kaufman, 41 Neb. 824; Harris v. Carmodv, 131 Mass. 51; McMahon v. Smith, 47 Conn. 221; Tapley v. Tapley, 10 Minn. 360; McCormick Harvesting Machine Co., 73 Wis. 486; Eadie v. Slimmon, 26 N. Y. 9; Lomerson v. Johnston, 44 N. J. Eq. 93; Holman v. Johnson, 1 Cowp. 341; Haynes v. Rudd, 30 Hun. 237; Claridge v. Hooane, 14 Ves. Jr. 59.
We are of the opinion that the plaintiff’s testimony is •of such a character as to require the defendant to put in his defense, and that the court erred in granting the motion for and entering the judgment of'non-suit.
The case must be reversed, with costs, and the cause remanded with instructions to the court below to set aside the judgment of non-suit.and proceed in accordance herewith. It is so ordered.
Baslcin, J., concurs.
[138]*138It is not absolutely clear from, the testimony that plaintiff participated in the crime of stealing from the store of the defendant, although it is apparent that she endeavored to conceal the crime after its discovery. It also appears that when the officers were seeking for the stolen property at her house she told her husband “Now Joe be sure and not give up that stuff you bought at Salt Lake.” The officers found 19 bags of stolen harness material in a room in plaintiff’s house which was kept locked. Only these goods so found were returned to the defendant, although the husband had been pilfering-from the store for eight months, and the estimated loss claimed was $800.
The plaintiff gave testimony tending to show that she executed the deed under duress, and by means of threats to prosecute her husband and send him to the penitentiary if she did not execute it. Under these circumstances I concur in the judgment of reversal, and in granting a new trial.
Miner¿ J.