Miller v. Davis

52 Colo. 485

• Court: Supreme Court of Colorado
• Decided: January 15, 1912
• Docket: No. 6886
• Status: Published

Opinion

Mr.'Justice GabbERT

delivered the opinion of the court.

Oral testimony to establish a degree of coercion which will avoid the written engagement of parties for duress must be at least reasonably convincing, that the party seeking to avoid a written contract on this ground was compelled to enter into it by such illegal acts on tne part of the other as compelled him to do what he would not have done voluntarily. If there is any testimony whatever tending to show duress, it is wholly insufficient to overcome the presumption that the solemn written engagements which claimant entered into were voluntary her part, or establish that her acquiescence in the Swanquist contract was not her voluntary act. In fact, it might well be said that the evidence conclusively establishes the contrary. Independent of the evidence on the subject of duress, claimant is estopped from raising that question. The transactions of which she complains had their inception in the Swanquist contract. For nearly two years after its’execution, she did not object to it, or take any steps to have it annulled. She took an assignment of this contract, and. in .accordance with its terms, accepted a conveyance of a three-quarters interest in the property involved, and executed a deed of trust to secure .Dayis •for the money, he. had advanced,.as provided in the contract. The alleged threat of Davis that, if .she did not comply with the contract,.he would, sell the property.to whom he pleased, did not constitute duress. .It is neither coercion .nor duress to threaten to do what, one has a legal right to do.—Dispeau v. First National Bank, 53 Atl., 868. She accepted an option to purchase the interest of Davis in the properties for a specified sum. Actiiig on the rights acquired by this conveyance to. her and the option she obtained, she negotiated a sale of the placers by which she disposed of the title she held, and that which she obtained by taking up the option. When the entire transaction was finally closed, she failed to take any steps to assert her alleged rights against Davis during his lifetime,-but waited until after his death, which did not occur for nearly a year, and’ then commenced this proceeding against 'his estate. A contract made under duress is voidable at the instance of the one'upon whom duress is practiced, not void; and is valid as to such party until disaffirmed, not void until affirmed. A contract obtained under duress is ratified by accepting the benefits growing out of it, or by silence or acquiescence for any considerable length of time after opportunity is afforded to avoid or have it annulled.—Dispeau v. First National Bank, supra; Wheeler v. McNeil, 101 Fed. 685; Horn v. Beatty, 37 Southern, 833; Eberstein v. Willets, 24 N. F. 967.

The judgment of the district court is affirmed.

Judgment affirmed.

Mr. Justice MussER and Mr. Justice Hiee concur.