Smithwick v. . Whitley

67 S.E. 913, 152 N.C. 369, 1910 N.C. LEXIS 280

• Court: Supreme Court of North Carolina
• Decided: April 20, 1910
• Status: Published

Opinion

BeowN, J.

We agree with his Honor, that the cause of action, npon plaintiff’s own evidence, is barred by the statute of limitations, assuming that a cause of action had been made out. But no cause of action for duress is made out in the evidence or stated in the complaint.

Tbe payment of tbe $280 in order to get a deed for tbe' land was yoluntary. Tbe plaintiff bad a right to stand on bis legal rights in tbe land, if be bad any, and assert bis equities in tbe courts of tbe State.

Duress exists where one, by tbe unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of tbe exercise of free will. 14 Oyc., 1123, and cases cited. Bank v. Logan, 99 Ga., 291; Mathews v. Smith, 67 N. C., 374; Miller v. Miller, 68 Pa. St., 486.

Duress is commonly said to be of tbe person where it is manifested by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. Or it may be of tbe goods, when one is obliged to submit to- an illegal exaction in order to obtain possession of bis goods and chattels from one who has wrongfully taken them into possession. Astley v. Reynolds, 2 Strange, 915, is a leading flase on this, subject. Hackley v. Hackley, 45 Mich., 573.

There is neither duress of tbe person nor goods there. Tbe plaintiff was in actual possession of tbe land and tbe defendant denied bis title, claiming that tbe “deal bad not been consummated.” In order to get a deed, plaintiff acceded to defendant’s demand and paid tbe advanced price. Upon all tbe authorities it was a voluntary payment, an adjustment of tbe dispute.

No error.