Wheelock v. Commercial National Bank

8 Ohio N.P. 627

• Court: Cuyahoga County Common Pleas Court
• Decided: April 15, 1888
• Status: Published

Opinion

Noble, J.

The object of this suit is to set aside a deed obtained, as is alleged, by duress, that duress being a criminal prosecution against the plaintiff’s husband, her father in law and brother in law, in the first place instituted or' thereafter made use of by the bank to obtain the deed. As to the principles of law governing such cases, our supreme court has held: that where a contract based upon an illegal transaction has been executed the court will not rescind it or give relief against its terms,, and that where it is executory it will not enforce it.

. It is further well settled that a contract based upon the suppression of criminal proceedings is illegal, and that parties to it entering into it for that purpose are in pari delicto, and. neither can have relief against the other.

For -the purposes of this motion as the court, looks at the testimony, it may also be conceded,as claimed by the plaintiff, that where the condition or the position of the two contracting, parties is glaringly unequal, and the mind of one is overborne by the other, they are not on an equality of guilt, and the rule of pari delicto will not apply, and the weak will be. protected against the strong and the wrong done made right.

It is also settled that the effect of unlawful duress is to vitiate all contracts it enters into unless in some way the effect is afterwards waived. As to imprisonment being duress, it has expressly been held by our supreme court that to constitute such duress as will avoid a, contract, it must be unlawful, that the party-was innocent of the crime charged.

The testimony on the part of the plaintiff shows an admitted forgery by plaintiff’s husband, and father and brother, whereby the bank was the loser to the amount of about ten thousand dollars; an indictment against all three was found by the grand jury of this county; the information which led to it being first communicated to the prosecuting attorney by one of the officers of the bank; an interview solicited by Judge Ingersoll between the president of the bank and himself, he representing at first E. D. Wheelock, and subsequently the plaintiff’s husband and B. J. Wheelock as well, ir. which the president of the bank expressly says to him in the outset that they cannot make any agreement whereby the criminal proceedings will be suppressed, and wherein Judge Ingersoll expressly says that his talk in no way relates to that; that he had told his clients it w.as an honest debt and should be paid; that he had been employed to look after their interests in a criminal prosecution, and that the first thing to do was to pay up the bank; that he had a great many interviews with the bank officers in regard to it, and that as a final result the debt, amounting to $15,0000, about $10,000 of which was forged paper, was paid in part and the balance secured, a part of the payment being the deed in controversy, and that after this was accomplished, the evidences of debt, including the forged paper, were delivered to him, and that at his request a note was written by the cashier to the prosecuting attorney saying that they would prefer that the criminal proceedings be stopped. In the meantime, soon after the arrest, which was October 13, 1883, the plaintiff called upon Mr. Eells, the president of the bank, at his house, and she states that she asked him if the debt was paid whether the criminal prosecutions would proceed, to which he replied “no.” That she then asked him if it was not paid whether they would proceed, to which he replied, “yes.” She testifies that this was repeated; she testifies further that she subsequently made the deed solely to save her husband from his possible imprisonment under the criminal prosecution and for no other reason.

Miss Winters testifies to seeing the plaintiff subsequently, and that she was very much agitated, and that she did not think her capable of transacting business, identifying particularly one night when she said Mrs. Wheelock told her her husband had gone to see her father in regard to doing something to relieve him from the crjminal prosecution; that her agitation was great and that some other woman would not have been affected so much and that she feared the result of the prosecution.

B. J. Wheelock testifies to certain talks with Mr. Eells, looking to a dismissal of the criminal prosecutions, and that these talks were .all with that end in view.

T. D. Wheelock testified that on one occasion Mr. Eells said “you are not going to stand trial are you ?” The evidence all goes to show, in the opinion of the court, that the only purpose on the part of Mrs. Wheelock and of her husband and father in law and brother in law, in all that was done by each and all of them was to stifle their criminal prosecution, and it is fairly inferable from the testimony that the bank was willing to stifle it, provided it got its money. The advances are all made by the Wheelocks or their attorney; the propositions are all made by them. Now, was that %,■ lawful purpose or not ? Certainly not. The end sought was accomplished. Was it by their procurement as well as by that of the bank? It seems to the court that there can be but one answer, that it was. Whether it was accomplished by the aid and concurrence of the bank or not, can make no difference.

How can the effect of Mrs. Wheelock’s plaitt statement that the only purpose of making the deed was to save her husband from the possible imprisonment under the criminal proceedings— how can that, I say, be overcome? The effect of that statement must be, under the law, to give her no relief, but to leave her where she has placed herself, unless at the time when she made the deed her understanding and mind was so unbalanced and overreached by acts directly attributable to the bank, and done by the bank with the express purpose of overreaching and overdrawing and terrorizing her, and thus take the actions out of the operation o£ the rule pari delicto. If such were the facts they might, perhaps, under some of the decisions, amount to duress and would avoid her act. It cannot be claimed that there is any testimony tending to show that the purpose of the bank in instituting these proceedings was for the purpose of extorting the settlement. It is claimed, however, that after they were instituted the bank used them for that purpose. If immediately upon her interview with Mr. üells, or within a short time thereafter, and' with his declarations that if the debt was not paid the prosecution would go on, she had executed and delivered this deed, the court would strongly incline to believe that such a declaration on his part had the effect claimed for it to a great extent; but the testimony shows that this interview was shortly after the arrest, which was October 13, when she had' no property to convey The deed to her from her father was November 15, about a month probably after; and although there is no testimony as to the date of the deed from her to-the bank, there is testimony showing that Judge Ingersoll delivered this deed to the bank about the middle of December, fully a month after she received title to the property and about two months after the interview with Mr. Eells, Now what was being done in the, meantime? She says she consulted with n»one about making this deed. It is contrary -.1,0 all human experience that a wife, under the -circumstances named, should have no knowledge of or consultation in regard to the progress of events from the time of the interview with Mr. Eells in October up to the mid- • dle of December. B. J. Wheelock knew about the contemplated conveyance and talked with Mr. Eells about it. E. D. Wheelock knew 'about it and talked with, Mr. Eells, and Judge Ingersoll knew about it and canvassed the making of it and the value of the property conveyed . "by it frequently with the bank officers; ap-\ ' .praisers were appointed to view it and viewed j it, and it is idle to say that the subject of the transfer was not talked about by the family fully together, and that they consulted freely a*id fully together, she with the rest, and although there is no evidence of the proper rxe:.cution of the deed by her, an inference is fairly to be drawn that it was properly executed and acknowledged before the proper officers, from the fact of its delivery by Judge Ingersoll -and its acceptance by the bank. True, she may • not have consulted counsel, strictly so speaking, but shie was iri daily intercourse with those for whom she mace the deed, who were consulting counsel, and she must have understood the full ■ effect and import of her act; her husband had employed as good counsel as could be had in the city, her father was a man of age and ex-perience, her connections, as given by her to Mr. Eells, were among the best; the court can•not believe that she acted unadvisedly and without proper counsel. If she had acted hastily, without time or opportunity for deliberation, in the absence of advice, and without time or opportunity to obtain it, the court would be inclined to take a different view of it. I have •no doubt but this wife was sorely affected by the arrest and indictment of her husband, and that fear and apprehension for his safety filled her heart. But can the court say that this was caused by the act of the bank, or by the fact of his guilt and possibly imprisonment, such as would naturally follow with any wife who loved her husband? Too much time elapsed between the Interview, claimed to have accoíñplished this duress, and the delivery of this deed to warrant the court in giving it the effect claimed. In all the cases cited by learned counsel we find no such interval of time elapsing between the duress and the execution of the contract. Then, too, there are certain ■ inferences which a court cannot help drawing from the fact of the two years delay in beginning this suit.

Jas. H. Hoyt, A. St. J. Newberry, and A. C. Dustin for Plaintiff in Error. Prentiss and Vorce, for Defendant in Error. Note. Prentiss and Vorce, James H. Hoyt, A. St. J. Newberry, and A. C. Dustin, for Plaintiff in Error

cited: Roll v. Raguet, 4 Ohio ,400, 420; Goudy v. Gebhart, 1 Ohio St., 262; Hooker v. DePalos 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195; 8 Am. and Eng. Ency. Law, 649; 5 Am. and Eng. Ency. Law, 430; 3 Am. Eng. Ency. Law, p. 933 ; Terrill v. Achawer, 14 Ohio St., 80, 85; Allis v. Billings, 6 Metcalf, 417; Anderson v. Roberts, 18 J. R., p. 529; Story on Contracts, sec. 405; Devlin on Deeds, par. 81; Knapp v. Thomas, 39 Ohio St., 377, 388; Reece v. Allen, S Gilman, (Ill.), 241; Frauchet v. Leach, 5 Cowen, 508; Williams v. Mears, 2 Disn., 608; Bigelow on Fraud, vol. 1 (Ed. of 1888), p. 73; George v. Tate, 102 U. S., 564, 570; Hartshorn, v. Day, 60 U. S. (19 Howard), 223; Strong v. Strong, 102 N. Y., 69; Bowen v. Mandeville, 95 N. Y., 237; Moller v. Tuskey, 87 N. Y., 166; Benj. on Sales, secs. 648, et al.; Doane v. Lockwood, 115 Ill, 490; Brewer v. Goodyear et al. 88 Ind., 572; Talcott v. Henderson, 31 Ohio St., 162; secs. 4198 and 4106, Rev. Stat.,; Lindsley v. Coats, 1 Ohio 243, 245; Baldwin v. Bank, 1 Ohio St., 142, 148; Spangler v. Dukes, 39 Ohio St., 642; Starr v. Starr, 1 Ohio, 321, 327; Bigelow on Fraud, pp. 76-77; Starr v. Starr, 1 Ohio, 321, 327; Spangler v. Dukes, 39 Ohio St., 642; Truman v. Lore, 14 Ohio St., 144; Knapp v. Thomas, 39 Ohio St., 377, 388; Walker v. Kynett 32 Iowa, 524; Feret v. Hill, 15 C. B., 207; Hartshorn v. Day, 60 U. S. (19 How.), 223; Williams v. Mears 2 Disn., 604; 8 Am. and Eng. Ency. Law, p. 651; In re Dixson, v. Caldwell, 15 Ohio St., 412, 415; Pomeroy’s Remedies and Remedial Rights, sec. 68; : Hager v. Reed, 11 Ohio St., 626, 635; Klone v. Bradstreet, 7 Ohio St., 323-326; Rankin v. Hannan 37 Ohio St., 113, 118; 6 Am. Eng. Ency. Law, p. 245; Wallace v. Seymour & Rennick, 7 Ohio, 158; Truman v. Lore, 14 Ohio St., 144; Walker v. Kynett, 32 Iowa, 526; Spencer v. Marckel, 2 Ohio, 263, 264; Smith’s Lessee v. Hunt, 13 Ohio, 260, 268; 2 Yaple Code Practice and Precedents, p. 1; Rowe v. Beckett 30 Ind., 154; Groves v. Marks, 32 Ind., 319 ; Peck, Tr., etc., v. Newton, 46 Barbour, 173; Lombard v. Cowham, 34 Wis., 486; Clark v. Lockwood, 21 Cal., 222; Emeric v. Penniman, 26 Cal., 119; Kahn v. Old Telegraph Mining Co., 2 Utah, 195; Gibson v. Chouteau, 80 U. S. (13 Wall.), 103; Goepinger v. Ringland 62 Iowa, 76; Kerr on Fraud and Mistake, pp. 44-50; Rowland v. Entrekin, 27 Ohio St., 47, 49; Admr. of John Reed v. Reed, 25 Ohio St., 422; Ivinson v. Hutton, 98 U. S., 79; Reid v. Burns, 13 Ohio St., 49, 59; Rowland v. Entrekin, 27 Ohio.St., 47, Massie v. Stradford, 17 Ohio St., 597; Buckner v. Mear, 26 Ohio St., 514; Rankins v. Hannan 37 Ohio St., 113; Sheeful v. Murty, 30 Ohio St., 50; Dodsworth v. Hopple 33 Ohio St., 160; Truman v. Lore, 14 Ohio St., 144; Kent’s Commentaries, vol. 2 13th Ed., p. 234; Tyler on Infancy, p. 43, et seq.; also pp. 51-2; also p. 70; Story’s Equity Jurisprudence, 13th Ed., vol. 1, sec. 24; Mc Veigh v. Ritenour, 40 Ohio St., 107; Corry v. Gaynor, 21 Ohio St., 277, 280; Reed’s Administrator v. Reed, 25 Ohio St., 424; Moore v. Chittenden, 39 Ohio St., 563; Moore v. Adams, 8 Ohio, 373, 375; Herbst v. Manss, 4 W. L. B., 1058; Roll v. Raguet, 4 Ohio, 400, 420; Goudy v. Gebhardt, 1 Ohio St., 262; Hooker v. DePalos 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195; Moore v. Adams, 8 Ohio, 373; Haines v. Rudd, 102 N. Y., 372; Smith v. Rowley, 66 Barb., 502; Watkins v. Baird 4 Am. Dec., 17; Meek v. Atkinson, 19 Am. Dec., 653; Flatter v. Greenlee, 26 Am. Dec., 370; Devlin on Deeds, pp. 81-82; Yeoman v. Lasley, 40 Ohio St., 190; Baldwin v. Snowden, 11 Ohio St., 203.

We have no ward of testimony in regard to it, no word of explanation. It is har -ly necessary, however, to comment upon this. These being my views upon the testimony and the law of the case, and regardless of any sympathy the court may have, as an individual, for this ■woman, I sustain the motion to dismiss.

Prentiss & Vorce for Defendant in Error, cited: 8 Am. and Eng. Law, 649; Gunsaullus v. Pettit, 46 Ohio St., 27; Stat. sec. 5130; Calvino v. State, 12 Ohio St., 60, 72; Ad. Cont., 732 (bottom page) ; Chitty on Cont., 597 (Ed. of 1851) ; U. S. v. Grossmayer 76 U. S. (9 Wall.), 72; 19 Am. Dec., 71; Terrill v. Achauer, 14 Ohio St., 80, 85; 44 Pa. St., 12-3; 2 Pet. Sup. Ct., 539; 2 Story E. J. sec. 695; 1 Story, E. J., sec. 298; Cox v. Donnelly, 34 Ark., 766; Burgett v. Burgett, 1 Ohio, 469; Anderson’s Dic. of Law, 387; Story Cont., sec 394; 3 N. H., 508,511; 5 Hill, 158; 74 U.S. (7 Wall.) 215; Whar. Cont., sec. 151; Bishop Cont., sec. 721; 26 Barb., 122; 6 Wis., 54, and 14 Cox’s Crim. L., Ca. 617-8, 623; Fribley v. State, 42 Ohio St., 205; 18 John, 515 ; Nash v. Atherton 10 Ohio, 163; Webb’s Admr. v. Roff, 9 Ohio St., 430-4; McVeigh v. Ritenour, 40 Ohio St., 107-8, Truman v. Lore, 14 Ohio St., 144; p. 155 (near the top of the page) ; Williams v. Mears, 2 Disn., 604, 608; 17 New York, 270; 13 Mass., 177-8; 5 Allen, 59-60; 7 Cush., 181-183; 92 Pa. St., 171; 100 Pa. St., 51-52; 56 Ill., 25, 27; 77 Ala., 290; 57 Wis., 288-289, 290-291; Ellis v. Davis, 109 U. S., 485; Dick v. Railroad Co., 38 Ohio St., 389; Dev. on Deeds, sec. 83; Blair v. Coffman, 5 Am. Dec., 659; 26 Am. Dec., 376, note; 14 New York, 123; 11 Mass., 379; 13 Mass., 371; Truman v. Lore, 14 Ohio St., 144, 151; 3 Am. and Eng. Law, 933, note 2; 17 Am. and Eng. Law, 406; 22 Pick., 181; Hooker v. DePalos, 28 Ohio St., 251, 260; 107 N. Y., 111; 102 N. Y., 272, 26 N. Y., 12 14 R. L., 618-620; 131 Mass., 51, 55; Bailey v. Williams, 4 Gifford, 638, 645; 1 Law Rep. E. & I., App. 200; Law Reports, 8 Ch. Div., 473-474, 477; 11 Vermont, 252; 13 Ves. Jr., 581; 151 Pa. St., 594.