MORTGAGE — DURESS.

[Hamilton Circuit Court,

November Term, 1892.]

Cox, Smith and Swing-, JJ.

#### WESTERN AVENUE BUILDING ASS’N v. LORENZ WALTERS.

Mortgage Invalid from Coercion not Amounting to Duress.

A mortgage obtained from an old man and his wife by threats of the arrest and prosecution of their son for a penitentiary offense, will be declared invalid, although there; is no coercion amounting to duress, if the transaction is the result of a force controlling the free action of the will.

Error to the Court of Common Pleas of Hamilton- county.

SWING, J.

From the facts as shown by the evidence it clearly appears tha-t Walters defendant, is undoubtedly an old, quiet, inoffensive man of scarcely ordinary mental capacity. Without warning he was taken from his bench where he was at work, and driven to a saloon-, where, surrounded by t-he officers of the association! and -his confused, criminally guilty son, -he is informed -that his son is about to-be arrested and sent -to -the penitentiary, and that he must give -a mortgage at that time and place. At first he refused, but finally he yields, after from one-half -to-an hour’s -threats and importunities, the son joining with the officers to bring about this result. As soon as h-e signs, -t-he whole of t-he company 'repair to the-old man’s h-o-me, where the' wife is attacked in the same way, and although she-at first refused -to sign, the same inducements finally prevail with her, and she-signs the mortgage. It is clear to our mind that these parties were not free agents-in this transaction, and were not capable of protecting themselves against those parties. T-he facts sh-own clearly in this case call upon a court of equity -to protect -this old man and his wife. Therefore this court direct a de-cree in their favor,, ■for two reasons;

1. It is against public policy that the mortgage should stand. The mortgage was obtained, we think, as shown by the evidence, by reason of the threats-of th-e plaintiff, through its officers, to arrest the son -of Walters and send him-to the penitentiary unless the mortgage was given, and it was given by Walters- and wife in order to prevent the arrest and prosecution of-their son.

*729L. M. Hadden, for the Building Association.

Bode & Spiegel and C. K. Brown-e, *contra.*

2. The mortgage should not stand when the following principles of the law are applied to the facts of this case. Mr. Pomeroy, in his work on Equity, sec. 951, says:

> “Where there is no coercion amounting to duress, but a transaction is the result- of a moral, social or domestic force exerted upon a party, controlling the free action of his will, and preventing any true consent, equity will relieve against the transaction on the ground of undue influence, even though there may be no invalidity at law. In the vast majority of instances undue influence naturally has a field to work upon in the condition or circumstances of the person influenced which render him peculiarly susceptible and yielding — his dependent or fiduciary relation toward the one exerting the influence, his mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the like.”

And Mr. Story, in his work on equity, sec. 239, states the same general principles a-s follows:

> “Cases of an analogous nature may easily be put, where the party is subjected to undue influence, although in other respects of competent understanding — as, where he does an act, or makes a contract when he is under duress, or the influence of extreme terror, or of threats, or of apprehensions short of duress; for, in cases of this sort, he has no free will, but stands *in vinculis*And the constant rule m equity is that wuere a party is not a free agent, and is not equal to protecting himself the court will protect him.”

■ The facts -shown in this case -clearly brings it under these rules.