#### William Kirksey, Jr., *vs.*Executors W. L. Keith and others.

*Pleadings*— Limitations, *Statute of*— Husband *and Wife.*

Where a party flies a bill to set aside his own deed, on the ground of duress, and more than four years have elapsed since the deed was executed, if he wishes to avoid the effect of his *laches*by showing that the duress continued after the deed was executed, he must make the question in his pleadings and by evidence at the trial.

Upon demands purely legal, the Court of Equity follows the decisions at law in applying the bar of the statute of limitations; but where the peculiar remedies of the Court are sought, a shorter time than the legal bar maybe sufficient to prevent the Court from giving relief.

Where a husband sues his wife, and the bill is taken *pro confesso*against her, the Court is not bound by her admission, but may treat the case very much as if she were an infant, and hold the husband barred by his *laches*in applying for relief.

BEFORE WARDLAW, CH., AT PICKENS, JUNE, 1858.

The decree of his Honor, the Circuit Chancellor, is as follows :

Wardlaw, Ch. On March 6, 1854, William Kirksey, Jr. released and conveyed to W. L. Keith, uncle of grantor’s wife, three houses and lots in the village of Pickens, and the distributive share of said William in the estate, real and personal, of his brother, Silas Kirksey, deceased, in the hands of said W. J_i. Keith, as administrator, in trust for the use of said William’s wife, Eady Catharine, and his children, Bebecca and Joseph Brown; with power in said W. L. Keith to sell and re-invest said estate for the benefit of the beneficiaries, and also to appoint another trustee in his stead to act for said wife and children. On May 15, 1-856, W. L. Keith, as trustee, sold and conveyed the village lots to Alexander Bryce, *34Senior, for the price of $610. W. L. Keith died May 20, 1856, leaving a will, of which Elizabeth B. Keith, Elliott M. Keith and Thomas J. Keith, are executors; and at his death he had not exercised the power of appointing a substitute or trustee; nor had he fully administered the goods and credits of said Silas Kirksey, deceased; and of such as were unadministered, Frederick N. Garvin became administrator.

On May 3, 1S58, William Kirksey, Jr. filed this bill, making his wife and children, the executors of W. L. Keith, and the administrator, Garvin, defendants; in which he alleges that said deed of trust was obtained from him by fraud and duress practised by said W. L. Keith, and prays that the deed may be set aside and cancelled; that the executors of W. L. Keith may account for and pay over to him the proceeds of the lots sold, and that they and Garvin may likewise account and pay his portion of Silas Kirksey’s estate in their hands aud control. Elizabeth and Elliott, two of the executors of Keith, in separate answers, admit the importunity, but deny any fraud or duress of their testator concerning the execution of the deed ; a formal answer is put in by next friend for the children of plaintiff, they being infants; and the bill is taken *pro confesso*against the,wife, Eady 0., and against T. J. Keith and F. N. Garvin.

It is considered that such duress is proved in this case as to render the deed voidable, and that no positive confirmation by the grantor is established. Sto. Eq. J., 239 and n; *Gregg vs. Harllee,*Dud. Eq., 42. It is unnecessary to repeat the words of the witnesses, as a summary of the evidence will suffice: W. L. Keith had been, at the time of his death, for twenty-eight years Clerk of the Common Pleas for Pickens, and he possessed great influence in his region. William Kirksey is civil and intelligent when sober, but he was, about 1854, addicted to intemperance, and when drunk disposed to violence. On January 10, 1854, William Kirksey was arrested and committed to jail on a peace warrant issued by W. L. Keith, as magistrate ex-officio, based on information by *35Kirksey’s wife. On February 17, 1854, Kirksey entered into a recognizance to keep the peace before W. J. Gantt, a magistrate, himself in the sum of $1,500, with seven sureties, each in the sum of $250, and was discharged from imprisonment. He was brought back in three or four days afterwards by L. C. Craig, one of his sureties, and surrendered to the clerk, who took him to jail without new warrant, and he remained in confinement until he executed the deed, when he was discharged on his own recognizance by Keith. Throughout the imprisonment, W. L. Keith frequently and strongly urged Kirksey to make a deed of trust for the benefit of his family, and, until this purpose was effected, obstructed his enlargement as far as practicable. He dissuaded Mr. Parsons, now ordinary, and Mr. Hagood, now clerk, who were inclined to become Kirksey’s sureties in a recognizance for his good behavior, from interference in his behalf until he should execute the deed, insisting that the sum of the recognizance should be $5,000, at least, and threatening to prosecute for estreat in case of any breach ; promising, at the same time, to discharge the prisoner on his own recognizance, if he would execute the deed. He induced Sheriff Bryce to withdraw an indulgence he had granted to the prisoner on account of failing health, of changing his cell in the upper story of the jail to the lower room, saying that if Kirksey were confined he would make the assignment as he ought to do; and he said to the Sheriff when the deed was executed, that Kirksey would have made it before if he had been kept in the upper cell. Kirkeey at first refused to execute the deed, declaring he would rather rot in jail, but after his health had suffered, he said to the Sheriff, I will do anything that is right to get. out of jail, as the infernal place will kill me. This was reported to Keith, and he took the deed which had been previously prepared, to the jail, and read it to Kirk-sey, who assented to its provisions; and the parties proceeding to the Clerk’s office, the deed was executed there in the presence of the Sheriff and P. Alexander, as attesting *36witnesses, while Kirksey was sober, and he was then set at large on his single recognizance. This is duress in its most reprehensible form, namely: under color of law by one of its ministers. This Court, however, cannot give damages for the tort of Keith, and he takes no pecuniary interest under the deed which can be reached. After the arrest, plaintiff and his wife lived apart for about nine months, but their cohabitation was then resumed and has since continued.

If the plaintiff had made timely application to this Court, he might well have been entitled to the relief sought, of having the deed declared void, but his *laches*creates an obstacle seemingly insuperable. He acquiesced in the instrument for more than the statutory bar of four years after the duress had been removed, without clamor or suit. As to the children who are infants and take beneficially under the deed, it can hardly be controverted that the Court is bound to interpose this bar in their behalf, for the formal answer of infants, submitting their rights to the protection of the Court, is never interpreted as waving any proper defence, which should be made for them ; and I think one under the disability of cov-erture is entitled to the same protecting interposition of the Court, where she has waived no right by separate answer put in under leave of the Court, nor on private and separate examination, and she is committed only by an order *pro co?ifesso*entered .for lack of answer. Such order should be rarely, if ever, entered against a married woman sued separately, unless in case of great contumacy on her part in refusing to make any defence; and certainly her defence, disclaimer or surrender, is most regularly made by answer filed on leave of the Court. It is said, that whenever a husband as plaintiff sues his wife as a defendant, he elects to treat her for the purposes of the suit as a *feme sole,*and she may answer as a *feme sole*without leave of the Court. Sto. Eq. PI., sec. 17. But this privilege of the wife is not to be turned to her disadvantage, nor is she to be construed as admitting whatever she forbears to answer. It is at least *37certain that it is in the discretion of the Chancellor to determine what evidence shall be required to prove the demand of a bill taken *pro confesso. Steam P. Co. vs. Roger,*Chev. Eq.. 48. And I am not content in this case with the evidence of the wife's waiver or surrender of her interests under the deed. The settlement,'although unfairly produced, is fair in' its provisions. Upon proper application, a trustee may be appointed for the wife and children of the grantor.

It is ordered and decreed that the hill be dismissed, but without costs as to the executors of W. L. Keith.

The complainant appealed on the grounds :

1. Because it is respectfully submitted that ’the complainant did not acquiesce in the instrument sought to be avoided, for more than four years after the duress had been removed.

*2.*Because the statutory bar was incomplete, in its operation at the time the complainant applied to this Court for relief, and it is, therefore, inapplicable to his case.

*3.*Because there was no sufficient acquiescence in the instrument, on the part of the complainant, either in point of time, or by deed or act, to bar him from the aid of this Court to avoid the said instrument.

4. Because the order, *pro confesso,*against Eady Kirksey, the wife of the complainant, was regular and binding upon her.

*Reed, Wilkes,*for appellant.

*Keith, Orr,*contra.

The opinion of the Court was delivered by

Wardlaw, Ch.

The first ground of appeal insists, that the plaintiff did not acquiesce in the deed sought to be cancelled, for more than four years after the duress, under which it had been executed, had been removed. It is slated in the argument here, in support of this ground, that the undue influence of the grantee, W. L, Keith, over the plaintiff, continued *38during the life of the former, and ceased only at his death, which happened two years before the bill was filed. The conclusive reply is, that the pleading of plaintiff assails the the deed exclusively for duress preceding and attending the execution of the deed; and that at the trial there was no offer of proof of duress or malign influence afterwards. The case in this respect is settled by the doctrine of *Beck vs. Searson, 8*Rich. Eq., 130.

The third ground of appeal additionally insists that there was no acquiescence of the plaintiff, by act or deed, barring him from relief in this Court. The decree does not proceed on the affirmation of any such fact; contrariwise, concedes that there was no positive confirmation of the deed by the grantor. What is treated as acquiescence is simply the forbearance of the plaintiff for four years and two months to institute any suit or plaint. It was the *laches*or default of the plaintiff, not his active misconduct, which was considered a bar to his relief. We are not convinced of error in the Chancellor in this respect.

The second ground of appeal affirms that the bar of the statute of limitations was incomplete in duration when the bill was filed. This means and implies that one who pursues an estate for any claim in equity, is entitled, in addition to the four years allowed by the statute of limitations, to nine months for the commencement of his complaint by bill, because, under the. Act of 1787, no action can be instituted for nine months after the death of a testator or intestate for recovery of any debt of the deceased. It seems to be the doctrine of the Law Court that the effect of the latter Act is to prolong the barring term of the statute of limitations as to *all suits*for nine months, wherever the representative is exempt from action for this fraction of a year for recovery of a debt; yet in the last case on the *point,Lawton vs. Bowman, 2*Strob., 190, one member of that Court placed his concurrence entirely on the score of authority, avowing his belief that the result was against principle. It is plain that neither *39the statute of limitations nor the Act of 1787 applies, in express terms, to the Court of Equity; yet in avoidance of any appearance of conflict between co-ordinate tribunals, we would follow here the decisions of the Law Court as to demands strictly legal. I have sufficiently expressed my views, as a single Judge, concerning the operation of the Act of 1787, as to this Court, in the case of *Sollee vs. Croft,*7 Rich. Eq., 34, and as to the statute of limitations in *White vs. Bennett,*Ib., 260. We follow the statute of limitations in positive bar of legal demands, whether in obedience or analogy, it is immaterial to consider; but it has certainly never been authoritatively intimated in this Court that we could not bar the peculiar remedies of this Court at a term short of the term of the statute. We exact diligence in plaintiffs. The Chancellor in his decree barred the plaintiff for his *laches,*and not by the terms of the statute of limitations. The doctrine on this subject is well stated by C. J. Taney, in *McKnight vs. Taylor,*17 Pet., 202: “ It is not merely on the'presumption of payment or in analogy to the statute of limitations that a Court of Chancery refuses to lend its aid to stale demands. There must be conscience, good faith and reasonable diligence to call into action the powers of the Court. In matters of account, where they are not barred by the act of limitations, Courts of Equit3?- refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost. The rule on this subject is settled by *Platt vs. Vultier,*9 Pet., 416, and where conscience, good faith and reasonable diligence are lacking, a Court of Equity is passive and does nothing; and therefore from the beginning of Equity Jurisdiction, there was always a limitation of suit in that Court.” V. C. Wigram supports this doctrine in 3 Hare, 357, *Tatam vs. Williams.*In our own case of *White vs. Bennett,*7 Rich. Eq., 260, a vendee, suing for specific performance, was held to be barred by his *40
      *laches*for two years and three months. This case, like that, belonged to the peculiar remedies of this Court. It should be borne in mind that the person whose death, in this case, is supposed to prolong the term of the statute, is a naked trustee, and that his representatives are not pursued for any relief out of his estate.

On the fourth ground we consider it unnecessary to add to the remarks in the decree.

It is ordered and decreed that the appeal be dismissed, and the decree be affirmed.

Dunkin, Ch., concurred.

*Decree*affirmed,