Hillsdale County MI Archives Court.....Tate, Vs Whitney 1837 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/mi/mifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:49 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY. Benjamin Tate v. Jacob Whitney. Consideration: Duress. Where the fears of a timid and ignorant man were practiced upon by threats of a prosecution for slander, and he was thereby induced to assign a mortgage to another, the assignment was held to be without consideration, and a re-assignment was decreed. (a.) This bill in this case was filed August 17, 1837, and states that on or about the second day of June of the same year, the complainant possessed a certain indenture of mortgage, executed by William Gilcrist to complainant, bearing date April 8, 1837, of certain premises therein described, conditioned to pay five hundred dollars, and interest, six months from the date thereof. That, on or about the second day of June, 1837, complainant had a conversation with defendant at Jonesville, in the county of Hillsdale, in regard to the subscription, by the complainant, for a certain newspaper called the Christian Palladium, in which conversation complainant told the defendant that he never had subscribed for said paper, nor authorized any other person to subscribe for said paper for him (the complainant); and that complainant further stated to the defendant that he, the defendant, had forged his (the complainant's) name, or given some other person liberty to sign the complainant's name for said paper, which the defendant denied. That, soon after such conversation, the defendant threatened to prosecute the complainant for the words he had spoken as aforesaid, and told complainant if he did not assign over to the defendant said mortgage, and the bond referred to therein and accompanying the same, as a collateral security, and settle with him, the defendant, for the language complainant had used in relation to the subscription for said newspaper, he, the defendant, would keep the complainant in prison eight or ten years, for what he, the complainant, had said; and complainant being intimidated and greatly distressed at the threats i and menaces of the defendant, and being ignorant of his own rights, and of the law, was induced, by these threats and menances of the defendant, to execute an assignment of the bond and mortgage, and did, on the second day of June aforesaid, execute and deliver to the said defendant an assignment of said bond and mortgage, without any consideration of whatever name or nature, and did actually deliver over said bond and mortgage. The bill further alleges that the complainant had applied to the defendant to re-assign and re-deliver said bond and mortgage, and to pay complainant the amount thereof, etc., which defendant had refuged to do; and prays that the defendant may be decreed to pay to the complainant whatever money, if any, he may have received, or shall receive, on said bond and mortgage, and be restrained by injunction from assigning or in any way transferring of disposing of the same, and that defendant may be decreed to re- assign and deliver up said bond and mortgage to complainant. The answer admits the bond and mortgage, and that at the time of the assignment thereof there was then due thereon about the sum of three hundred and thirty-five dollars; states that previous to the time of the assignment stated in the bill the defendant had been frequently informed by divers good and worthy citizens of the county of Hillsdale that the complainant had reported and declared, and was in the frequent habit of reporting and declaring, that the defendant had forged the name of the complainant to a subscription for the newspaper mentioned in the bill; that defendant was advised to ask some redress of the complainant for his slanders; that the defendant called on the complainant, and had a conversation with him, in which the defendant informed the complainant of the slanderous, false and defamatory declarations made by the complainant, of and concerning the defendant, charging him with the crime of forgery; that the complainant admitted to defendant that he had before then, at divers times and places, and in the hearing and presence of divers persons, reported and declared that the defendant had forged his (the complainant's) name to the said subscription, and that the reports and declarations were false, and without any foundation in truth, and that the complainant was willing to redress the wrong he had done to the reputation and good name and credit of the defendant by such false and slanderous reports; to which the defendant replied that the said complainant must make him (the defendant) satisfaction in some way, or that the defendant should seek redress by proceedings at law; that complainant then informed defendant that if he (the defendant) would take the bond and mortgage in full satisfaction for the wrongs done him by the false and slanderous reports and declarations of the complainant, he (the complainant) would duly assign over the same to the defendant; and that complainant strongly solicited the defendant to accept of the mortgage in satisfaction for the said wrong; that at the special request and urgent solicitation of the complainant, the defendant agreed to accept and receive the bond and mortgage in full satisfaction of said wrong and injury, and thereupon the complainant assigned and delivered the said bond and mortgage to defendant, and defendant at the same time acquitted and discharged complainant from all liability for his false and slanderous reports, etc. The answer denies the threats of prosecution, etc., and also denies that defendant told complainant he would keep him in jail, as stated in the bill. The cause was heard upon bill, answer and proofs. E. Lawrence, for complainant. P. B. Adams, for defendant. The Chancellor.—From the bill, answer and testimony, it is apparent that the defendant was practicing upon the fears of a timid and ignorant man, and that the assignment of the mortgage in question was in fact procured without any consideration whatever. The complainant is entitled to a decree that the defendant, Whitney, re-assign and re-deliver said mortgage to the complainant within thirty days from the service of a copy of the decree in this cause. Decree accordingly.* *An appeal was taken in this case to the supreme court, and the decree of the chancellor affirmed January 22, 1839. -------------------- (a.) The compromise and settlement of a claim asserted in good faith is a sufficient consideration for the settlement, and for any obligations given by one party to the other in consummation of it. Van Dyke v. Davis, 2 Mich., 144; Weed v. Terry, Wal. Ch., 501; S. C., 2 Doug. Mich., 344; Hale v. Holmes, 8 Mich., 37. In Gates v. Shutts, 7 Mich., 127, it appeared that defendant had charged complainant with intentionally burning his own mill, and made claim for payment for certain wheat of the defendant which had been placed in the mill before it was burned; that complainant gave his note and mortgage for the value of the wheat, but afterwards filed a bill to set aside these securities as obtained through threats, fear and duress. Held, that the securities must stand if there was no fraud, and no undue advantage taken by defendant to bring it about, and he had reason to believe the charge, and did not manufacture it to frighten complainant into a settlement. Upon this general subject see 1 Story Eq. Juris., § 131, et seq.; Adams' Eq., 183, and cases cited in 4th Am. ed. Additional Comments: CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN BY ELON FARNSWORTH, Chancellor File at: http://files.usgwarchives.net/mi/hillsdale/court/tate31gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 8.1 Kb