The appellants instituted suit in the court below against the appellee, on five several promissory notes, and for the recovery of one-half of lot three, in block ninety-seven, in the city of Austin. Hancock &' West and Sublett & Hamilton intervened, claiming the half lot by deed from Zuschlag.
Judgment was rendered in the court below against Zuschlag, and in favor of Phelps & Johnson, for $2429 15, and against Phelps & Johnson and in favor of the intervenors, for the half lot of land; and from which judgment both Zuschlag and Phelps 6 Johnson have appealed.
The first question presented for decision is raised in defendant’s, Zuschlag’s, answer, setting up the fact that the notes sued on, and the deed from Zuschlag to Phelps & Johnson were all obtained through duress and threats, and therefore void. There is no statement of facts accompanying the transcript. We are, therefore,left to presume that the issues presented to the jury by the court *380were legiximate issues under the facts, and that the finding of the jury in response to those issues was correct, and fully authorized by the facts proven. The jury found that Zuschlag was arrested at the instance of Johnson, one of the plaintiffs, not for the vindication of public justice, but for the purpose of extorting from him a general settlement or payment of the' private claim of Phelps & Johnson; that the notes and deed were signed by Zuschlag while under arrest, and that he did not sign them voluntarily, but through fear of criminal prosecution, and that there was no proof of any valuable consideration, passing from the plaintiffs to the defendant for the execution of said notes and deed.
Justice Story defines a contract to be “ a deliberate or voluntary engagement between competent parties, upon a legal consideration, to do or not to do some act.” Tried by this rule, we are forced to the conclusion that the pretended contract or contracts are wanting in at least two important and necessary particulars— they were involuntary, and without any consideration.
Again, the rulé requires that all parties to a contract must be competent to contract, and able to bind themselves under the contract. The appellant claims that when he signed the notes and deed sued on, he was under duress of imprisonment; that he was forced by threats, and through fear, to sign the notes and deed against his will and volition; and that, therefore, he should not be held bound by those acts. The common law rule that imprisonment under due process of law, and for probable cause, is not such duress as would invalidate a contract by the party, while under arrest, has been materially modified by elementary writers and judicial decisions, and the better and more reasonable rule is believed to have been adopted, by authority, that where an arrest for probable cause is made under lawful authority, but for an improper purpose, and the person arrested pays money, or enters .into any contract, the object .of which is to procure his enlargement, such an arrest will be considered duress of imprisonment, *381and the party arrested may recover back the money so paid, or avoid any contract made for the purpose of procuring his liberty. (Story on Contracts, 394; Richardson v. Duncan, 3 New Hampshire, 508.) In the case of McGowen v. Bush, 17 Texas, 201, Justice Lipscomb seems disposed to modify the common law rule in regard to duress still further, and there holds that duress by force, whether of the loss of property or personal safety, might be sufficient to avoid a contract, when made under such fear. In the case at bar, the jury found that Zuschlag, while under an arrest procured by Johnson for the purpose of extorting a private settlement, was induced through fear of criminal prosecution, to execute the deed and notes sued on, and we feel fully authorized in pronouncing the arrest, so far as Johnson was concerned, wholly unauthorized, as no man in this country has- any right to procure the arrest and imprisonment of another, for the purpose of effecting private or selfish ends; and therefore any contract, or note, or deed, which Johnson might have extorted from Zuschlag during such arrest, through fear of criminal prosecution, must be held as wholly void, and conveying no rights or interest whatever; nor can such notes or deeds be evidence of any indebtedness or obligation.
■ There appears to be some contradiction in the verdict of the jury, as they find no valuable consideration for the execution of the notes, and yet they find by the evidence, that the defendant is indebted to the plaintiffs for the amount of the note less the credits. It would be impossible to reconcile the two findings, excepting upon the hypothesis that in their last finding the jury consid ered the notes evidence of an indebtedness. Be this as it may, the plaintiffs below sued upon the notes and must recover upon the notes, if they recover at all; and as .we have decided that the notes were void, the judgment of the court below in favor of plaintiffs and against Zuschlag must be held erroneous and subject to a revision, But as the deed to Phelps & Johnson was made under *382duress, and therefore void, and as the intervenors have proven a hona fide transfer from Zuschlag to them, of the land in dispute, undisputed by their grantor, the title in them must be regarded as perfect. And therefore, there was no error in the lower court in regard to the title to the half lot of land claimed by appellants and intervenors. -It is therefore ordered by this court that the judgment rendered in the lower court against Zuschlag and in favor of appellants, for the sum of $2,429 15, be reversed and the cause dismissed as to Zuschlag; and that the judgment of the court rendered in favor of the intervenors, Hancock & West and Sublett & Hamilton, be affirmed.
Ordered accordingly.