Van Dyke v. Wood

Ingraham, J. (dissenting):

I do not concur with Mr. Justipe Rumsey. There was no relation of trust and confidence between the parties. William G-. Wood sought to obtain his wife’s release of her right of dower in certain premises owned by him, she having made an agreement to release all her dower rights in his lands. She refused to execute such a release unless the said William G. Wood would execute a conveyance of certain other lands described; and he, yielding to such demand and coerced by his said wife and compelled by his necessities to comply with the said demand, conveyed the last-mentioned land to the said Yirginia Wood. I do not think that this is sufficient to sustain a finding that the conveyance was procured by duress. The question as to what action constitutes such duress as to justify a court of equity in upsetting an executed contract, has been much discussed; but it must, I think, be considered settled that the execution of an instrument, “ unattended by any act of violence or threat of any kind calculated in any degree to intimidate the party or to force the result or to compel that consent which is the essence of every valid contract,” is a voluntary act, and the instrument cannot be avoided on the ground of duress. The fact that the party did consent, though reluctantly, makes the instrument binding, and he must abide the consequences of his voluntary act. (French v. Shoemaker, 14 Wall. 333.)

Assuming that the husband had a right to disaffirm that transaction and procure a reconveyance of the land on the ground that he was coerced into making the transfer, it is to me quite clear that he would only be entitled to such a reconveyance by restoring the other party to the contract to the position in which she was at the time the conveyance was executed, namely, giving back to her the consideration which induced her to execute a release of her inchoate right of dower. Before William G. Wood or his assignee could dis-*219affirm the agreement and recover hack the property conveyed, he was bound to restore to the defendant Virginia Wood her inchoate right of dower in the Third avenue property. That he has failed to do and has put it out of his power to do. Whatever her rights were in that property, she was entitled to be put in the same position that she was before her husband executed the conveyance which the plaintiff now seeks to avoid. The wife was not bound to accept a gross sum as the value of her inchoate right of dower. She was entitled to have that inchoate right of dower preserved to her intact, and it seems to me that the husband should not be entitled to a reconveyance of the property which he had conveyed to his wife as a consideration for her release of her right of dower, except upon putting her in the same position that she was prior to the execution by her of her release of dower.

The case of Carpenter v. Carpenter (32 N. Y. St. Repr. 354), relied on by the plaintiff, is not in point. That was an action for the specific performance of a contract to convey property worth $7,000. The sole consideration of the contract was the execution by the plaintiff of a mortgage for $2,000, by which she subjected her dower right to the lien of a certain mortgage. Her inchoate right of dower could not exceed in value a few hundred dollars, and the husband in this case offered to pay off the mortgage, which would restore the plaintiff to the same right that she released by joining with her husband in the execution of the mortgage. The court held that, in view of the consideration and the circumstances under which the contract was made, it would be inequitable to specifically enforce the agreement, especially as by the defendant’s offering to pay off the mortgage the. plaintiff was restored to her rights which she lost by joining with her husband in its execution.

This is not a case where the person who procured the conveyance sought to be set aside made any claim against the defendant’s property or threatened to take action against the defendant which would subject him to any penalty or forfeiture. There was no duress within the ordinary meaning of that term. The appellant simply had an interest in that property which she refused to release. She threatened to take no affirmative action, and, in fact, made no threat of any kind. She had an interest in this property. To release that interest, she required a payment of a consideration; and the husband, *220with full knowledge of that fact and for his own advantage, agreed to pay her a consideration for the relinquishment of her interest. That she insisted upon a hard bargain may be conceded, but the transaction was entirely voluntary by the husband, without threat or duress of any kind, except that he wanted the appellant’s property.

But there is another ground which seems to me to present an insurmountable obstacle to the plaintiff’s recovery, and that is, that by keeping and using the right which he acquired from his wife, he recognized the validity of the contract under which the conveyance ■to her was made, and by failing to avoid the contract within a reasonable time after the removal of the duress he ratified and recognized the validity of the. agreement under which this conveyance was made. The principle of ratification is stated in 10 American and English Encyclopaedia of Law (2d ed.), 337, as follows : “ Where it is sought to avoid a contract because induced by duress, the person seeking such avoidance must proceed within a reasonable time after the removal of the duress. If he remains silent for an unreasonable length of time, or if he keeps property which he may have acquired under the contract, or.recognizes the validity of it, either by making payments thereon, or otherwise, he will be held to have elected to Waive the duress and ratify the contract.” And the cases cited in the note seem to be uniform in holding that a delay of three years in avoiding the contract, unexplained, was sufficient to ratify the deed. In the case of Oregon Pacific R. R. Co. v. Forrest (128 N. Y. 83) it was held that a delay of six years in repudiating the agreement and paying interest upon the bonds which the plaintiff alleged had been extorted from it was a ratification of the contract, and that it was too late to claim that the bonds had been obtained by duress, the court saying: One entitled to repudiate a contract on the ground of duress should, like one who attempts to repudiate a contract on the ground of fraud, act promptly.”

The complaint here alleges that on December 1,1893, the defendant William Gr. Wood applied to the defendant Virginia Wood to join with him in the execution of a deed of certain lands described, whereby she would release her apparent inchoate right of dower therein; that she refused to release the same unless he, in payment for such release, and as a. condition precedent thereto, should '£ exe*221cute and deliver to her, said Virginia Wood, the following described land and premises,” which the said William Gr. Wood conveyed to the defendant Virginia Wood, the conveyance thereof being recorded on December 12, 1893. There is no allegation that the defendant William Gr. Wood ever repudiated this arrangement or ever sought to obtain a reconveyance of the lands. On April 23, 1896, he executed a contract by which he sold and assigned to the plaintiff a claim "for restitution of real property, or the value thereof, against one Virginia Wood, this more than three years after the alleged duress, and this action was not commenced until December 5, 1899, almost six years thereafter. In all the authorities cited in the note to the American and English Encyclopaedia of Law to which, attention has been called, a very much shorter period than six years was a bar to granting the plaintiff any relief.

But I do not think that the plaintiff can maintain this action. It is a general principle, well settled, that a contract made under duress is only voidable and not void, because it may be either ratified or dis-affirmed by the party upon whom the duress was imposed. If that is so, the right to disaffirm a contract which is void because of duress is a personal right vesting in the person upon whom the duress has been imposed, and he only can avoid it. (Oregon Pacific R. R. Co. v. Forrest, supra.) In this case, so far as appears, the person upon whom the duress was imposed never elected to avoid this contract. He has attempted to transfer to the plaintiff a claim for restitution of real property, or the value- thereof, upon one Virginia Wood, but he has himself never elected to rescind, and I do not think the plaintiff in this action can elect for him and, under such a transfer, recover.

I think the judgment should be reversed.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer within twenty days on payment of costs in this court and in the court below.