On motion eor re-hearing.
Opinion by
Philips, P. J.A motion for re-hearing is pressed in' this case by appellants chiefly on the ground that the allegations of the petition are insufficient to have authorized the admission of the evidence essential to make out a case of duress. In other words, the contention is that the petition should have averred in express terms, that by reason of the threats of O. D. Edwards, the free will and agency of Mrs. Turley were overcome, etc.
7. It is true that under our code of practice the f Acts are constitutive of the cause of action, and no evidence of facts not pleaded is admissible. But it is also true that only the substantive facts are necessary to be-pleaded. Neither conclusions of law nor matters of evidence are required or permitted. As I had occasion to say in Kerr v. Simmons (82 Mo. 275): " Under our system of pleading the facts constituting the cause of action, or matter in defence, are required to be stated. The relief to which the party is entitled, the effect of the matters set up, is determined by the court as a matter of law from the facts pleaded. Neither evidence nor conclusions of law are to be stated — -the practice act was to make all pleadings special, to abolish general averments *690stating conclusions of law in a declaration or answer. It was meant that the pleadings should be a statement of the case on both sides, not of the evidence, but of the facts to which the law is applicable. The allegation controverted must be the statement of a fact; hence, in making an issue he has nothing to do with legal conclusions. The code itself provides, that " the court may grant any relief consistent with the case, made and embraced within the issue.”
The substantive facts alleged in the petition are, that the plaintiff is a mother, that her son stood charged with the crime of perjury, and was at liberty, for he was a fugitive from justice; that said Edwards, who stood as bail for her son, demanded of her the note and deed of trust as an indemnity against liability of such bailor; that she refused to accede to this request, whereat he threatened her with the arrest and punishment of her child; then, and not until then, did she, through fear of the execution of this threat, yield to his importunities, and make the note and deed.
The opinion holds that such a threat, made under such circumstances, was well calculated to excite a mother’s fears, and if it did that, and under its influence alone she was led into the compact, that is a fact from which the jury might infer duress. Under such an allegation of the substantive fact of the threat, and -the existence of the fear, it was perfectly competent on the trial to institute inquiry as to the extent and degree of the fear — the physical facts — so as to enable the jury to determine its probable mental effect, and whether it in fact caused the making of the compact. The law of the case would be that such a threat, followed by fear of its execution, would constitute duress of imprisonment, if the jury believed from the facts and circumstances that the mother was thereby so put in fear as to not act " with that freedom and power of deliberation that must undoubtedly be considered as necessary to validate a transaction of such a description.” Williams v. Bailey, supra. One of the *691chief grounds of the competency of evidence “is the known and experienced connection between collateral facts and circumstances, satisfactorily proved, and the fact in controversy.” 1 Greenl. Ev., sects. 2, 18.
The evidence adduced at the trial, not being preserved in the bill of exceptions, the intendment of law is, that every fact “ consistent with the case made and embraced within the issues ” was produced and found.
The case of Feller v. Green (26 Mich. 70), cited by appellants, is no support for their position. The defendant there, although arrested on an unfounded charge oí bigamy, was permitted to go at large, and did take counsel of an attorney, and was advised that he was in no danger. There was also evidence tending to show that the note was given in settlement of an existing indebtedness independent of the subject matter of the arrest. As there was a verdict for the plaintiff, in favor of the validity of the note, the supreme court simply refused to reverse it, as in its opinion, the facts so found were not sufficient to enable the appellate court to say as a matter of law that a case of duress had been made out. But the learned judge, who delivered the opinion, very significantly observed, that had the trial court found in favor of the question of duress, there were, perhaps, facts sufficient appearing to have upheld the finding; “but we cannot draw such conclusion for him, unless it is so entirely inevitable as in fact to become a conclusion of law.”
In the case under review the facts pleaded are entirely different. The threat of prosecution was made unless the note, etc., were given. Under fear of the execution of such threat the mother yielded, and the verdict was in her favor. As the averments contained the strong elements of coercion, we will not disturb the verdict..
Are-examination of the authorities and the so and reason of the law has but confirmed us in the correctness of the opinion. The tendency of modern adjudication is in that direction. In a recent case decided by the su*692preme court of Rhode Island (Foley v. Green), it is held that “when a son had been guilty of embezzlement, and his mother made a note and executed a mortgage to the employer from whom he had embezzled, and the court was satisfied that the mother’s controlling motive was to protect her son from exposure and prosecution, that she was not a free agent, and that the note and mortgage should be annulled and canceled. The maxim in pari delicto est conditio defendentis, does not apply.” See Vol. 21, No. 9, Central L. J., page 175, and authorities cited. We are unwilling that the law, which is among the noblest of sciences, shall stand still in the march of civilization while all its fellows advance.
2. Counsel urges upon our attention the case of Kitchen v. Greenabaum (61 Mo. 110). We had not overlooked this case. Its history and facts are quite familiar to us. It is not this case. It is not parallel in its facts or the law applicable to this. There was no question of duress involved. The party seeking the aid of a court of equity had himself mluntarily engaged in a transaction forbidden and outlawed by both the organic and statute law of the state. Tie could have no standing before the chancellor in the forum of conscience, because he could not open his mouth without admitting that he had, without coercion, violated a penal statute. The language, arguendo, of Judge Sherwood, that in a transaction involving moral turpitude no inquiry will be made into the relative guilt of the contending parties, announces a correct principle; because among participants in a public offence there can be no apportionment of accountability. But it in no degree subverts or impinges upon the other rule, that there can be no binding contract where the mere physical act of concurrence therein has been coerced through duress of imprisonment.
3. It is finally insisted, in support of this motion, that this court has no jurisdiction over the subject matter DÍ this action, as it involves the title to real estate. Had counsel made this discovery before they took the chances *693of a favorable decision by this court we might have more faith in the candor of the suggestion. We do not perceive how the title to the mortgaged property is involved in this controversy. In making the deed of trust the plaintiff asserted and confessed that she had the title to convey, and the defendants — the eestuis que trust — in •defending and asserting the validity of the mortgage, affirm their own while admitting the plaintiff’s interest. Thefe is, therefore, no issue involving the title to real •estate. It is not remotely, much less directly, involved. The motion for re-hearing is denied.
All concur.