Opinion
14875.
JUNE 6, 1944.
REHEARING DENIED JULY 11, 1944.
Petition for injunction. Before Judge Dorsey. Fulton superior court. February 25, 1944.
Norman I. Miller, Eugene Talmadge, and G. H. Howard, for plaintiff.
G. B. Tidwell, Herbert J. Haas, Thomas J. Brown Jr., and Fraser Irwin, for defendants.
The petition, seeking to cancel a deed because of duress, and alleging in substance that, in the absence of the grantor's husband, but with a number of her sons present, she was engaged in conference at her home for three hours, the grantee and three other persons also being present, and that one of the three was attempting to get her to sign the deed, and said that she would have to go to jail if she refused, did not allege grounds for cancellation; and the court did not err in sustaining the demurrers and dismissing the action.
No. 14875. JUNE 6, 1944. REHEARING DENIED JULY 11, 1944.
On October 26, 1943, a written instrument was signed by Mrs. Ethel A. Mobley (buyer), and immediately under her signature appears: "The above proposition is hereby accepted, this ____ day of ____ 19__. Mrs. W. H. Hoover (seller), Dolvin Realty Company by P. E. Mitchell, agts. " This instrument recites that "the undersigned buyer agrees to buy and the undersigned seller agrees to sell" a tract of land in the 12th land district, being a part of lot No. 191 in Henry County, Georgia, containing 51.41 acres, the purchase-price to be $1500; that the purchase-money has been placed in the hands of Dolvin Realty Company to be applied to the purchase-price of the land when the sale is finally consummated; that in negotiating the contract the agents have rendered valuable services, and the seller agrees to pay the agents a commission in accordance with the schedule printed on the reverse side thereof; and that the instrument is to be regarded as an offer by the buyer or seller, whoever signs first, and is open for acceptance by the other.
On October 26, 1943, Mrs. W. H. Hoover executed a warranty deed conveying to Mrs. Ethel A. Mobley the same 51.41-acre tract of land referred to in the above contract for a recited consideration of $10 and other valuable considerations. On November 22, 1943, a dispossessory warrant was issued by a justice of the peace on the affidavit of Thomas J. Brown Jr. as attorney for Mrs. Ethel A. Mobley, the warrant directing the sheriff and his deputy to deliver to Mrs. Mobley or her representative possession of the premises described in the affidavit, being the same premises described in the deed and contract above set forth, and to remove Mrs. W. H. Hoover with her property therefrom. On the same date, the deputy sheriff served written notice of the existence of the dispossessory warrant on Mrs. Hoover, and directed her to vacate within three days, or else she would be evicted under the warrant.
Mrs. Hoover filed her petition in Fulton superior court, naming Mrs. Mobley, Dolvin Realty Company, P. E. Mitchell, and the sheriff and deputy sheriff of Henry County as defendants, above referred as exhibits copies of all of the documents above referred to. The petition prayed that the contract and deed be declared void, and canceled; that the sheriff and the deputy sheriff be enjoined from executing the dispossessory warrant; that the other defendants be enjoined from interfering with the petitioner's possession of the land, and from trespassing thereon; and for general relief.
The petition seeks cancellation because of fraud, duress, and coercion. The particular allegations by which it is sought to show fraud and duress are as follows: "8. Petitioner shows that on or about October 23, 1943, P. E. Mitchell, one of the defendants above named, came to petitioner's home and asked for the deed to property, and she handed to him the deed and a plat or blueprint showing said property; that thereafter said Mitchell, who was then in his car, said to petitioner that she was `to sign here' on a paper he had, and when she said she hadn't read it, said Mitchell replied that it was just to release the farm so he could sell it; that he did not hand it to her but held the paper on his knee while he directed her to sign as stated. That petitioner saw at the time but the one side of the paper, that being whereon she signed, and said Mitchell did not talk with, i. e., inform petitioner as to any price at which he proposed to sell the place either before or at the time of having her sign as stated. That immediately thereafter said Mitchell went away. 9. That on or about October 26, 1943, said Mitchell came to petitioner's home again, in the absence of her husband; that Mrs. Ethel A. Mobley, one of the defendants above named, her husband, and a woman whom petitioner understood to be a relative of said Mobley, were already there, several of petitioner's sons being also present. That said Mitchell stated to petitioner that he had three papers for her to sign, that he had 'phoned her husband, and that he had said, Mitchell claimed, for her to sign the papers which he exhibited to her, being purported sales contract in duplicate and purported deed. That petitioner told Mitchell she did not want to sell her property for $1500, the amount named in said purported contract. He stated that he had brought the papers down, and he intended to make the sale. That said Mitchell insisted to such an extent and at great length, that petitioner became extremely nervous, he having arrived about 4 p. m. and remained until 7 p. m., or later. That, after having been there some time, said Mitchell said to petitioner that she would either have to sign the papers or she would have to go to jail. That this greatly frightened and upset petitioner, and after said Mitchell had gotten her into the aforesaid condition after hours of insisting, misrepresentations, threatening, and intimidation as aforesaid, petitioner, still protesting that she was signing against her will, signed three papers which said Mitchell put before her and purporting to be sales contract in duplicate and deed. Petitioner shows that no money or other consideration was paid to her at the time of the signing of said papers. . . 16. Petitioner shows that by reason of the aforesaid threats, intimidation, coercion, and duress practiced upon her by said defendant Mitchell, she signed said deed, a copy of which is hereto attached, marked Exhibit C and made a part hereof, and by reason thereof she signed also said purported sales contract, copy of which is hereto attached marked Exhibit D and made a part hereof; that said deed, sales contract, and the paper referred to in paragraph 8 above, which said Mitchell procured from petitioner as aforesaid, should be declared null and void, and be delivered up and canceled."
The petition alleges that the petitioner is not the tenant of the defendant Mobley, and was not such at the time the dispossessory warrant issued; that the relationship of landlord and tenant has never existed between them; that the petitioner is the owner, and is in possession of the premises described, and has been the owner since May 23, 1934; that the property is reasonably worth $2500; and that the consideration for the deed ($1500) is grossly inadequate.
The petition was amended a number of times, amplifying the allegations already made. The defendants Mobley, Mitchell, and Dolvin Realty Company filed general demurrers to the petition as amended; and on January 25, 1944, a judgment was entered sustaining the demurrers on the ground that the allegations were insufficient to show duress, and overruling the remainder of the general and special demurrers, and allowing fifteen days in which to amend, with a recital that in default of such amendment the motion to dismiss would be sustained. To this order exceptions pendente lite were filed. On the same day the plaintiff filed a written motion to reconsider the judgment on the demurrers. This motion was granted on February 9, 1944, and a rehearing was set for February 16, 1944. On February 25, 1944, after the rehearing, a judgment was rendered adhering to the first judgment, and the petition was dismissed. The petitioner excepted, assigning error on these judgments.
(After stating the foregoing facts.) It is obvious that any right to any of the relief prayed for is dependent upon the deed dated October 26, 1943, and signed by the petitioner. If that deed is valid, then the petition shows that the petitioner has no interest in or title to the land in controversy, and, hence, is entitled to no relief relating thereto. The deed is properly executed, recites a consideration, and is valid on its face. To show its invalidity, the petition sets forth what it is contended constitutes duress as a result of which the deed was executed. "Duress is coercion constraining action or inaction contrary to the victim's will." 17 C. J. S. 525, § 168. See also the Code, §§ 20-503, 96-201, and 96-209. It is not sufficient to allege that the deed was executed because of an empty threat made by another. It is necessary to show that at the time there was an apparent intention and ability to execute the threat. Although opposing counsel strongly debate the question whether the decision in Bond v. Kidd, 1 Ga. App. 798, 801 ( 57 S.E. 944), is sound, we think it is a correct statement of the rule and should be applied and followed here, for the two fold reason — first, that it is a sound statement of the law; and, second, that it has been approved repeatedly by the Supreme Court. It is there said: "It has been frequently held that mere threats of criminal prosecution, where neither warrant has been issued nor proceedings commenced, do not constitute duress. . . The threatened prosecution must be for an act either criminal or which the party threatened thought was criminal. A mere empty threat does not amount to duress." This same language is used in Patrick v. Wood, 162 Ga. 137 ( 133 S.E. 870). To the same effect, see Graham v. Marks, 98 Ga. 67 ( 25 S.E. 931); Williams v. Stewart, 115 Ga. 864 ( 42 S.E. 256); Mallory v. Royston Bank, 135 Ga. 702 ( 70 S.E. 586); Candler v. Byfield, 160 Ga. 732 ( 129 S.E. 57); King v. Lewis, 188 Ga. 594 ( 4 S.E.2d 464). The entire allegations of the quoted paragraphs of the petition in which it is sought to show duress may be fairly summarized as follows: The petitioner was a woman, and while she was at home and her husband absent, but with a number of her sons present with the defendants Mitchell and Mobley, and two other persons, Mitchell talked to her and urged her to execute the deed, reported that her husband had said that she should execute it, remained there for approximately three hours, from 4 o'clock to 7 o'clock in the afternoon, and during the discussion told her that she would have to sign the deed or go to jail. He told her that he had gone there for the purpose of obtaining the deed; and from exhaustion, due to this long conversation, she became nervous and frightened, and because of the statement that she would have to go to jail she signed the deed, saying that she did not want to sign it, and that the land was worth more than the $1500 consideration. Tested by the law as declared in the decisions cited above, such allegations fall short of showing duress or grounds upon which a cancellation of the deed can legally be made. Without here entering into an extended discussion of the extreme disfavor with which the law looks upon fraud in all of its phases, suffice it to say that when fraud or duress is shown to have been the cause for the execution of a deed or other instrument, equity will in a proper case order its cancellation, but this law does not means that persons may be relieved of their own solemn contracts and engagements upon allegations that fall short of showing duress and fraud as defined by the law. The petition shows no apparent ability or present intention upon the part of Mitchell to have her incarcerated. She is content with the allegations that he said that she would go to jail if she failed to sign the deed. It does not appear that Mitchell stated any grounds upon which she would be prosecuted, nor is it otherwise made to appear that his statement was sufficient to arouse the fear of any one of being imprisoned. Therefore the allegations are insufficient to authorize a cancellation of the deed, and the petitioner is not entitled to any of the relief prayed for. Accordingly, it was not error to sustain the demurrer and dismiss the petition.
Judgment affirmed. All the Justices concur.
ON MOTION FOR REHEARING.
The petition, together with the numerous amendments, specified duress and intimidation as the sole ground on which cancellation of the deed was sought. It was dismissed on general demurrer, and in affirming the judgment of dismissal we gave consideration only to the ground on which cancellation was sought. Briefs of counsel in support of the motion for rehearing urge for the first time that the petition should not have been dismissed, (1) because the official witness to the deed was not in fact present when the same was signed by the grantor, and (2) because both of the witnesses to the deed were pecuniarily interested in the transaction, and, hence, were disqualified as witnesses. While neither of these facts was made a ground for cancellation in the petition, and therefore, was not considered in our opinion, yet, in view of the earnestness with which they are now urged, we think it well to state that had they been properly pleaded as grounds upon which cancellation of the deed was prayed, they would not have constituted legal grounds for such relief. While it is declared in the Code, § 29-101, that "A deed to land must be in writing, signed by the maker, [and] attested by at least two witnesses," under repeated rulings of this court this is a statement of a requirement of law necessary to be met in order to entitle a deed to record. It does not declare that, unless so attested, a deed is void, nor does the language of the statute have such meaning. In the absence of any witness whatever, a deed signed by the grantor is binding between the parties thereto. In Johnson v. Jones, 87 Ga. 85 (2) ( 13 S.E. 261), It is ruled: "A deed without witnesses is legal and binding between the parties thereto and those claiming under them as mere volunteers." The first headnote in Howard v. Russell, 104 Ga. 230 ( 30 S.E. 802), is: "A deed to land, though not attested as required by law, conveys the title as against the grantor and his heirs." To the same effect see also Downs v. Yonge, 17 Ga. 295; Gardner v. Moore, 51 Ga. 268; Lowe v. Allen, 68 Ga. 225; Munroe v. Baldwin, 145 Ga. 215 ( 88 S.E. 947); Citizens Bank v. Taylor, 169 Ga. 203, 207 ( 149 S.E. 861, 67 A.L.R. 355). The penalty for failure to execute the deed in the manner prescribed by the statute is a refusal to admit the same to record.
Counsel argue that pecuniary interest disqualifies one from witnessing a deed, and cites in support of this argument Betts-Evans Trading Co. v. Bass, 2 Ga. App. 718 ( 59 S.E. 8), Nichols v. Hampton, 46 Ga. 253, and Southern Iron c. Co. v. Voyles, 138 Ga. 258 ( 75 S.E. 248, 41 L.R.A. (N.S.) 375, Ann. Cas. 1913d 369), all of which support the argument and are authority to the effect only that such an interested witness is disqualified because of his interest. The contention is sound, but it constitutes no valid legal attack upon the deed here involved, even though it be conceded that both witnesses were pecuniarily interested in the transaction.
Rehearing denied.