Opinion
23755.
ARGUED OCTOBER 11, 1966.
DECIDED NOVEMBER 10, 1966.
Cancellation. Clarke Superior Court. Before Judge Barrow.
Atkins Atkins, Ben S. Atkins, for appellant.
Fortson, Bentley Griffin, Edwin Fortson, for appellee.
The allegations of threats of criminal prosecution were insufficient to show such duress as would render voidable the note and deed to secure debt executed by the appellant.
ARGUED OCTOBER 11, 1966 — DECIDED NOVEMBER 10, 1966.
The appeal in this case is from an order sustaining an oral motion to dismiss a petition, as amended, by Robert L. Yearwood against the National Bank of Athens, as guardian of the property of Caroline V. Becker. The petition sought the cancellation of a note and deed to secure debt, and the enjoining of a foreclosure sale under the deed.
The petition as originally filed alleged that: The defendant is advertising for sale property conveyed in a deed to secure debt dated October 31, 1964, signed by the petitioner. On the date the deed was signed, the petitioner was called to the office of Mr. John E. Griffin, an attorney, not knowing for what purpose he was called. Mr. Griffin, acting for and in behalf of the National Bank of Athens, as guardian of Mrs. Becker, stated to the petitioner "that something had to be done about the affairs of Mrs. Becker, and he had a security deed already drawn, and told plaintiff to sign it or else the case would be submitted to the grand jury of Clarke County, Georgia," and that the petitioner "would probably have to serve time in the penitentiary" for taking and appropriating to his own use certain money and stocks which Mrs. Becker had previously transferred to him, and which had been disposed of by him. While the petitioner knew that the transaction between him and Mrs. Becker relative to the money and stocks was legitimate, and that Mrs. Becker was of sound mind and acted upon her own initiative and without any inducement from the petitioner, "being totally unfamiliar with law, he was illegally induced to sign said deed because of the statements and declarations of Mr. Griffin, and in fear of criminal prosecution." The petitioner "was induced to sign said security deed without any time or opportunity to consider the validity of said deed and said threatened criminal prosecution, and because thereof said deed is void." In February, 1965, the petitioner was again called to the office of Mr. Griffin "where he was induced under the same statements made by Mr. Griffin, to execute and deliver to him two notes representing the sum of approximately $72,000, and which, it is now contended in the aforesaid advertisement for sale of his property that the said security deed now sought to be foreclosed was given to secure, when the said deed was given and dated on October 31, 1964."
At a pre-trial hearing the trial judge sustained an oral motion to dismiss the petition, with leave to amend. The amendment did not strike any allegation of the original petition, but added new paragraphs numbered from 1 through 7. In this amendment some of the allegations of the original petition are again alleged, with variations and amplifications as follows: On the date that the petitioner was called to Mr. Griffin's office, Mr. Griffin told him that something had to be done about the Becker matter, and Mr. Griffin figured that the petitioner owed the Becker estate about $72,000. The petitioner told Mr. Griffin that he did not owe Mrs. Becker anything, and Mr. Griffin said that the petitioner had received stock of the face value of about $43,000, which was worth about $57,000 on the market that day. Mr. Griffin told the petitioner that the difference was for some checks and bonds which he had cashed. The petitioner denied owing the money, and Mr. Griffin told the petitioner that he had proof that the petitioner got the money. The petitioner was then told by Mr. Griffin that he had prepared a paper he wanted the petitioner to sign, admitting that he owed the money. The petitioner then asked Mr. Griffin, who had formerly represented the petitioner, whether he was representing the petitioner or the bank, and Mr. Griffin told him that he was representing the bank, and if the petitioner did not want to serve time, he had better sign the papers. The petitioner asked if he could seek the advice of another lawyer, and Mr. Griffin denied him this right, and told him that the grand jury was right then in session and if the petitioner did not sign the papers "right now," Mr. Griffin would present the matter to the grand jury, have the petitioner indicted and sent to the penitentiary. Knowing that Mr. Griffin was an attorney with superior knowledge of the laws, the petitioner signed the papers admitting that he owed money, which he then denied, and now denies, owing.
In his enumeration of errors the appellant contends that the judge erred in (1) declining to issue a temporary restraining order on the basis of the verified petition; (2) declining to hear evidence on the prayer for a temporary restraining order; and (3) dismissing the petition, as amended, on the oral motion of the defendant asserting that the amended petition set forth no cause of action in law or in equity. Each of these three contentions depends upon the sole question of whether the threats alleged to have been made by counsel for the defendant National Bank of Athens, as guardian of the property of Caroline V. Becker, constituted duress.
Since the appellant failed to strike any of the allegations of the original petition, any ambiguities or conflicts between the allegations of the petition and the amendment must be construed most strongly against him. Rothberg v. Peachtree Investments, Inc., 220 Ga. 776, 779 ( 142 S.E.2d 264). The amendment must be considered in the light of the original petition as being a repetition of the original threats that unless he signed the acknowledgment of the debt and executed the deed, "the case would be submitted to the grand jury of Clarke County, Georgia," and he "would probably have to serve time in the penitentiary," with certain amplifications, such as the allegations that the execution was required without an opportunity to confer with his attorney, and that the attorney for the bank demanded that the papers be signed "right now." Code § 20-503 provides: "The free assent of the parties being essential to a valid contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will render the contract voidable at the instance of the injured party. Legal imprisonment, if not used for illegal purposes, is not duress."
In Hoover v. Mobley, 198 Ga. 68, 71 ( 31 S.E.2d 9), Mr. Justice Duckworth (now Chief Justice), speaking for the court, held: "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, when 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)."
It can not be consistently contended by the appellant that the alleged threats subverted his will to that of the attorney for the defendant bank where he alleges that he did not owe the debt, and was afforded a period of approximately four months from the time he acknowledged the debt and executed the deed to secure debt to confer with his personal counsel before executing the note covering the consideration in the deed. See Augusta Motor Sales Co. v. King, 36 Ga. App. 541 ( 137 S.E. 102).
After considering the petition as amended, it is the view of this court that the alleged threats employed by counsel for the defendant bank do not constitute duress as defined by our statutes, and that the trial judge properly denied the temporary restraining order and dismissed the petition as amended.
Judgment affirmed. All the Justices concur.