Central Bank v. Copeland

Cochran, J., delivered the opinion of this court. The proceedings upon which this appeal was taken, were had upon a bill filed to obtain a decree for the sale of property belonging to Mary Ann E. Copeland, described in the mortgage executed by her husband, George W. Copeland, and herself, to secure the payment of an antecedent debt due from him to McPherson and Thomas. The answer of Mrs. Cope ³¹⁷ land, although admitting the execution and acknowledgment of the mortgage, puts its validity in issue, on the ground, that she was forced to execute and acknowledge it by threats and menaces, which, from feeble health and a shattered nervous system, she was unable to resist; and the leading question presented is, whether the mortgage is voidable by her on the ground stated in the answer? The conveyance from McPherson and Thomas to the Central Bank, through which it claims in this case, if effective for any purpose, can only operate as an assignment of an interest in the mortgage executed to them, and under that instrument, considered as an assignment, the bank, as an assignee, will not be permitted to claim in any other or stronger right than that of the assignors.

In this view of the existing relationship of the appellants, the question presented may be determined as one raised between the immediate parties to the mortgage. The element of obligation upon which a contract may be enforced, springs primarily from the unrestrained mutual assent of the contracting parties, and where the assent of one to a contract is constrained and involuntary, he will not be held obligated or bound by it. A contract, the execution of which is induced by fraud, is void, and a stronger character cannot reasonably be assigned to one, the execution of which is obtained by duress. Artifice and force differ only as modes of obtaining the assent of a contracting party, and a contract to which one assents through imposition or overpowering intimidation, will be declared void, on an appeal to either a court of law or equity to enforce it.

The question, whether one exe - cutes a contract or deed with a mind and will sufficiently free to make the act binding, is often difficult to determine, but for that purpose a court of equity, unrestrained by the more technical rules which govern courts of law in that respect, will consider all the circumstances from which rational inferences may be drawn, and wilUrefuse its aid against one who, although apparently acting voluntarily, yet, m fact, appears to have executed a contract, with a mind so subdued by harshness, ³¹⁸ cruelty, extreme distress, or apprehensions short of legal duress, as to overpower and control the will. 16 Ves., 156. 1 Ves. Jr., 22. 9 Penn., 14 . 27 Penn., 22 . 11 Mass., 368 . 13 Mass., 371 . 1 Story Eq., secs. 239, 240, 243. As the validity of this mortgage must, therefore, depend on the fact of its execution and acknowledgment by Mrs. Copeland, as her own free and voluntary act, we proceed to consider the evidence contained in the record, by which its character in that respect may be determined. In our opinion the testimony of Hays, taken to contradict or impeach his certificate of Mrs. Copeland’s acknowledgment of the mortgage, was not admissible.

That the statements contained in the certificate, under the circumstances, and as between the parties in the case, were open to contradiction by proper and competent proof, cannot be doubted, but it does not follow, that a public officer, after the performance of an act required by law, should be permitted to defeat its effect by impeaching his official certificate of the manner in which he performed it. From considerations of public policy, if from no .other, he must be held an incompetent witness for such a purpose. Harkins vs. Forsyth, 11 Leigh., 294. The objection taken to the admission of the other witnesses, at least so far as their testimony is of declarations and acts leading to, and inducing the execution of the mortgage, we think cannot be maintained, and that, as such declarations and acts must be considered as a part of the res gestee, their testimony, to that extent, was properly admitted.

From the portion of the evidence