nection, see Sherman V. Sherman (1892) 47 N. Y. S. R. 404, 20 N. Y. Supp. 414, where the court, in holding that a marriage will not be annulled for duress unless it is shown that the other contracting party caused, or at least knew of, the duress, recognized the general rule that no contract can be annulled for duress unless it appears that the obligee occasioned the duress or knowingly used or availed himself of it as a means of procuring such contract.

And again, in Central Bank v. Copeland (1862) 18 Md. 305, 81 Am. Dec. 597, where a wife executed a mortgage while under duress practised by her husband to secure a debt owed by him, it was held that the fact that the mortgagee took no part in procuring the execution of the mortgage neither strengthened his right to set it up as valid, nor impaired her right to avoid it. This was upon the theory that since the execution was procured by the husband acting in the mortgagee's interest and for his benefit, his acceptance of the mortgage implied an adoption of the husband's agency so that the mortgagee had no right to enforce it free from the infirmity of the duress. It does not appear in this case, however, whether or not the mortgagee had knowledge of the exercise of the coercion by the husband, the opinion merely stating that the mortgagee took no active part.

And in the New York case of Barry v. Equitable Life Assur. Soc. (1875) 59 N. Y. 587, it was held that the assignee of a life insurance policy could not hold the policy as against the assignor where the assignment was made by a woman acting under duress practised by her husband, and this even though the assignee had no knowledge of the duress.

And in Louisiana it has been held, as stated by the court in the second headnote to Bryant v. Levy (1900) 52 La. Ann. 1649, 28 So. 191, that duress will vitiate and invalidate a contract, although the obligee did not bring the fear to bear and was ignorant of it. In this case the duress was exercised by a labor association, and the obligor had to execute the contract or face

inevitable and complete financial ruin. In connection with this ruling, see La. Civ. Code, arts. 1851, 1852.

So in Minnesota, where the statutes provide that "the acknowledgment of the wife shall be taken separately, apart from her husband," it has been held that an acknowledgment of a mortgage executed by a wife while under duress previously practised by her husband, and in his presence, invalidated the mortgage even as to the mortgagee, who did not know of the duress or of the presence of the husband at the time of the taking of the acknowledgment. Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341. The court said that the fact that the mortgagee was entirely ignorant and innocent as regards the duress "was not important," and further that "he had no right to be ignorant of the manner in which the mortgage was executed and acknowledged; it ran to him; he was not obliged to take it or advance money on it; if he saw fit to do so without making prudent inquiry, it was his own misfortune."

And under constitutional provisions and statutes requiring the consent of both the husband and the wife to a conveyance or encumbrance of their homestead, it has been held that the execution by a married woman of a deed or mortgage of homestead property while under duress is not voluntary within the meaning of the Homestead Law, and, therefore, that such an instrument is invalid even as to a grantee or mortgagee who had no knowledge of, and did not participate in, the duress. Anderson v. Anderson (1872) 9 Kan. 112, holding that the good faith of the purchaser cannot be considered in determining the validity of a deed executed under such circumstances. And see Berry v. Berry (1897) 57 Kan. 691, 57 Am. St. Rep. 351, 47 Pac. 837, wherein it was said that in such a case the instrument does not rise to the rank of a mortgage, and is absolutely void even as against a bona fide holder. And see also First Nat. Bank v. Bryan (1883) 62 Iowa, 42, 17 N. W. 165.

It also has been held that a marriage may be annulled at the suit of the hus

band on the ground that it was procured through duress of friends and relatives of the wife, although she herself was guilty of no duress. Marks v. Crume (1895) 16 Ky. L. Rep. 707, 29 S. W. 436. And see Fowler v. Fowler (1913) 131 La. 1088, 60 So. 694. But compare Shepherd v. Shepherd (1917) 174 Ky. 615, 192 S. W. 658, and Sherman v. Sherman (1892) 47 N. Y. S. R. 404, 20 N. Y. Supp. 414, both of which are set out infra, II. h.

II. Particular contracts.

a. Deeds.

The general rule that the duress of a stranger to a contract does not affect an innocent obligee has been applied to deeds as to the taking of which the grantee acted in entire good faith. Talley v. Robinson (1872) 22 Gratt. (Va.) 888 (grantor mobbed and driven from county). And see Dunfee v. Childs (1906) 59 W. Va. 225, 53 S. E. 209.

And the fact that a married woman signed a deed while under duress practised by her husband does not invalidate the grantee's title where he has no notice or knowledge of such duress. Hughie v. Hammett (1898) 105 Ga. 368, 31 S. E. 109; Fightmaster v. Levi (1891) 13 Ky. L. Rep. 412, 17 S. W. 195; Luke v. Gunnell, 1 Ky. Ops. 258, as set out in Cyc. Supp. (1914-1918) p. 1141, title, Deeds, p. 584, note 82; Johnston v. Wallace (1876) 53 Miss. 331, 24 Am. Rep. 699; Guinn v. Sumpter Valley R. Co. (1912) 63 Or. 368, 127 Pac. 987; Finnegan v. Finnegan (1876) 3 Tenn. Ch. 510.

And the same has been held as to a bond for title executed by a wife while under the influence of duress practised by the husband. Frasure v. McGuire (1902) 23 Ky. L. Rep. 1990, 66 S. W. 1015. An exception to this rule has been made, however, where the conveyance was of the homestead, and the Constitution and statutes provide that both the husband and wife must consent to a conveyance of the homestead. See Anderson v. Anderson (1872) 9 Kan. 112, as set out supra, I.

In North Carolina it is expressly provided by statute that no deed of

conveyance by husband and wife shall be deemed invalid by reason of duress unless the grantee had notice thereof or participated therein. See Davis v. Davis (1907) 146 N. C. 163, 59 S. E. 659, which applies North Carolina Revisal, § 956.

b. Mortgages.

Applying the general rule, it has been held, generally, that duress will not avoid a mortgage where the mortgagee did not participate in such duress. SMITH V. COMMERCIAL BANK (reported herewith) ante, 862, (mortgage executed to a bank by a mortgagor under duress practised by a bank examiner); J. M. Robinson, N. & Co. v. Randall (1912) 147 Ky. 45, 143 S. W. 769 (mortgage executed under duress practised by comortgagor); Fears v. United Loan & Deposit Bank (1916) 172 Ky. 255, 189 S. W. 226 (mortgage executed by wife under duress practised by one threatening to prosecute her husband). But see National Bank v. Cox (1900) 47 App. Div. 53, 62 N. Y. Supp. 314 (motion to withdraw appeal granted in (1901) 165 N. Y. 639, 59 N. E. 1127) as set out supra, I.

Nor can a deed of trust be affected by duress not exercised or participated in by the grantee. Goodrum v. Merchants & Planters Bank (1912) 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511.

So it has been held that the validity of a mortgage executed by a husband and wife is not affected by the fact that the wife's signature was obtained by means of duress practised by the husband, where the mortgagee was not privy thereto, and did not connive at or in any way participate in such duress or have knowledge thereof. United States.-Beals v. Neddo (1880) 1 McCrary, 206, 2 Fed. 41. Alabama.-Rogers v. Adams (1880) 66 Ala. 600.

Leffler Co. (1905) 122 Ga. 670, 50 S. E. 488. Illinois. Ladew v. Paine (1876) 82 Ill. 221.

Indiana.-Line v. Blizzard (1880) 70 Ind. 23; Gardner v. Case (1887) 111 Ind. 494, 13 N. E. 36.

Nebraska.-Bode v. Jussen (1913) 93 Neb. 482, 140 N. W. 768; Jussen v. Bode (1913) 93 Neb. 490, 140 N. W. 771.

New Jersey.-Homœopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103.

In this connection, however, see Central Bank v. Copeland (1862) 18 Md. 305, 81 Am. Dec. 597, and Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, both of which are set out supra, I. And the same has been held as to a deed of trust executed under similar circumstances. Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Marston v. Brittenham (1875) 76 Ill. 611; Shell v. Holston Nat. Bldg. & L. Asso. (1899) - Tenn., 52 S. W. 909.

And the rule is that the validity of a mortgage executed under the influence of duress exercised upon a woman by the various members of her family is in no wise affected by such duress where the mortgagee did not participate therein and in fact had no knowledge thereof. Moog v. Strang (1881) 69 Ala. 98 (mortgage executed for purpose of covering moneys embezzled by mortgagor's son-in-law).

In North Carolina it is expressly provided by statute that no deed of conveyance by husband and wife shall be deemed invalid because its execution was procured by duress, unless the grantee had notice of or participated in such duress; and this statute has been held to apply to mortgages. See Butner v. Blevins (1899) 125 N. C. 585, 34 S. E. 629, applying the North Carolina Act 1899, chap. 389, and holding that the defense of duress cannot be raised in a mortgage-foreclosure proceeding in the absence of allegation and proof that the mortgagee had knowledge of or participated in the duress.

c. Certificates of acknowledgment. A certificate of acknowledgment of a mortgage executed by a married

woman cannot be assailed for duress unless such duress was participated in by the mortgagee or brought to his notice when parting with the consideration. Orendorff v. Suit (1910) 167 Ala. 563, 52 So. 744; Ladew v. Paine (1876) 82 III. 221; Homœopathic Mut. L. Ins. Co. v. Marshall (1880) 32 N. J. Eq. 103; Singer Mfg. Co. v. Rook (1877) 84 Pa. 442, 24 Am. Rep. 204. But see Edgerton v. Jones (1865) 10 Minn. 427, Gil. 341, as set out supra, I.

So it has been held that a certificate of acknowledgment of a deed of trust executed by a married woman is not affected by duress if the grantee was not a party to and had no knowledge of the duress. Donahue v. Mills (1883) 41 Ark. 421; Harper v. McGoogan (1913) 107 Ark. 10, 154 S. W. 187; Springfield Engine & Thresher Co. v. Donovan (1898) 147 Mo. 622, 49 S. W. 500. And this is the rule, although the duress was exercised by the husband of the grantor. Marston v. Brittenham (1875) 76 Ill. 611..

And it has been said that a certificate of acknowledgment executed by a married woman at the instance of her husband cannot be impeached for duress unless it is shown that the grantee had knowledge of the duress. Cahall v. Citizens Mut. Bldg. Asso. (1878) 61 Ala. 232; Johnston v. Wallace (1876) 53 Miss. 331, 24 Am. Rep. 699; Davis v. Davis (1907) 146 N. C. 163, 59 S. E. 659.

d. Notes.

The general rule is that duress, to be available as a defense to a note. must have been exercised by the payee or by someone acting in his behalf or with his knowledge. Mullin v. Leamy (1911) 80 N. J. L. 484, 79 Atl. 257; Travis v. Unkart (1916) 89 N. J. L. 571, 99 Atl. 320, Ann. Cas. 1917C, 1031.

Nor is the validity of a note in the hands of the payee affected by the fact that the maker, a married woman, executed it while under the duress of her husband, if he took the note in ignorance of such duress. Fairbanks v. Snow (1887) 145 Mass. 153, 1 Am. St. Rep. 446, 13 N. E. 596.

And see also supra, II. b.

e. Assignments.

The rule that duress practised by one not a party to a contract does not affect the rights of an innocent party has been held to apply to an assignment of an insurance policy, the execution of which by the beneficiary was the result of duress practised upon her by the husband, the insured, the assignee being entirely innocent. Ely v. Hartford L. Ins. Co. (1908) 128 Ky. 799, 110 S. W. 265.

However, the contrary rule was adopted in the New York case of Barry v. Equitable Life Assur. Soc. (1875) 59 N. Y. 587, which is set out supra, I.

1. Compromises and settlements.

The rule that duress does not apply to a nonparticipating party to a contract has been applied to a settlement of a claim for damages for illegal sales of intoxicating liquor to plaintiff's husband. Boydan v. Haberstumpf (1901) 129 Mich. 137, 88 N. W. 386, holding that evidence of duress by third persons was not admissible to invalidate a receipt unless it was also shown that the defendant had previously authorized the duress or unless there was a subsequent ratification of the acts of such third parties and a taking advantage of them by the defendant.

So, in Missouri it has been held that to avoid a settlement because entered into under duress of third persons, it must appear that the party benefited thereby, or someone with his knowledge and approval, in some manner or by some means constrained or forced the action of the injured party. McCormick v. St. Louis (1901) 166 Mo. 315, 65 S. W. 1038.

g. Payments.

Money paid under duress cannot be recovered back where the duress was not imposed by the payee or by his direction or consent. Brumagim v. Tillinghast (1861) 18 Cal. 265, 79 Am. Dec. 176; Garrison v. Tillinghast (1861) 18 Cal. 404; Baltimore V. Lefferman (1846) 4 Gill (Md.) 425, 45 Am. Dec. 145.

h. Marriages.

The validity of a marriage in so far as the wife is concerned is not affect ed by the fact that the husband was under duress practised by third persons, she being in ignorance of the duress at the time of the marriage. Schwartz v. Schwartz (1889) 29 III. App. 516; Sherman v. Sherman (1892) 47 N. Y. S. R. 404, 20 N. Y. Supp. 414 (holding that the legal principles governing the authority of the court to annul a marriage on the ground of duress of one of the parties thereto are the same as those applied when the annulment of any other contract is requested upon the like ground, and that to be available as a ground for relief it must appear that the duress of the party asking to be relieved was occasioned by the other contracting party or that he knowingly used or availed himself of it).

In Shepherd v. Shepherd (1917) 174 Ky. 615, 192 S. W. 658, the court said that under the general rule of the common law as applied to the duress necessary to avoid a marriage, it was necessary that the duress exercised be by the other party to the marriage, or at least that such party was cognizant of the duress, and knew that the complaining party was acting under fear induced by the duress; but that it was held by the court in Marks v. Crume (1895) 16 Ky. L. Rep. 707, 29 S. W. 436, that fear inspired by the threats and demonstrations of the relatives of the other party to the marriage, which compelled one to consent to a marriage, was sufficient. In the Marks Case, in affirming a decree annulling a marriage, the court said that it did not appear that defendant was guilty of any force or duress, but the proof did conduce to show that friends or relatives of the defendant did by threats and duress compel the plaintiff to enter into the contract. Unless it is implied by the statement that it did not appear that the defendant was guilty of any force or duress, it did not affirmatively appear that she was aware of the duress exerted by her relatives.

In Fowler v. Fowler (1913) 131 La.