Graves v. O'Brien

Citations

• 111 Kan. 320
• 207 P. 198
• 1922 Kan. LEXIS 238

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Written Instruments — Conveyances Obtained by Duress and Threats — Evidence Sustains Charge. The plaintiff brought an action to set aside a conveyance, to cancel certain notes and a mortgage, also another agreement, upon the ground that he had been put in fear and compelled to execute them under duress excited by threats-of prosecution and imprisonment for an alleged offense, when in fact the act charged against him was not an offense. The relief asked was granted and it is held that the evidence is sufficient to show the fraud of the defendants participating in the transaction, that duress was established- and that the plaintiff was entitled to the relief given.</p> <p>2. Same — Parties Not in Pari Delicto. Held, further, that plaintiff was not barred from the relief asked on the ground that the parties were equally at fault in the illegal agreements, nor because he yielded to the demands of the defendants.</p> <p>3. Same — Duress Established. A case of duress is made out where one party is compelled to make agreements through fear of prosecution and imprisonment excited by the threats of other parties to the agreements.</p> <p>4. Same — Offer of Restoration by Plaintiff Unnecessary. Under the circumstances shown to have existed the plaintiff could not be denied relief on the ground that he had not offered to restore that which he had re'ceived in the fraudulent transaction, and in fact nothing of^ value had been so received.</p> <p>5. Same — Wife of Plaintiff Not a Necessary Party. The wife of the plaintiff was not a necessary party in the action brought.</p> <p>6. Same. Bank Responsible for Fraud of Its Cashier. The notes and a mortgage were procured to be given through the active fraud of its cashier. As he was acting for the bank, and as the bank received and appropriated the fruits of the fraudulent transaction, it is responsible for the fraud.</p> <p>7. Same — Bank Not a Holder of Note and Mortgage in Due Co