Brown v. Pierce
ERROR to the Supreme Court of Nebraska Territory.
Brown filed his bill in September, 1860, in the court below against three persons, Pierce, Morton, and Weston, alleging that in the spring of 1857, he settled upon and improved a tract of land near Omaha; that he erected a house on the tract and continued to occupy it until August 10th, 1857, when he entered the tract under the pre-emption laws of the United States; that Pierce claimed the land by virtue of the laws of an organization known as the Omaha Claim Club; that this organization, consisting of very numerous armed men, sought to, and did to a great extent, control the disposition of the public lands in the vicinity of Omaha in 1857, in defiance of the laws of the United States; that it frequently resorted to personal violence in enforcing its decrees; that the fact was notorious in Omaha, and that he, Brown, was fully advised in the premises; that as soon as he had acquired title to the land, Pierce, together with several other members of the club, came to his house and demanded of him a deed of the land, threatening to take his life by hanging him, or putting him in the Missouri River, if he did not comply with the demand; that the club had posted handbills calling the members together to take action against him; and that knowing all this, and in great fear of his life, he did, on the 10th of August, 1857, convey the land by deed to Pierce; that he, Brown, received no consideration whatever, for the conveyance; that from the date of his settlement upon said land, until the time of filing the bill, he had continued to keep possession either actually or constructively; that Morton claimed an interest in the premises by virtue of a judgment lien, and that Weston also made some claim.
The prayer was, that the deed might be declared void, and Pierce be decreed to reconvey, and for general relief.
The bill was taken pro confesso as to all the defendants, except Morton, who answered.
This answer, stating that he, Morton, was not a resident of the Territory, and had no knowledge or information about the facts alleged in the bill, but on the contrary was an utter stranger to them, and therefore could not answer as to any belief concerning them,-set forth that on the 28th August, 1857, Pierce was 'the owner and in possession of, and otherwise well seized and entitled to, as of a good and indefeasible estate of inheritance in fee simple,' the tract in controversy; that being so, and representing himself to be so, and having need of money in business, he applied to him, Morton, to borrow the same, and that he, Morton, being induced by reason of the representation, and also by the possession, and believing that he, Pierce, was the owner, he was thereby induced to lend, and did lend to him $6000, on the personal security of him, Pierce; that before the filing of this bill by Brown, he, Morton, had obtained judgment against Pierce for $3400, part of the loan yet unpaid; that this judgment was a lien on the lands; and that as he, Morton, was informed and believed, if he could not obtain his money from this land, he would be wholly defrauded out of it.
The answer further stated that the defendant was informed and believed that Brown, the complainant, entered upon the lands as the tenant of Pierce, and that the suit by the complainant was being prosecuted in violation of the just rights of Pierce, as well as of him, Morton.
There was no replication. Proofs were taken by the complainant, and they showed to the entire satisfaction of the court that all the matters alleged in the bill and not denied by the auswers, were true.  There thus seemed no doubt as to the truth of all the facts set out in the bill.
The court below declared Brown's deed void, and decreed a reconveyance from Pierce to him, and that neither Morton nor Weston had any lien on the premises. Morton now brought the case here for review.
Messrs. Carlisle and Woolworth, for the appellant, Morton.
1. No replication having been filed, the cause, as between Brown and Morton, was heard on bill and answer, and it comes here for hearing in the same way. The answer is in such a case to be taken as true. The bill does not state a title in the complainant otherwise than vaguely. The answer avers a good title in Pierce when Morton lent his money.
2. No sufficient case of duress is presented. The club may have been called together, but there is no evidence that they ever came together or would have come together. Conceding, for argument's sake only, that the deed was given under what the law deems duress, still the answer shows a valid lien, perfected by judgment. All the proceedings were had before this bill was filed, and in entire ignorance, on Morton's part, of Brown's claims. Morton is in the same position as a bon a fide purchaser, without notice, would be. 
3. Upon its own circumstances, Morton's lien is entitled to protection against Brown's equities. The deed was made August 10th, 1857. The first word of complaint was uttered when the bill was filed, which was September 7th, 1860, three years afterwards. During this period Morton lent his money to Pierce, upon the credit which this land gave him, sued out and levied his attachment, prosecuted his suit, and recovered his judgment; and during all this time, and during all these proceedings, he was kept in entire ignorance of Brown's claims. No reason is shown for this silence and delay. The deed, never more than voidable, must be deemed affirmed by this silence. 
Messrs. Redick and Briggs, contra:
1. The title alleged by the answer to have been in Pierce, must, on the facts and the loose allegations of the answer, be assumed to be the one derived from the deed sought to be set aside.
2. Sufficient duress is shown. Brown was under no obligation to wait, before he made the deed, until he had been actually thrown into the river and had come up for the last time; or, if hanging had been the mode of punishment adopted, should he have waited until the rope began to draw about his neck. He did as any prudent man of ordinary courage would have done under the circumstances.
3. The fact that the legal title was standing in Pierce's name at the time of the judgment is unimportant. The general lien of a judgment creditor upon the lands of his debtor, is subject to all equities which existed against the lands in favor of third persons, at the time of the recovery of the judgment.  Morton claims only as a judgment creditor, and his lien, if any, is general, not specific. It is not proved that he cannot make the amount of his judgment out of other property of the debtor, as it is not shown that execution has been issued and returned unsatisfied. It was his duty to first exhaust his legal remedies.
Morton lent his money to Pierce in August, 1857, about the time the deed was by Pierce coerced from Brown, and the case shows that Brown was then in the actual possession of the land and has been ever since. Morton stands charged with notice.
Reply: As to the notice. The answer (which, as we have said, being without replication, is to be taken as true), says that Brown entered as Pierce's tenant, and was prosecuting the suit in fraud of his rights. The relation was one then of landlord and tenant.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 See infra, p. 213.
^2 Carter v. Champion, 8 Connecticut, 549; Kent v. Plummer, 7 Maine, 464; Porter v. Bank of Rutland, 19 Vermont, 410; Jones v. Jones, 16 Illinois, 118; Martin v. Dryden, 1 Gilman, 188.
^3 Doolittle v. McCullough, 7 Ohio State, 299, 307.
^4 Buchan v. Sumner, 2 Barbour's Ch. 165; Ells v. Tousley, 1 Paige, 280; White v. Carpenter, 2 Id. 217; Keirsted v. Avery, 4 Id. 9.