#### J. B. SMITHWICK v. W. H. WHITLEY.

(Filed 20 April, 1910.)

plaintiff’s appeal.

Usurious Contracts — Voluntary Payment.

An action to recover money alleged to be paid under duress, will not lie, when it appears that plaintiff in possession of the land under a contract to purchase at a certain price, had given *370his various notes to defendant, who withheld the deed; that defendant, who denies the validity of the contract, forced him, after he had remained on the lands and improved them, to pay a higher price in order to obtain his deed. The payment of the difference by plaintiff was voluntary in order to get an adjustment of the dispute without litigation.

Appeal from Ward, J., at December Term, 1909, of Beau-eobt.

Civil actio'll to recover $280 alleged to have been paid under duress. The facts are as follows:

On 3 December, 1900, plaintiff made a contract with defendants to purchase a piece of land containing 13 82-100 acres, for $483.72, and to give in payment ten notes of $46.99 each, one to be paid annually, secured by mortgage on land, and the balance in cash. The plaintiff alleges and proves that said notes and mortgage were delivered to defendant, and the bargain consummated at that time (the mortgage and notes being executed about a month thereafter and delivered to defendant, and the deed bearing date 31 December, 1900; with acknowledgment of grantor on 15 January, 1901, being left with defendant to be registered). The plaintiff went into' possession of the land and began clearing it. Defendant denies that the deal was consummated, or that the notes and mortgage were left with him. Deed had not been turned over to plaintiff. Some time in February, 1904, defendant notified plaintiff that his deal on the swamp land was off. On 4 March, 1904, plaintiff went to see defendant, and defendant said, if he (plaintiff) would make it $50 an acre, he would give him (plaintiff) the deed. The price agreed on in December, 1900, and the consideration named in the deed, having been $35 per acre. After considerable talk, plaintiff agreed to pay the price demanded rather than lose the land he had been working on for three years. He had ditched it, fenced it, and got it in tillable condition. He paid $275, the amount demanded, and defendant gave him his deed dated 31 December, 1900.

Upon an intimation by the court as to the charge, plaintiff subnntted to a nonsuit and appealed.

Ward & Grimes for plaintiff.

Small, MacLean & McMullan for defendant.

BeowN, J.

We agree with his Honor, that the cause of action, npon plaintiff’s own evidence, is barred by the statute of limitations, assuming that a cause of action had been made out. But no cause of action for duress is made out in the evidence or stated in the complaint.

*371Tbe payment of tbe $280 in order to get a deed for tbe' land was yoluntary. Tbe plaintiff bad a right to stand on bis legal rights in tbe land, if be bad any, and assert bis equities in tbe courts of tbe State.

Duress exists where one, by tbe unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of tbe exercise of free will. 14 Oyc., 1123, and cases cited. Bank v. Logan, 99 Ga., 291; Mathews v. Smith, 67 N. C., 374; Miller v. Miller, 68 Pa. St., 486.

Duress is commonly said to be of tbe person where it is manifested by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. Or it may be of tbe goods, when one is obliged to submit to- an illegal exaction in order to obtain possession of bis goods and chattels from one who has wrongfully taken them into possession. Astley v. Reynolds, 2 Strange, 915, is a leading flase on this, subject. Hackley v. Hackley, 45 Mich., 573.

There is neither duress of tbe person nor goods there. Tbe plaintiff was in actual possession of tbe land and tbe defendant denied bis title, claiming that tbe “deal bad not been consummated.” In order to get a deed, plaintiff acceded to defendant’s demand and paid tbe advanced price. Upon all tbe authorities it was a voluntary payment, an adjustment of tbe dispute.

No error.