This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Duress of property need not always involve detention of personalty, however. If the unlawful acts of one person cast a cloud on the title of another to realty, a payment made to remove such cloud may be made under duress.1 Thus a payment made to prevent a threatened sale for taxes which would cast a cloud on the title to realty,2 or a payment made to clear title to realty from a pretended mechanic's lien, so as to raise a new loan to take up an overdue mortgage and other pressing claims,3 where the party making such payment had no other means of raising money than by mortgaging such realty, or payment extorted by threatening to sell realty under a power of sale contained in a mortgage,4 or payment of an amount over and above the true amount of a mortgage debt,5 or an unlawful payment of attorney fees exacted as a condition precedent to redemption,6
5 Taylor v. Hall, 71 Tex. 213; 9 S. W. 141.
6Vick v. Shinn, 49 Ark. 70; 4 Am. St. Rep. 26; 4 S. W. 60.
1 American Baptist Missionary Union v. Hastings. 67 Minn. 303; 69 N. W. 1078; Joannin v. Ogilvie, 49 Minn. 564; 32 Am. St. Rep. 581: 16 L. R. A. 376; 52 N. W. 217; Shane v. St. Paul. 26 Minn. 543; 6 N. W. 349; Poth v. New York, 151 N. Y. 16; 45 N. E. 372; Bowns v. May. 120 N. Y. 357; 24 N. E. 947; Montgomery v. Cowlitz, 14 Wash. 230;
44 Pac. 259.
2 See Sec. 811.
3 Joannin v. Ogilvie, 49 Minn. 564; 32 Am. St. Rep. 581; 16 L. R. A. 376; 52 N. W. 217.
4 Close v. Phipps. 7 Man. & G. 586; MeMurtrie v. Keenan, 109 Mass. 185.
5 Cazenove v. Cutler, 4 Met. (Mass.) 246. 6 Klein v. Bayer. 81 Mich. 233;
45 N. W. 991. Contra, where the may be recovered. But payment of a judgment while proceedings in error were pending because the judgment was a lien on the realty of the judgment debtor, who was in financial distress and could not raise money except by a loan on such realty and such loan could be obtained only by paying such judgment has been held to be a voluntary payment.7 So where A gave B a mortgage in the form of a deed to secure his debt to B and B then refused to recognize A's rights or consent to A's selling his rights in such realty unless paid a large sum of money over and above A's indebtedness to B, and threatened prolonged litigation if A did not make such payment, and A had no other way of paying his debt except by the sale of such realty, it was held that A paid such additional sum under duress and could recover it.8 In all these cases no opportunity for a judicial hearing was given before the title was apparently encumbered. Wrongful acts which do not cast a cloud on the title to realty do not amount to duress of realty.9 Thus a threatened sale for illegal taxes, where the purchaser has the burden of proving every step necessary to make out a valid sale,10 or a threatened sale of the land of one person on an execution issued against another,11 do not cast a cloud on the title and hence payment by reason thereof is not made under duress.