Mitchell v. Holden , 58 Ga. App. 712 ( 1938 )

Broyles, C. J.

The motion of the defendant in error to dismiss the writ of error is without merit, and is denied.

'“The general rule is that the payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence, and no artifice, deception, or other fraudulent practice used by the other party, are deemed voluntary, and can not be recovered, unless made under an urgent and immediate necessity, or to release person or property from detention, or to prevent an immediate seizure of person or property.” Strachan Shipping Co. v. Savannah, 168 Ga. 309 (3), 314 (147 S. E. 555).

“Except where otherwise provided by statute, a party can not, by direct action or by way of set-off or counterclaim, recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed.” 30 Cyc. 1298, VIII, A, 1.; Strachan case, supra.

Where one is sued and files a plea of set-off, in which he attempts to set off against the debt sued on certain claims assigned to him, and where the plea fails to state that the alleged assignment was in writing, the plea is subject to be dismissed on demurrer. Thornton v. Reeve, 41 Ga. App. 446 (153 S. E. 436), and cit.

Applying the foregoing rulings to the facts of the instant case, the plea of set-off was properly stricken on general demurrer; and the verdict and judgment in favor of the plaintiff were hot contrary to law.

Judgment affirmed.

MacIntyre and Guerry, JJ., conciur.