West v. Brown , 165 Ga. 187 ( 1927 )

Hines, 'J.

1. Payment of a judgment alleged to be void, where the facts are all known by the defendant, and there is no misplaced confidence, and no artifice, deception, or fraudulent practice used by the other party, is a voluntary payment, and can not be recovered, unless made under an urgent and immediate necessity therefor, or to release person or property, although such payment is made under protest. A mere threat to levy such execution if not paid promptly or at once does not render the payment involuntary. Civil Code (1910), § 4317; Williams v. Stewart, 115 Ga. 864 (42 S. E. 256).

2. Besides, the claim which one of the plaintiffs paid was not an illegal demand. The partial assignment by the holder of his claim against the defendants to another to secure debt, if assented to by the defendants, can be enforced at law by the assignee, and if the same was not assented to by the defendants, the partial assignment could be enforced in equity by the assignee against the assignor and the debtors. Rivers v. Wright, 117 Ga. 81 (43 S. E. 499) ; Brown v. Southern Ry. Co., 140 Ga. 539 (79 S. E. 152) ; Baggerly v. Bainbridge State Bank, 160 Ga. 556 (3-a) (128 S. E. 766) ; King v. Atlantic Coast Line R. Co., 160 Ga. 842 (129 S. E. 86). Being thus a valid demand against the plaintiffs and the. assignor, its deduction from the amount found in favor of the latter was not an extinguishment thereof, and its payment to the latter will be treated as made for the benefit of the assignee of this claim, and the payee will be treated in equity as holding the payment in trust for his assignee, although the payment was made by the plaintiff under a void execution. In these circumstances the plaintiff can not recover the payment.

No. 6001. November 17, 1927.

3. Applying the above principles, the court erred in not sustaining the demurrer to the petition.

Judgment reversed.

All the Justices concur. O. C. Hancock and Scoll & Hornbuckle, for plaintiff in error. Key, McClelland & McClelland, contra.