McKibben v. Doyle , 173 Pa. 579 ( 1896 )

Opinion by

Mr. Justice Fell,

The defendant, Catharine Doyle, claiming to own the party wall between her premises, No. 2009 Pepper St., and the adjoining premises, No. 2011 Pepper St., obtained an injunction restraining the owner of No. 2011 from using the wall without making compensation therefor. After the injunction had issued the lot No. 2011 with the unfinished building was sold at sheriff’s sale and purchased by Thomas J. Rose, who conveyed it to the plaintiffs. The plaintiffs, desiring to complete the building, tendered to the defendant the price of the party wall. She declined to receive the money unless they would pay also the costs of the injunction proceeding against the former owner of the property, and she attempted by rule to make them parties to the proceeding. At the hearing of the rule to show cause the tender was again made and declined for the same reason. The rule was discharged November 25,1893, and on January 3, 1894, at the request of the defendant she was paid in full for the wall. It was subsequently ascertained that the defendant’s grantor had reserved the party wall and that she had no title to it or right to compensation for it, and this action was brought to recover back the money which the plaintiff had paid her.

There is no ground for the argument that this payment was made in mistake of law, or in settlement or compromise of a doubtful right. The defendant asserted her ownership of the wall, and the plaintiffs relying on her statement at once agreed to pay for it, and tendered the price. She attempted to exact the payment of the costs of a legal proceeding to which they were not parties and for which they were not liable. They refused to pay the costs, and the court refused to make them parties to the proceeding. This was the only litigation to be compromised, and there was no compromise of it. They successfully resisted her unfounded demand, and the proceeding as far as it concerned them was ended. Recognizing their duty to pay the owner of the wall, and relying upon her assertion of ownership, they paid her. It was a pure mistake of fact. The defendant sold what she did not own. There is nothing to take the case out of the rule that money erroneously paid under a mutual mistake of fact may be recovered back. The mere omission to take advantage of means of knowledge within the reach of the party paying does not prevent a recovery: Notes to Marriott v. Hampton, 2 Smith’s Leading Cases, 414; Meredith v. Haines, 14 W. N. C. 364. It was said in the latter case: “ It is not sufficient to prevent a party from recovering money paid by him under a mistake of fact that he had the means of knowledge of the facts unless he paid it intentionally, not choosing to investigate the facts.”

The judgment is affirmed.