The plaintiff insists that what it "did urge and now urges is that when a voluntary payment is made under a mistake of law to a receiver, the payor is entitled to recover the same." The premise is conceded accordingly by it that the payment was voluntary. From this insistence and from an analysis of the petition, it must be held that the plaintiff was neither ignorant nor mistaken as to any or all material facts which would have prompted or restrained it from the voluntary issuance and payment of the duplicate draft. Thepetition failed to allege to the contrary. Camp v.Phillips, 49 Ga. 455. Therefore it must be assumed that the plaintiff unconditionally consummated all things necessary with the payee of the first draft to effect fully and completely the settlement once of the claim against it by the compromise between it and the payee, save only the obligatory payment of the draft on its presentation, and thereby extinguish any and all claims of the payee or assigns (or its receiver). It must be assumed that its "negotiable" draft was known to be already in the hands of third persons. In this connection it will be observed that only the validity of the assignment of the first draft was ever contested (in the Carolina court). The telegrams of the lawyers representing the receiver and Mrs. Groover demanded the inference that the draft was not in the manual control of either of them. It does not appear factually from the telegrams or the receivership proceedings that there were any demands that the payment of the draft be stopped and that delivery of a duplicate draft be made either to the receiver or Mrs. Groover. The receivership proceedings were silent, and the requests, such as they were, though seeking definitely an answer, left the matter optional with the plaintiff in error. The plaintiff, knowing that it had effected a binding settlement and extinguishment of the claim of the payee (save only
its due payment of the draft), and knowing that no legal right or chose could succeed to the receiver or Mrs. Groover in the claim already settled, and in knowledge of all facts, nevertheless executed its duplicate draft and delivered it to counsel for the receiver. It being shown that all facts were known to the plaintiff, and that the payment was voluntary, it remains to be determined whether the voluntary payment was made inignorance of law or in mistake of law. If it was made in ignorance of law, recovery is barred; if in mistake of law, recovery is permitted. Culbreath v. Culbreath, 7 Ga. 64
(50 Am. D. 375); Arnold v. Georgia Railroad BankingCo., 50 Ga. 304; Jenkins v. German LutheranCongregation, 58 Ga. 125, 126. "Ignorance implies passiveness; mistake implies action. Ignorance does not pretend to knowledge, but mistake assumes to know.Ignorance may be the result of laches, which is criminal; mistake argues diligence, which is commendable. Mere ignorance is no mistake, but amistake always involves ignorance, yet not that alone."Culbreath v. Culbreath, supra.
If the plaintiff was acting in ignorance of law or in mistake of law, it must be inquired what was the particular state of facts to which the one or the other was applying? The plaintiff knew that the receiver or Mrs. Groover had no claim against it, notwithstanding the telegram as to "assets" of the payee having been transferred to Mrs. Groover. It had effectually extinguished the claim of the payee by the first draft (conditioned on its payment); that draft had been transferred to an innocent purchaser for value; to him the plaintiff was indebted. There had, however, before actual payment of the first draft, been receivership proceedings perfected against the payee of that draft. Those proceedings in no way ad literatum required anything of the plaintiff. It was not a party thereto. Knowing these facts, the plaintiff was a stranger to the proceedings. The law was not obligating it to pay anything to the receiver or Mrs. Groover. While the plaintiff took action, the law was not impelling it. Therefore, under this state of facts, we think the plaintiff acted under ignorance of the law. However, had there been a contract or claim existent (as in Dolvin
v. American Harrow Co., 125 Ga. 699, 705 (54 S.E. 706, 28 L.R.A. (N.S.) 785), which it was the duty of the receiver to enforce, or had there been requirements made of the plaintiff under or by virtue of the receivership proceedings (Phillips v. Crews, 65 Ga. 274,
277), or the plaintiff had been a party to the proceedings, and had acted under a mistake of what the law was as applicable to this state of facts, or wasrequiring of it, we think that the mistake, though a product of ignorance, would be such a mistake of law as applied in the existence of facts impelling the action, rather than to the negation of their existence, and it would be such a mistake as would come within the rule. Such was not the status in the instant case. The petition sets out that the receiver received the proceeds of the duplicate draft. Taking the allegations of the petition most strongly against the pleader, we think the legal effect of the pleadings is that Mrs. Groover was the recipient of the proceeds of the duplicate draft. The telegram specifically indicated that all "assets" had been transferred to Mrs. Groover; and that should the plaintiff issue a duplicate, it might be either to the receiver or Mrs. Groover. Accordingly, it clearly appears that the receiver was only an intermediary or facilitator for conveying to Mrs. Groover the proceeds of the draft, to which the telegram had indicated she was entitled. The receiver was no more than a nominal conveyor of the proceeds, the legal effect being the same as if the duplicate draft had been made payable directly to Mrs. Groover. But whether the payment was in legal effect made to the receiver or Mrs. Groover, it appears to have been made in ignorance of the law, and was not recoverable.
Judgment adhered to. Broyles, C. J., and MacIntyre, J.,concur.