Real Estate Saving Institution v. Linder

The opinion of the court was delivered, January 5th 1874, by

Mercur, J. —

This action was brought to recover money, which the plaintiff below claimed had been received for her use. The affidavit of defence filed avers the money was paid to the defendant below under these circumstances, to wit: Linder and wife had executed a bond to John II. Cassiday, conditioned for the payment of $800, and to secure the payment thereof had given a mortgage upon lands of the wife, designated as Nos. 2 and 3 in block No. 13. The mortgagee assigned it to the defendant below, who issued a scire facias upon it. During the pendency of that action, and after an affidavit of defence and plea had been filed by Mrs. Linder, one James W. Mackrell purchased lot No. 3 from her, and voluntarily paid to the plaintiff in that case, who was the defendant below in this, the sum of $420 upon the mortgage, and thereby procured a release of said lot from the lien of the mortgage ; that the assignee in good conscience received the money. Thus the affidavit substantially avers an entire good faith transaction on the part of the defendant-below, and a voluntary payment by Mackrell with full knowledge, or with the means of full knowledge, of all the facts alleged against.the validity of the mortgage. • The affidavit made by the plaintiff below of her cause of action shows that Mackrell had actual notice of the pendency of the scire facias. She avers he paid it “to secure himself against the lien of said mortgage, and the possible contingencies of the suit on the same;” that she had full notice is unquestioned.

The general rule is well settled that one who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practised upon him, cannot recover it back by reason of the payment having been made in ignorance of law. In our own state this rule has been recognised in Irvine v. Hanlin, 10 S. & R. 219; Espy v. Allison, 9 Watts 462; Boas v. Updegrove, 5 Barr 516; Appeals of During, King and Miller, 1 Harris 224; Natcher v. Natcher, 11 Wright 496; Deysher v. Triebel, 14 P. F. Smith 383. The affidavit of ■ the plaintiff below charges no fraud, or knowledge of fraud, in the assignee of the mortgage. It does not aver that he received the money in bad faith, or that it was against conscience for him to retain it. As the ease stood we think the learned judge erred in entering judgment for want of a sufficient affidavit of defence. If upon a trial the evidence shall show that the defendant below is liable to pay the money it may admit of a question whether the right of action is in the present plaintiff below. As to this we at present indicate no opinion.

Judgment reversed, and a procedendo awarded.