Murtland v. City of Pittsburg

Opinion bv

Mb. Justice G-been,

We are quite clearly of opinion that the learned referee in this case placed his decision upon the true ground. There was in fact no payment of the liens or of the debt for which they were entered, nor was any such payment intended by the parties to the transaction. An appeal had been already taken from the assessment of benefits, and the purpose of the appeal was to contest the right of the city to recover any part of the assessments. No purpose to abandon the appeal was disclosed, but another and entirely different purpose was distinctly expressed, and beyond all question it was the real and operative occasion of the arrangement that was made. The Murtland heirs had made a contract for the sale of the land against which these liens were entered. The purchasers, when they discovered that the liens had been filed, refused to take the property unless the liens were removed, and thereupon, for that reason, and for that reason only, the counsel for the heirs called upon the city attorney to see what could be done so as to protect the purchasers and save the sale. This was an entirely legitimate and proper thing to do, and a plan was devised by which the object could be accomplished. The purchasers of course desired to be relieved of the liens, and to accomplish this object it was necessary that they should be discharged. But the city could not be expected to do this unless they could be assured of their money if the liens were sustained. And at the same time the Murtland heirs desired to preserve their contest of the city’s right to recover. To subserve these various purposes it was agreed that the heirs should deposit with the city attorney, acting on behalf of the city, money enough to pay the liens if the city’s right to recover should be sustained, and the city by her attorney agreed to hold the money until the right of the city to recover should be determined and, if the decision should be adverse to the city, to return the money to the heirs. In the mean time the liens were to be, and actually were, discharged of record. As we have said before, this was a perfectly fair and legitimate transaction, which was actually carried out in entire good faith. All of these facts were found by the referee upon ample testimony as to which there was in reality no dispute.

It will be seen at once that there was no payment of the liens ' made or intended to be made, and all the authorities cited in reference to the effect of voluntary payments are entirely inapplicable and need not be considered. The authority of the city attorney to receive the money and hold it and return it, acting on behalf of the city, cannot be questioned. A long course of dealing by which the moneys due the city by way of assessment for benefits, and paid out by Mm in discharge of awards for damages, was fully established, and the referee found as a fact in this case that the money was actually received by the city and used by it m its own exoneration of its liability to those entitled to damages. These facts bemg established, it necessarily follows, as is shown very clearly in the report of the referee, that the city could not hold the money and repudiate the conditions under which it was received. The case of Hughes v. Bank, 110 Pa. 428, cited by the referee, fully sustains this doctrme. And on the city’s right to recover on the liens the case, In re Morewood Ave., 159 Pa. 20, also cited by the referee, is absolutely conclusive agamst the right, and as a necessary consequence she had no right whatever to retam the money or even to have received it. In these circumstances the decision of this Court in Clapp v. Pinegrove Twp., 188 Pa. 35, became directly applicable, to wit: that money received by a municipality which it had no right to receive could not be retained, and must be restored to the lawful owner, although he had himself paid it in. We think the case was correctly decided by the referee for reasons which are clearly and forcibly expressed M his report. It is not necessary to further enlarge upon them. We are not convinced by the opinion of the learned court below that the exceptions to the report should be sustained, but think they should have been dismissed and the report confirmed. The assignments of error are all sustained.

The judgment of the court below is reversed and judgment is now entered in favor of the plaintiff and against the defendant for §1,298.78, with interest from April 8,1891, with costs of suit.