Awalt v. Eutaw Building Ass'n, No. 4

| Md. | Jun 13, 1871

Robinson, J.,

delivered the opinion of the Court.

The appellant having executed a mortgage to secure the payment of $3,000 loaned by the appellee, made application to have the property released from the effect and operation of said mortgage. As a condition precedent to the execution of said release, the appellee demanded of the appellant the payment of the sum of $2,515.90, claiming the same to be due under the mortgage. To the payment of this sum the appellant objected, alleging that there was only due on account of said mortgage, $2,192.50, but, in order to have the property released, with full knowledge of the facts, and without any allegation of fraud on the part of the appellee, he paid the full amount thus demanded, and this suit is brought to recover the sum of $323.40, the alleged over-payment.

In Lester vs. Mayor and City Council of Baltimore, 29 Md., 415, this Court said: “ No principle is better settled than that where a person, with full knowledge of the facts, voluntarily pays a demand unjustly made upon him, though attempted or threatened to be enforced by proceedings, as appears to have been the case in this instance, it will not be considered as paid by compulsion, and the party thus paying is not entitled to recover, though he may have protested against the unfounded claim at the time of payment made.”

(Decided 13th June, 1871.)

.And in Mayor, &c. of Baltimore vs. Lefferman, 4 Gill, 425, after a full review of the authorities, it was held, “that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid. A payment, say the Court, made under the apprehension, or even menace of an impending distress warrant, would not render it a payment by compulsion.”

There is nothing in the case before us to exempt it from the operation of the well-established principles thus laid down and recognized by this Court. It cannot be pretended that the payment was made by the appellant under compulsion or duress. If the appellee demanded a larger sum than was due on the mortgage, the Courts were open to the appellant, and there the question could be heard and determined. If he preferred to pay the demand thus made, rather than resort to litigation, no action will lie to recover it hack.

Finding no error in the rulings of the Court below, the judgment will be affirmed.

Judgment affirmed.