95 Ind. 588 | Ind. | 1884
The appellant’s complaint against the appellees was held bad on demurrer, for want of sufficient facts.
The complaint showed, in substance, that, in 1875, one .John E. Haynes, being the owner of certain real estate in Indianapolis, executed to the appellant a mortgage thereon, to secure the payment of a note for the sum of $2,000, payable in five years, and coupon notes for semi-annual instalments of interest on said sum, said notes being made by said Haynes to the appellant, and said mortgage being duly recorded in the month in which it was executed; that in 1876 and 1877, the appellees brought actions in the court below against said Haynes for the enforcement of mechanics’ liens against said real estate; that said actions were consolidated and tried, and .a decree was rendered in favor of the plaintiffs therein, and the sums found and adjudged in their favor were decreed to be liens on said real estate, which was ordered to be sold for
We think that the payment made by the appellant for the redemption of the real estate must be regarded as a voluntary payment. In Railroad Co. v. Comm’rs, 98 U. S. 541, the following was approved as a correct statement of the common law:
“ Where a party pays an illegal demand with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary and can not be recovered back. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary.”
In Crosier v. Acer, 7 Paige, 137, it was said, that if a court of equity “can relieve against a mistake in law in any case where the defendant has been guilty of no fraud or unfair practice, which is at least very doubtful, it must be in a case in which the defendant has in reality lost nothing whatever by the mistake, and where the parties can be restored to the same situation, substantially, in which they were at the time the mistake happened.”
The appellant paid the redemption money with full knowledge of the facts, without any demand or request, and in the assertion of a right for its own benefit. A protest accompanying payment can not constitute proof of immediate and urgent necessity for payment, and can be of avail only when the constraint is otherwise shown, and then merely as evidence of want of acquiescence.
At the time of the payment, neither the appellees nor the appellant had possession of the real estate. If the appellant had not redeemed, the appellees would have been entitled to -a sheriff’s deed and to the immediate possession of the real estate, and to retain it until the appellant should acquire title under foreclosure of its mortgage. The appellees would have had also a valid demand against Haynes for rent for the year of redemption following the sale to the appellees. By the redemption the appellant put it out of the power of the appellees to obtain a deed and the possession of the real estate thereunder, and deprived them of a right to recover judgment against Haynes for the reasonable rents and profits of the year of redemption, and the appellant acquired a lien on the premises for the redemption money, and could take its own time to foreclose its mortgage, which it appears to have done. Whether in its foreclosure it enforced its lien for the redemption money, or what was the value of the property obtained by the appellant under its foreclosure sale, is not shown.
It is not pretended that the judgment of the appellees as against Haynes was attacked by the appellant or affected by its proceeding for review. When the appellant demanded repayment after procurement of an adjudication in special term that the appellees had acquired no priority over the appellant, all right of redemption by the appellees from the ¿appellant would have been lost if they had repaid the money
The appellees, retaining the redemption money, to the payment of which by the appellant they could not object, were not merely cut off from the right to sue an insolvent person for rents and profits, but they were also deprived of other' valuable rights. Besides the fact that, if it be possible to place the appellees in statu quo, no offer of restoration has been made, we think it is plain that the appellees could conscientiously receive and retain the money paid to ths clerk for their use.
Pee Curiam. — Upon the foregoing opinion it is ordered that the judgment be affirmed at the appellant’s costs.
The appellant waited until about one month before the expiration of the year for redemption before it commenced its suit for review, and, after the adverse decision therein of the court in special term, the appellant, in the exercise of its own judgment, redeemed, though, as the event of its appeal showed, there was no absolute need of redeeming in order to enforce its mortgage as prior to the liens of the appellees. It succeeded in obtaining a reversal of the judgment of the court, but it can not reverse its own judgment. It paid under its own claim of right to do so, and the appellees suffered the redemption of the real estate which they could not prevent. We think that the complaint does not show that they should be required to repay the redemption money.