Knox v. Abercrombie, 11 Ala. 997

Knox v. Abercrombie

11 Ala. 997 | Ala. | 1847

COLLIER, C. J.

The action for money had and received, it may be laid down generally, lies for money which ex aequo et bono, the defendant ought to refund, as for money paid by mistake, or upon a consideration which fails; or for money obtained by imposition, extortion or oppression; or by taking an undue advantage of the plaintiff’s situation. [3 Mass. Rep. 74; 1 Wend. R. 360; 6 Sergt. & R. Rep. 369; 2 Burr. Rep. 1012.] It may be maintained on a consideration which has failed, or on a contract rescinded, or not performed. [1 Esp. Rep. 150, 268; 4 Id. 221; 4 Taunt. Rep. 334; 2 W. Bla. Rep. 1078. [ Money paid on a judgment that is afterwards reversed, may be recovered back in this action, unless its retention by the defendant is consistent with equity and good conscience. [7 Ala. Rep. 484; 5 Stew. & P. Rep. 119; 1 Har. & Johns. Rep. 405; 6 Cow. Rep. 297; 13 Sergt. & R. Rep. 292; 10 Wend. Rep. 354.] So also for money paid on an execution issued on a satisfied judgment. [5 Cow. Rep. 488; 15 Wend. Rep. 321.]

In Brown v. Williams, 4 Wend. Rep. 360, it was held that assumpsit for money had and received will lie by an in-dorser of a note against the holder, to recover back money *1000paid under a judgment against such indorser, where the holder previous to the payment made an arrangement with a prior indorser, by which he discharges him, or enters into a covenant not to sue him. So, money collected under an execution issued on a judgment irregularly entered, may be recovered back in assumpsit. [Minor’s Rep. 71.] Where a judgment was regularly recovered in an action for the rents and profits, &c. the judgment debtor was allowed to recover back in another action the money paid by him in satisfaction of the judgment — on the ground that it had been since ascertained, by the reversal of a judgment against another person, that the judgment creditor was not entitled to retain the rents and profits so recovered by him. [15 Mass. Rep. 207.] In Fowler v. Shearer, 7 Mass. Rep. 14, it was held, that where an attorney in whose hands a note was placed for collection, received part pay thereof after action commenced, but notwithstanding took judgment for the whole amount of the note on the default of the maker, the latter might recover of the attorney the money so paid, though the attorney had paid it over to the creditor. [See also, 3 H. & Johns. Rep. 218; 4 Id. 66.]

It is said that if a person with a full knowledge of the facts, voluntarily pays a demand unjustly made on him, though attempted to be enforced by legal proceedings, it will not be considered as paid by compulsion, and he cannot recover it back. [1 Esp. Rep. 279; 2 Id. 572; 5 Taunt. R. 147; 4 B. & C. Rep. 290.] If the party is obliged to pay in order to obtain possession of the thing to which he is entitled, the payment is not voluntary, but compulsive, and may be recovered back. [7 B. & C. Rep. 85.] Let this brief citation of authorities suffice to furnish principles and analogies to guide our determination in the case before us.

Here the plaintiff, as the indorser of a bill of which Riddle was the acceptor, pays off a judgment which the holders had recovered against him, and takes an assignment of a separate judgment recovered by them against Riddle. When these several transactions took place, the right of Riddle to a credit for the loss consequent upon the failure of Knox & Co. to enforce a collection of their judgment against Mitchell, the *1001' garnishee, was not established. But this right was subsequently ascertained and settled by a decree in chancery. Under these circumstances, we think it clear that the plaintiff cannot be concluded by the payment he made to the defendant, upon the ground that it was voluntary. He did not only not pay his money until there was a judgment against him, but waited until an injunction as to that judgment had been dissolved. It was certainly competent for him to satisfy the judgment against himself, without awaiting the levy of an execution upon his property.

When the plaintiff paid the judgment against himself, on the bill, even without an assignment of the judgment against Riddle, he would have been remitted to his remedy against Riddle as the acceptor, and was entitled thus to reimburse himself. If the defendant impaired that remedy by having received a part of the money of Riddle, or discharged him from its payment by his acts or omissions, pro tanto, the plaintiff is entitled to recover back what he has paid the defendant. As to the form of action in which this right may be made available, we think it unquestionable that it is that which has been adopted in the present case.

The decree of the chancellor upon the report of the register is conclusive, (until reversed,) of the matters determined by it; at least as it respects the parties before us. It indicates the extent to which the plaintiff is barred of his remedy against Riddle, and thus admeasures the extent of the defendant’s liability.

This view is decisive of the case; the judgment is consequently affirmed.