| N.C. | Aug 5, 1848
This was an action of assumpsit for money had and (442) received. Plea, non assumpsit.
On the trial it appeared that the plaintiff had obtained a judgment in the County Court of Davie against one Samuel Newell for $2,016.10, with interest and costs, and that an execution of fieri facias was issue thereon returnable to August Term, 1842, which was placed in the defendant's hands as sheriff, and was by him levied on a house and lot belonging to the defendant in the execution, but he did not sell it on account of on order to that effect from the plaintiff. Several writs of venditioni exponas were then issued from time to time until November Term, 1843, and were placed in the defendant's hands, but the execution of them was suspended by order of the plaintiff. From November Term, 1843, another writ of fi. fa. was taken out, and placed also in the defendant's hands, but likewise suspended by the plaintiff's order, and no other execution was ever issued on the judgment. In December, 1845, the defendant, who was still sheriff, called upon the plaintiff's agent for the costs, including his commissions, and exhibited a statement in writing, in which commissions were charged upon the sum of $2,449.08, that being the amount of the principal debt with the interested and costs thereon, the commissions amounting to $61.97. The agent paid the costs and commissions, and the action was brought after a demand, to recover back the latter, either in whole or in part upon the ground that the defendant was not entitled to receive them and they had been paid by mistake. It appeared further, on the part of the plaintiff, that both she and the defendant in the execution were nonresidents, and that he had no other property in the county of Davie than the house and lot levied on, and that they were not at any time worth more than $1,000.
For the defendant testimony was introduced to show that he had several times advertised the house and lot for sale, but had been prevented from selling by the orders of the plaintiff's agent, and that in October, 1843, while the last (443) execution was in his hands, Samuel Newell executed to the plaintiff a deed in fee simple for the house and lot, in which the consideration was stated to be $2,500.
The plaintiff's counsel contended that the defendant was not entitled to any commissions, or, at most, to commissions upon the sum of $1,000 only, the value of the house and lot levied upon; and he insisted that the plaintiff could recover back in this action either the whole or a part of what had been paid to the defendant, as having been paid by mistake. His Honor held, and so instructed the jury that the defendant was entitled *324 to charge commissions upon the sum of $1,000 only, as that was the value of the property which he had levied on, but that the plaintiff could not sustain the action against him for the excess, because the payment was made upon a mistake of law and not of fact, and was a voluntary one, and could not be recovered back in the action for money had and received; and that the defendant's being sheriff at the time of the payment made no difference, as he had no process in his hands by which to coerce it. The defendant had a verdict and judgment, and the plaintiff appealed. It is the settled law of England, and has been so considered ever since the case of Marriot v. Hampton, 7 Term, 265, that where money has been paid by the plaintiff to the defendant under the compulsion of a recovery at law, which is afterwards discovered not to have been due, the plaintiff cannot recover it back in an action for money had and received The rule is necessary to prevent the repeated and protracted litigation of the same matter, it being better that one (444) person should occasionally suffer the wrong and inconvenience of paying an unjust claim than that every person should be rendered insecure in the fruits of a recovery at law. Interest reipublicae ut sit finis litium. Upon a principle somewhat similar, it was said by Mr. Justice Patterson, in the case of the Duke deCadoval v. Collins, 4 Ald. and Ell., 858 (31 Eng. C. L., 206), that "where there is bona fides, and money is paid with full knowledge of the facts, though there be no debt, still it cannot be recovered back." So it was held by Mr. Justice Bayley, in Milner v. Duncan, 6 Barn. and Cress., 671 (13 Eng. C. L., 294), that "if a party pay money under a mistake of the law, he cannot recover it back. But if he pay money under a mistake of the real facts, and no laches are imputable to him in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money." Many other cases involving these principles have come before the courts of England, in some of which very nice distinctions are drawn, so as to make the decisions sometimes appear almost contradictory; but upon a review of the whole of them, Smith Leading Cases, 244, states these points to be clearly settled.
1.That money obtained by compulsion of law, bona fide, and without taking an advantage of the situation of the party paying it, is not recoverable. *325
2. That money paid with full knowledge of the facts is not recoverable, if there be nothing unconscientious in the retainer of it.
3. That money paid in ignorance of the facts is recoverable, provided there have been no laches in the party paying it.
The American notes to the same work show, on the same page, that the principles above stated have been recognized in several of the States of the Union. In this State there is no doubt that money paid under a judgment, or paid (445) under legal process before judgment, where no advantage is taken of the situation of the party paying, cannot be recovered back. And it has been decided that it may be recovered if paid under a mistake of the facts. Poll v. Allen,
PER CURIAM. Judgment affirmed.
Cited: Adams v. Reeves,
(446)