198 Mo. App. 597 | Mo. Ct. App. | 1918
This suit is to recover back an amount of money, paid by plaintiff to the sheriff of Dunklin County as the purchase price of some land sold under execution. The defendant is the judgment creditor in the execution sale and the money paid by the plaintiff was turned over by the sheriff to defendant. From a judgment for plaintiff the defendant appeals.
Having paid to the sheriff the amount of his bid and the sheriff having paid same to defendant in satisfaction of the execution, plaintiff sues to recover back same as having been paid under duress. The plaintiff’s argument is that, although the judgment defendant had no interest in this land and same belonged' to plaintiff, yet, to prevent a sale and to keep a cloud from his title, he was compelled to buy and pay his bid at the sheriff’s sale and the amount so paid was paid under duress and can be recovered. On the other' hand the defendant ’contends that the money paid was a voluntary payment and hence cannot be recovered.
•The general rule is that one who voluntarily pays money, with full knowledge of the facts relative to the claim made, cannot recover it back in the absence of fraud or duress, although the money paid was not actually due, was without sufficient consideration and was paid under protest. The voluntary payment of an illegal demand when the party paying knows it to be illegal affords no basis to recover back same unless paid under an immediate necessity to preserve one’s
“Generally a threat of legal process is not duress, for the party may plead and make proof and show that' he is not liable. . . . The reason for the rule and its propriety are quite obvious, when applied to a case of payment upon amere demand of money unaccompanied with any power or authority to enforce such demand, except by a suit of law. In such case if a party would resist such unjust demand, he must do so at the threshold. The parties treat with each other on equal terms, and if litigation is intended by the party of whom the money is demanded it should precede payment. . . . But where he can only be reached by a proceeding at law, he is bound to make his defense in the first instance and he cannot postpone the litigation by paying the demand and afterwards suing to recover it back. ’ ’
In the present case defendant was not armed with an execution against plaintiff’s property, nor even with a judgment against him, but only with an execution against M. E. Bledsoe. The sheriff did not sell or threaten to sell any interest of plaintiff' in this land but only the interest, if any, of said Bledsoe. In the sheriff’s sale there was no warranty that Bledsoe had any title. [2 Freeman on Executions, sec. 313H; McNamee v. Cole, 134 Mo. App. 266, 274, 114 S. W. 40; Hensley v. Baker, 10 Mo. 157; Talley v. Schlatitz, 180 Mo. 231,