93 P. 361 | Or. | 1908
delivered the opinion.
1. The debt due from the Buell estate on the claim presented by Brown was not subject to attachment by Brown’s creditor at the time the writ of garnishment was served upon Thorsen, one of the administrators. No order of the county court had been made settling the claim or directing its payment, and until the share of a creditor, heir, or legatee of an estate has been ascertained and ordered paid by the court, the money or funds of the estate are in the custody of the law, and not subject to levy under execution or process of garnishment.
2. The defendants contend that the payment of the money to the sheriff by Thorsen was voluntarily made, and therefore cannot be recovered by him and his co-administrators. It is well settled that one who voluntarily pays money in satisfaction of an asserted demand, with full knowledge of all 'the facts, cannot recover it when the transaction is unaffected by any
3. But it is equally as well settled that when the payment of an illegal demand is made under a mistake of fact it may be recovered in an action for money had and received: Stokes v. Goodykoontz, 126 Ind. 535 (26 N. E. 391); Wolf v. Beaird, 123 Ill. 585 (15 N. E. 161: 5 Am. St. Rep. 565); Walker v. Hill, 17 Mass. 380; Rogers v. Weaver, 5 Ohio, 536. These questions are ably and exhaustively considered by Mr. Justice Wolverton, in his opinion in Scott v. Ford, 45 Or. 531 (78 Pac. 742: 80 Pac. 899), and it is unnecessary to add to the discussion at this time.
4. Now it appears from the facts, as alleged in the pleadings in the case at bar, that the payment by Thorsen to the sheriff, was made under a mistake of fact as to the nature of the order of the circuit court and upon the advice of the attorney for the defendants, who he supposed at the time was acting for the estate. Thorsen was notified by the sheriff that the circuit court had made an order in the attachment proceedings requiring him to pay the amount of the judgment, recovered by Hooper & Hudson against Eaden & Brown, out of the funds of the estate, and that such order was in the hands of the officer for execution, when in fact, no such order had been made. Belying upon this statement, and the erroneous advice of the attorney for the defendants, he paid the amount of the judgment out of the trust funds in his hands, and the money was subsequently paid to the defendants. If these facts are true, and for the purposes of this case it must be so assumed, we think that in equity and good conscience |Dlaintifii should be permitted to recover it.
Judgment of the court below will therefore be reversed, and