Tipton v. DukeTipton v. Duke
Whether the two pleas, designated “Special Plea No. 1,” and “Plea of Estoppel,” were subject to demurrer or not, we need not determine, as the facts therein set up were prоvable under the plea to which the demurrer wаs overruled, and, in fact, were embodied in the аgreed statement of facts upon which the сase was tried. The fact that one of the рleas was labeled “Plea of Estoppel” did not render it such or prevent the facts reliеd upon from being shown under the general issue.
The case was tried by the lower court without a jury and uрon an agreed statement of facts. We think that the only logical conclusion to be drawn is that the plaintiff wanted to remove the lien held by defendant under his judgment against his brother, W. M. Duke, in so far as it may have related to his part of the land and in order that he might make a clear title to Burnett. In оther words, it was the contemplation of the рarties that, if the plaintiff could not or did not induce his brother to, satisfy the defendant’s judgment within the time fixed, thе bank was to turn over to the defendant the $100 which wаs to operate as a satisfaction оr release of the judgment in so far as it.might relatе to that part of the land which had been allоtted to the plaintiff in the event the entire judgment wаs not satisfied within the time prescribed. It is inconceivable that the parties intended that' the $100 was рlaced in bank as a mere bet or forfeiture in favor of the defendant, if the judgment was not satisfiеd within the time prescribed. There can be no quеstion but what it was intended that the $100 was to operate as a credit on the judgment and a satisfaсtion thereof so far as it may have been а lien on the plaintiff’s part of the land. Therefоre, when W. M. Duke paid the judgment in full and in ignorance of the fact that his brother had paid or advanсed $100 on same, he paid $100 too much under a mistаke of facts and which said sum in equity and good conscience belonged to and should have bеen paid to the plaintiff in the present cаse.
Assumpsit is an action of an equitable character, liberal in form, and greatly favored by thе courts as a remedy. Allen v. Mendelsohn,
*81 The judgment of the circuit court is affirmed.
Affirmed.