TARPLEE v. CAPP.

25 IND. APP. 56.-1900.

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WILEY, C. J.—This was an action by appellee, as administrator de bonis non of the estate of James W. Anderson, deceased, against appellant, to recover an overpayment made to him by a former executor in the belief that the estate was solvent. The case was put at issue, tried by the court, a special finding of facts made, and conclusions of law stated thereon, favorable to appellee. Final judgment was rendered accordingly. * The first objection urged to the complaint is that the appellee, as administrator de bonis non, has no right to bring and maintain this action. While there is some conflict in the adjudicated cases, we are inclined to the view that the weight of the authorities and sound reason support appellee's right to maintain the action. In Thornton & Blackledge on Administration and Settlement of Estates, § 169, p. 453, the rule is stated to the effect that where an administrator pays to a creditor of the estate the full amount of his claim, believing the estate is solvent, and it turns out that it is insolvent, such administrator may recover back the excess in amount paid, if such claim is not a preferred one. In East v. Ferguson, 59 Ind. 169, it was held that, where a settlement was made with a creditor of an estate, and his claim allowed in full upon a mutual mistake, that the estate was solvent, and the claim is not a preferred one, such facts will constitute such a mistake as will be relieved against, and an action will lie to recover the excess. In Wolf v. Beaird, 123 Ill. 585, 15 N. E. 161, it was held that where an executor, under the honest belief that the estate was solvent, pays a creditor in excess of his pro rata distributive share, he may recover back the overpayment in an action for money had and received for the use of the estate. It was also held in that case that it could make no difference to the defendant whether the plaintiff sued in his representative capacity or in his individual name. It has been held that, where an administrator of a deceased member of a firm, relying upon statements contained in the reports and inventory of the surviving partner of his decedent, paid to one of the heirs and distributees of the estate represented by the administrator a sum in excess of the amount she was entitled to receive by reason of a depreciation in the value of the estate of the deceased partner, the administrator was entitled to recover from such heir and distributee the excess, whether the money was paid to her at her request or was voluntarily paid to her without request; the money having been paid under a mistake of fact, and not under a mistake of law. Stokes v. Goodykoontz, 126 Ind. 535, 26 N. E. 391. The court, by ELLIOTT,

A creditor of Anderson.-ED.

J., said: "The money paid by the administrator was paid under a mistake of fact, and not under a mistake of law. The facts which induced the administrator to pay the money * * * * were presented to him in a lawful mode, and he had a right to rely upon them."

In Henry's Probate Law, § 333, it is said: "As a rule, an overpayment to a creditor, made by an administrator or an executor, may be recovered; it being inferred that he only intended to make such payment as the estate could afford, and not to subject himself to personal liability on account of a deficiency of assets. This is, however, contrary to the common-law rule. But it is probably essential to the recovery that such payment has been made under the impression that the estate was solvent." Smith v. Smith, 76 Ind. 236, is in point. In that case the executors paid to appellant, who was a legatee under the will of the decedent, a certain amount of money and specific property. No account had been taken of the claim of the widow to her statutory allowance of $500, and it turned out that, after the distribution to appellant (the residuary legatee), there was not left sufficient assets with which to pay the widow's claim for $500. Referring to the rule, and the authorities in support of it, that ordinarily the payment of a demand without compulsion, and without fraud, and with a full opportunity of obtaining such knowledge, cannot be recovered back, the court, by BICKNELL, C. C., said: "But such a rule is not applicable to legacies, or to money paid upon distribution by an executor. A legatee or distributee may be required to give a bond conditioned to refund his ratable proportion of the estate, if necessary (Decedents' Act, §§ 120, 140); and the failure of the executor to take out such a bond will not release the legatee or distributee from his liability to refund when necessary for the payment of debts, legacies, or claims." The following cases are also in point: Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 313, 12 L. R. A. 285; Walker v. Hill, 17 Mass. 380; Alexander v. Fisher, 18 Ala. 374; Rogers v. Weaver, 5 Ohio 536; Wheadon v. Olds, 20 Wend. 174; Barnett v. Van Meter, 7 Ind. App. 45, 33 N. E. 666.

It is also urged that the complaint is bad because it does not allege that a final dividend had been ascertained and declared by the court in which the estate was pending for settlement. We do not think this objection is well taken. It is alleged that all the assets. of the estate had been reduced to cash; that there was in the hands of appellee $84,988.56 to be applied on the general debts; that the claims filed amounted to $110,952.99, and that the estate could only pay 772 per cent. on the dollar on the general claims. It is also stated on this basis what the overpayment to appellant was.1 These averments are sufficiently definite to obviate the objections to the complaint under consideration. We are satisfied from the authorities, and upon sound reason, that the complaint states a cause of action. *

* * *2

'As to the competency of evidence of the insufficiency of the assets, see Woodruff v. Claflin, 198 N. Y. 470, 477-478 (1910).

2

See also, accord, Mansfield v. Lynch, set out in note, ante, p. 289. As to payment under mistake of law, by an executor, see Hemphill v. Moody, post, p. 414.

7. PLAINTIFF NEGLIGENT AND DEFENDANT'S POSITION CHANGED.

WILSON v. BARKER.

50 ME. 447-1862.

APPLETON, C. J.-The facts, upon which the rights of these parties depend, are few and not controverted.

On November 8, 1843, David Pingree and Eben S. Coe conveyed a tract of land in Stetson to E. G. Allen, who, on the same day, mortgaged the premises to his grantors to secure in part the purchase money. The deed and mortgage were duly recorded, and the latter was assigned to the defendant, September 19, 1854, and the assignment seasonably recorded.

E. G. Allen, having only the equity to redeem, on 16th of April, 1850, conveyed by deed the premises purchased to D. C. and C. L. Whiting, who, on the same day, conveyed them in mortgage to their grantor. The deed was not recorded, the mortgage was. On September 13, 1853, the deed, E. G. Allen to the Whitings, not having been recorded, Messrs. Shaw & Merrill caused an attachment to be made of Allen's right of redeeming his mortgage to Pingree and Coe. They subsequently, at the April term 1856, obtained judgment, and, on the 30th of the following May, this equity of redemption was seized, and, on 2d July, of the same year, at 2 o'clock P. M., the same was sold to the plaintiffs in the execution, in whom, or in their assigns, the title thus acquired became perfected by lapse of time. All these proceedings are conceded to have been in conformity with law. The mortgage of the Whitings, dated 16th April, 1850, after intermediate assignments, on 9th February, 1856, became vested in the plaintiff.

It thus appears that the plaintiff, to make his mortgage available and his title under it good, was bound to procure a discharge of the mortgage of Allen to Pingree and Coe, which had been assigned to the defendant, and to remove the attachment of Shaw & Merrill. In this state of the title, the plaintiff, on the 26th of July, 1856, at I o'clock, tendered the defendant $230 on account of the mortgage of Allen to Pingree and Coe, assigned to him, which he received. Subsequently, being doubtful whether the amount tendered was sufficient, on the 6th of September following, he tendered the further sum of $6, which the defendant took, remarking that he always made it a rule to take all the money offered him, and, on the 12th of the same September, discharged the mortgage of Allen to Pingree and Coe, upon the records of the county. By these proceedings the estate of the plaintiff was relieved from one of the outstanding incumbrances. The attachment, ripened into a title by sale on execution, was still subsisting and unpaid. The plaintiff neglecting to redeem that, and the title being perfected in the purchaser, he lost all benefit from his payment of the mortgage debt. The tender, effecting the object for which it was made, ultimately failed to be of

any benefit, by reason of the intervening title of Shaw & Merrill becoming vested in them.

The plaintiff brings assumpsit to recover the money tendered on account of the Pingree and Coe mortgage.

It seems the plaintiff was in fact ignorant of the attachment in favor of Shaw & Merrill, though the same was duly recorded. The defendant, who, as their attorney, procured it to be made, did not disclose its existence at the time the tender was made, nor since. As the attachment was recorded, its existence was ascertainable by all interested to inquire. The plaintiff having an interest to ascertain the facts, omitted to examine the records and thus learn them. His neglect to make those inquiries, which ordinary prudence would dictate, cannot give him any new rights nor enlarge those already existing. The defendant did not disclose the existence of an attachment. He was not aware of the plaintiff's ignorance of that fact. He could not reasonably anticipate negligence on the part of one so sagacious and vigilant as the plaintiff. The parties were dealing adversely. He could not assume that the records of the county were unknown. He was not bound to inform the plaintiff of their contents, certainly not, when no inquiries were made of him on the subject.

That the plaintiff derived no ultimate advantage from the tender is no fault of the defendant. It answered the purpose for which it was made. It effected a discharge of the Pingree and Coe mortgage. It was made for the purpose of discharging that mortgage. The defendant appropriated the tender as the plaintiff intended he should. The mortgage is discharged. The plaintiff cannot place the defendant in the position in which he stood before its discharge. The plaintiff, by tendering the amount due to Shaw & Merrill, or to their assignee, might have accomplished his object. He neglected it and must suffer. But all this gives him no right of action.

Neither can the plaintiff's ignorance, that the deed of Allen to the Whitings was not recorded, avail him. The fact was easily ascertainable, and if not known, it was his neglect that he did not ascertain it. The defendant could not presume that the plaintiff did not know the state of his own title. He was not bound to deduce it for him, nor to point out any defective links there might be therein.

The parties negotiated ex adverso. The defendant made no misrepresentations. The plaintiff failed to tender enough to remove all existing incumbrances. He mistook the facts, and neglecting to guard his rights with his usual vigilance, he must abide the result. Plaintiff non-suit.1

1Accord, Fegan v. Great Northern Ry. Co., 9 N. Dak. 30 (1899), where plaintiff, an employe of defendant, was by the rules of the defendant, bound to know the facts and defendant has, subsequent to the payment, lost a right to indemnity; and see Hathaway v. Delaware Co., 185 N. Y. 368 (1906).

In Queensborough Gas Co. v. Schoncke, 76 Misc. (N. Y.) 190 (1912), plaintiff, by erroneous reading of its meter, charged defendants for only rart of the electrical current actually used. Defendants paid in good faith the bills as presented and added this cost of the current to the prices charged to their customers. Held, an alteration of position that would bar further recovery by plaintiff.

8. DEFENDANT NEGLIGENT AND DEFENDANT'S POSITION CHANGED.

NEWALL AND ANOTHER V. TOMLINSON AND ANOTHER.

L. R. 6 C. P. 405.-1871.

ACTION for money had and received, money paid, interest, and money found due upon accounts stated. Plea, never indebted.

The facts were as follows: The plaintiffs and the defendants were respectively cotton brokers in Liverpool. In April, 1870, the plaintiffs bought of the defendants seventy-four bales of cotton ex Glen Cora, each acting for principals whose names were not disclosed, and, according to the usage of the cotton-market, each treating the others as principals in the transaction. Weight-lists of the cotton were in the ordinary course delivered to each party from the warehouse-keeper at Albert Dock; but a clerk of the defendants made a mistake of 100 cwt. in adding up the figures, and the consequence was that when the plaintiffs paid for the cotton they paid the defendants too much by 5091 158. The mistake was not discovered until the 14th of December, when the plaintiffs demanded back that sum. The invoice for the cotton (which was delivered on the 22d of April) was headed as follows: "Messrs. Newall & Clayton, bought from W. D. Tomlinson & Co." etc.; and it was not until after the discovery of the mistake that the plaintiffs were informed (as the fact was) that Messrs. Dixon & Co. were the defendants' principals.

In the meantime the defendants, who had previously to the arrival of the cotton advanced very considerable sums to the shippers, Messrs. Dixon & Co., had allowed the sum in question in their account with them, and had subsequently gone on making further advances; and when Dixon & Co. ultimately suspended payment, the balance due from them to the defendants on account of these transactions exceeded 2000l. The defendants thereupon claimed to be entitled to shelter themselves under the rule of law which protects payments bona fide made by an agent to his principal, without notice; and at the trial it was submitted on their behalf, that, being known to the brokers, and being under advances to their principals, whether the plaintiffs knew that they were acting for principals or not, they (the defendants) were entitled and bound to hand over the money to their principals, or (which was the same thing) entitled to set it off against their advances, and having done so, were not liable to be called upon to refund it: and the cases of Holland v. Russell, 1 B. & S. 424, 30 L. J. Q. B. 308: in error, 4 B. & S. 14, 32 L. J. Q. B. 297, and Shand v. Grant, 15 C. B. N. S. 324, were cited.

The learned judge in his summing-up said that every agent for the sale of goods who has advanced money upon them and has them