Bennett v. Healey

• Citation: 6 Minn. 158
• Parties: THOMAS E. BENNETT, et al. vs. GEORGE HEALEY.
• Decision Date: 01 January 1861
• Court: Supreme Court of Minnesota (US)

6 Minn. 158

THOMAS E. BENNETT, et al. vs. GEORGE HEALEY.

Supreme Court of Minnesota.

Appeal from the judgment of the district court, Winona County.

Healey sued Bennett and the other appellants below.

The complaint shows, in substance, that the defendant Bennett held a first mortgage to secure two notes, one for $345, which was paid, and another for $390, on which had been paid $227.95, and that at the date of the notice of sale there was not more than $200 due on the mortgage; that plaintiff held a second mortgage on the same land; that defendant foreclosed by advertisement, and in his notice of sale claimed to be due $410, and at the sale bid in the property at $410; that the day before a year from the sale expired, plaintiff informed defendant that he was ready and willing to redeem, and requested defendant to inform him of the dates and amounts of the payments on the note, or to show him the note, which defendant refused to do, and refused to receive for redemption of the premises any less than $410, and interest at 12 per cent. from the day of sale. The plaintiff was unable to ascertain the exact amount due on the note, for the reason that the mortgagor had removed from the state; that after such refusal of defendant, plaintiff, for the purpose of redeeming, paid to the sheriff, who made the sale, the whole amount of the bid and interest, stating to him that he did so under protest, of which the sheriff notified defendant when he paid the money over to him; that he has demanded from defendant the excess and repayment thereof and has been refused.

The defendants demurred to the complaint, one ground being, that it does not state facts sufficient to constitute a cause of action.

The plaintiff had judgment on the demurrer.

Points and authorities for appellants: —

1. The complaint in this case shows that the premises were duly advertised by the defendants and sold by the sheriff of the proper county; that they were bid off by the defendants upon the sale for no greater sum than they claimed to be due to them in the notice of sale and upon the sale; that Moore the mortgagor, Cook, the purchaser of his equity of redemption, and this plaintiff, the mortgagee of Cook's equity, had each due notice of the sale and the sum claimed by the defendants to be due to them upon the mortgage, and that neither of these parties took any steps to have the amount due upon the mortgage assessed, or raised any objection to the amount claimed by defendants, prior to or upon the sale, and no excuse of any kind is claimed to exist accounting for the neglect. The complaint, therefore, shows upon its face that no cause of action exists in favor of the plaintiff against the defendants. First, the foreclosure of a mortgage by advertisement stands upon the same footing as a suit at law or a foreclosure in chancery, and the sale is equivalent to a final judgment or decree; and where the purchase money does not exceed the amount claimed in the notice of sale there is no surplus money, and this action does not lie. Bidwell v. Whitney, 4 Minn., [76]; Banker v. Brent, id., [521]. Second, it was never heard that a party might, in a court of law or equity, litigate any matter involved in a final judgment or decree against him until after, upon a case made obtaining leave to defend, or getting the judgment or decree set aside; and there can be no claim made, that in this action there is a case made which would authorize the court to do either, or that which would in effect amount to either of these things; because the complaint contains no averment of either mistake, inadvertance, surprise, fraud, or collusion. Third, it is well settled upon authority that a party having an interest in an equity of redemption, although not made a party to a bill of foreclosure, is not entitled after final decree made, to an accounting, but is bound by the decree so far as that is concerned, unless he avers and proves that the same was procured through fraud or collusion. Roswell v. Simonton, 2 Ind., 516; Weedler v. Deeble, 1 Ch. Cas., 299; Sherman v. Cox, 3 Ch., 46; Haines v. Beach, 3 Johns. Ch., 459; 2 Spence Eq. Jur., 812.

2. But if the facts stated in the complaint, under any circumstances, could be considered sufficient to authorize the court to permit the plaintiff to have an accounting, or to set aside the sale, still he is not entitled to recover: First, the complaint shows that the defendants at all times claimed that there was due to them upon the mortgage, and for costs of sale, $410, and at the time of the redemption by the plaintiff claimed that amount with interest accruing after the sale, in all amounting to $459.20; that at that time, and, for aught that appears, for a long time prior to the sale, the plaintiff knew that in law and in fact there was but $260 due upon the mortgage, and yet with this knowledge and with a knowledge of all the facts in the case, he paid over the whole amount claimed by the defendants. The payment was therefore voluntary, and no part of it can be recovered back, either at law or in equity. Mowatt v. Wright, 1 Wend., 355; Clarke v. Dutcher, 9 Cow., 674; Brisbane v. Dacres, 5 Taunt., 143; Bilbie v. Lumley, 2 East., 469; Bulkely v. Stewart, 1 Day., 130; Lyon v. Richmond, 2 Johns. Ch., 51, 59, 61. In the case of Bulkely v. Stewart, supra, the supreme court of Connecticut say: "This action does not lie to recover back money voluntarily paid on a claim which the party disputes, though he pay it, expressly reserving his right to litigate his claim." Second, it is no answer to say that the plaintiff had no other alternative but to pay all the moneys demanded by the defendants upon the redemption, or lose his lien upon the premises. Because (if he was not foreclosed by the sale from bringing an action to redeem) a bill to redeem mortgaged land may be maintained without a previous payment or tender, if the mortgagor on request neglects or refuses to render his account. Roby v. Skinner, 34 Me., 270; Stapp v. Phelps, 7 Dana, 300. The assignment by Cook to the plaintiff does not place him in any better position, for if Cook himself were the plaintiff, the same argument would apply with equal force to him; he could confer no greater right than he himself had.

The judgment of the court below should be reversed.

Points and authorities for respondent: —

The court below properly overruled the demurrer of the appellants. Because, —

1. It does not appear that there is any defect of parties defendant. This ground of demurrer will lie only for a deficiency, not for an excess, of parties. Wallace v. Eaton, 5 How. Pr. R., 99; Goncelier v. Foret, 4 Minn. [13]. In the case at bar, the second mortgagor, Cook, has no interest in the matter, having assigned any right he might have to the plaintiff. The first mortgagor, Moore, has assigned all his interest in the land to the second mortgagor, Cook. And the sheriff, who sold the land and received the redemption money, can have no interest in the matter, having already paid over the money. And, moreover, in all that he did in the premises, he cannot be considered as performing any official act, but simply acting as the agent of the appellants.

2. The complaint does state facts sufficient to constitute a cause of action: First, the payment of the money by respondent to appellants was not made under such circumstances as to constitute "a voluntary payment," and thus estop the respondent from maintaining an action to recover it back. Fulham v. Down, 6 Esp. 26. While it is true, as a general proposition, that a party is estopped by a voluntary payment of a illegal demand, yet the rule must be applied in each case according to the circumstances of that particular case. It is one of those rules in which "the circumstances of the case constitute the law of the case." Duke de Cadaval v. Collins, 4 Adol. & E., 858; Payne v. Chapman, 4 Adol. & E., 364. To the point, that the respondent was not estopped from recovering back money paid under such circumstances, see Harmony v. Bingham, 12 N. Y., 99; also cases there cited; also, Findley v. Adams, 2 Day, 369; Riply v. Gelston, 9 Johns., 201; Clinton v. Strong, 9 Johns., 370; Elliott v. Swartwout, 10 Peters, 137.

Second, ...