Culbreath v. James M

• Decision Date: 31 July 1849
• Docket Number: N0.11.
• Citation: 7 Ga. 64
• Parties: William Culbreath, plaintiff in error. vs. James M and Daniel G. Culbreath, defendants.
• Court: Georgia Supreme Court

7 Ga. 64

William Culbreath, plaintiff in error. vs. James M and Daniel G. Culbreath, defendants.

N0.11.

Supreme Court of the State of Georgia

JULY TERM, 1849.

Assumpsit, in Harris Superior Court. Decided by Judge Alexander, March Term, 1849.

Obadiah M. Culbreath died intestate, leaving neither wife nor children. His nearest of kin were seven surviving, brothers and sisters, and the children of a deceased sister. William Culbreath,. the administrator, under a misapprehension of the law, divided the estate equally between the seven brothers and sisters, to the exclusion of the children of the deceased sister. Subsequently, these children instituted suit against the administrator and recovered the one-eighth of the estate.

The present action was by William Culbreath against two of the distributees to recover back the amount overpaid, on account of this mistake.

Upon an agreed statement of the facts in the Court below, the presiding Judge awarded a non-suit against the plaintiff, who appealed to this Court.

M. J. Crawford, for plaintiff in error.

The action for money had and received, is an equitable action, and lies to recover money which ought not, in justice, to be kept; it lies to recover money which, ex Å“quo et bono, the defendant ought to refund, and will be sustained and a recovery allowed, where a bill in Chancery would authorize a decree for the plaintiff. Chitty on Con. 474.

Wherever the plaintiff could recover in a Court of Equity, he can recover in an action for money had and received; and all that he is bound to show is, that he has equity and conscience on his side. 2 T. R. 153.

If a man pay money which the law would not compel him to pay, but which in Equity and conscience he ought to pay, he cannot recover it back; such as a payment after a debt has been barred by the Statute of Limitations, or where a minor pays a debt contracted during his infancy. In both these instances the debtors are bound in morals, thought not in law, for the payment of the money, and if they make it, they cannot afterwards maintain an action for money had and received, and recover the amount so paid, because they were honorably bound to pay as above stated, and the parties receiving violate no principle of equity in retaining it. Money paid by mistake, when there was no ground to claim it in conscience, then the party paying may sustain an action and recover it back. 3 Mass. 75. 4 lb. 383. 1 Kelly, 25, 149. 1 Term R, 154.

Money paid by mistake alone may be recovered back. Chitty on Con. 475, and note 1. 4 Mass. 383. 2 Cowper, 565.

When a party pays money by mistake, with a full knowledge of all the facts, and intending to waive his legal right, then he cannot recover; but a waiver is absolutely necessary to prevent a recovery. 2 Smith's L. Cases, top p. 326.

Any payment made with knowledge of facts cannot be recovered, unless it is unconscientious to retain it, Smith's L. Cases, 2d vol. 328, top p.

An administrator who overpays distributees, may sustain an action compelling them to refund; so may an executor against legatees, and so they may, should debts be afterwards established against the representatives, not known at the time of payment. 1 vol. 2 book, Bl. Com. top p. 414.

They may recover after a voluntary payment. 17 Mass. 384.

E. E. Brown, for defendant in error.

The plaintiff in this case seeks to recover back money voluntarily paid to the defendants, with a full knowledge of all the facts, but, as he alleges, in ignorance of the law. Ignorantia juris excusat neminem, ignorantia facti excusat. See 1 J. C. E. 516. 2 J. C.R. 51, 60.

The following position is sustained by all the authorities: that "Where there is bona fides, and money is paid with full knowledge of the facts, though there be no debt, it cannot be recovered back." 2 Smith's L. Cases, 324, '7, (Marriot vs. Hampton,) and cases there cited.

The. same principle settled in 37 E. C. L. E. Wilson vs. Bay, 50. 10 Adolphus & Ellis, 82. See, also, 1 E. C. L. B. 143. Brisbane vs. Dacres, 5 Taunton, 143.

By the Court —Nisbet, J., delivering the opinion.

The judgment of non-suit was awarded by the Court below in this case, upon the following state of facts, agreed upon by the parties: "The actions were founded upon a voluntary payment made to each of the defendants by the plaintiff, as administrator of Obadiah M. Culbreath, deceased, of one-seventh part of said intestate's estate, as part of their distributive shares of said estate, in ignorance of the law of distribution of estates. After the payments, the children of a deceased sister of the intestate, and also of the defendant's, in being at the time of the payments, and known and recognized as such children of a deceased sister of the intestate and of the defendants, brought suit against the plaintiff, as administrator aforesaid, to recover their distributive share of the estate of said intestate, it being one-eighth of said estate, and did recover. The suits now pending, were brought by the plaintiff to recover of defendants their proportion of the over-payment to them.'' Upon the hearing, the presiding Judge nonsuited the plaintiff, with leave to move at the next term, to set aside the nonsuit and reinstate the cases. Which motion being made, was refused, and to that decision the plaintiff excepted.

Upon the hearing before this Court, it was conceded on bothsides, that with a knowledge of all the facts, the plaintiff acted upon a mistake of the law. That was considered as proven. Believing that the defendants were entitled to the whole of the estate of his intestate, to the exclusion of the children of his deceased sister, through a mistake as to the law, he paid to them the share which was rightfully due to those children. They having sued and recovered of him their distributive share, he brings these actions to recover of the defendants the money so paid to them, through a mistake of the law. The question is, can a party recover back money paid, with a knowledge of all the facts, through mistake of the law?

We are fully aware that the authorities upon this question are in conflict, as well in England as in this country. Great names and Courts of eminent authority, are arrayed on either side. It is not one of those questions upon which the mind promptly and satisfactorily arrives at a conclusion. This is true in reference both to principle and authority. It is not surprising, therefore, that Judge Alexander and this Court should differ. I think, and I shall try to prove, that the weight of authority is with us. If it were not so—if authorities were balanced—we feel justified in kicking the beam, and ruling according to that naked and changeless equity which forbids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing: an equity which is natural—which savages understand—which cultivated reason approves, and which Christianity not only sanctions, but in a thousand forms has ordained. In riding in favor of these actions, we aim at no visionary moral perfectibility. We feel the necessity of practicable rules, by which rights are to be protected and wrongs redressed. We know the necessity, too, of general rules, and how absurd would be that attempt, which seeks to administer the equity which springs from each and every case. The insufficiency which marks all law-givers, laws and tribunals of justice—makes that a hopeless thing. Still, where neither positive law, nor a well settled train of decisions, impose upon Courts a prohibition, they are at liberty, nay, bound to respect the authority of natural equity and sound morality. Where these are found on one side of a doubtful question, they ought to cast the scale. Moreover, we believe that the rule we are about to lay down, may be so guarded, as in its application to be both practicable and politic.

It is difficult to say that an action for the recovery of money paid by mistake of the law, will not lie upon those principles which govern the action of assumpsit for money had and received. Those principles are well settled, since the great case of Moses vs. McFarlan, in 2 Burrow, 1005. The grounds upon which that necessary and most benign remedy goes, are there laid down by Lord Mansfield. This claim falls within the principles there settled, and cannot be distinguished from cases which have been ruled to fall within them, but by an arbitrary exclusion. I am not now using the case of Moses vs. McFarlan, as the authority of a judgment upon the precise question made in this record; although Lord Mansfield there held, that money paid by mistake could be recovered back in this action, without distinguishing between mistake of law and fact. I refer to it, to demonstrate what are the principles upon which the action is founded. It is not founded upon the idea of a contract. In answer to the objection, that assumpsit would lie only upon a contract, express or implied, Lord Mansfield said, "If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiffs case, as if it were upon contract." Again: "One great benefit derived to a suitor from the nature of this action is, that be need not state the special circumstances from which he concludes that, ex aequo et bono, the money received by the defendant ought to be deemed belonging to him."

"The defendant, (says his Lordship, farther,) may defend himself by every thing which shows that the plaintiff, ex aequo et bono, is not entitled to the whole of his demand, or to any part of it." His summary is in the following words: "In one word, the gist of this action is, that the defendant, upon the circumstances of the case, is obliged, by the ties of natural justice and equity, to refund the money." In the language of the civilians, from whom Lord Mansfield borrowed many valuable principles, "Hoc natura æquum est neminem cum alterius detrimento. fieri...