Ex parte Walter

• Decision Date: 08 April 1890
• Citation: 7 So. 400,89 Ala. 237
• Parties: IN RE WALTER ET AL.
• Court: Alabama Supreme Court

7 So. 400

89 Ala. 237

IN RE WALTER ET AL.

Supreme Court of Alabama

April 8, 1890

Application for mandamus.

In September, 1886, one May filed his bill against petitioners to enforce a vendor's lien, which was evidenced by two promissory notes held by May and executed by petitioners for the purchase of certain lands described in the bill. Pending the suit, petitioners filed their bill to compel said May and one D. S. Troy to interplead, and have adjudicated to which one of them petitioners should pay the amount due on the notes; the said Troy having bought the land in controversy at an execution sale. Upon submission of the cause to the chancellor, he decreed that May had a superior lien on the land, and a better claim to the purchase money than Troy. On rendition of this decree, petitioners paid the sum due on the notes to May. Subsequently Troy appealed the case to the supreme court, where the decree of the chancellor was reversed, and the cause remanded. 6 South. Rep. 54. Petitioners filed their petition to the chancellor praying him to order May to make restitution to them of the amount paid to him under his decree. The chancellor refused to grant the order, and petitioners now apply for a writ of mandamus to compel him to do so.

Roquemore, White & McKenzie, for petitioners.

Brinckel, Semple & Gunter, for respondent.

MCCLELLAN J.

We are unable to concur with counsel who appear against the application, that money paid on and in obedience to a decree of the chancery court can, in any case, be said to be paid voluntarily, in such sort as to preclude its recovery in the event of a reversal of the decree. We understand the law to be settled to the contrary. Cahaba v. Burnett, 34 Ala. 400, 407; Knox v. Abercrombie, 11 Ala. 997; Insurance Co. v. Stewart, 95 Ind. 588; Wright v Aldrich, 60 N.H. 161; Hollingsworth v. Stone, 90 Ind. 244; Scholey v. Halsey, 72 N.Y. 578; Hiler v. Hiler, 35 Ohio St. 645.

We can conceive of no case in which a party, who pays money on a decree which is subsequently reversed, is not entitled to have restitution of what he has paid, and to be thus reinstated in the position, and to all the rights he had prior to the rendition of the erroneous decree. It is not material what those rights were, or would probably, or even certainly and necessarily, be determined to be in the further progress of the litigation. He is entitled to have his final equities adjudicated while he yet occupies whatever vantage ground was his in the inception of the contest and from that standpoint to invoke the judgment of the law on the issues he presents.

When he asks, after the reversal of a decree, which has erroneously adjudged his rights and disturbed his relations in the case to have his original status restored, it is no answer to his petition to say that, on a final hearing of the cause, it will again be decreed that he pay that of which he now seeks restitution. To so hold would be to prejudge the case; to decide in advance of the submission of the issues on pleading and proof that the party who has been put at a disadvantage by the execution of a wrongful decree, though properly before the court, is not entitled to any relief in the cause. On the other hand, we are unable to see any predicate for the claim of the other party to retain what, confessedly, he has wrongfully received. He had no right to the money involved in the litigation, in contemplation of law, until there should be a correct determination of the matters in dispute, however clear his rights...