McGoren v. Avery

• Decision Date: 19 June 1877
• Citation: 37 Mich. 120
• Court: Michigan Supreme Court
• Parties: William McGoren v. Noyes L. Avery and Wilder D. Stevens

37 Mich. 120

William McGoren v. Noyes L. Avery and Wilder D. Stevens

Supreme Court of Michigan

June 19, 1877

Argued June 12, 1877

Case made after judgment from the Superior Court of Grand Rapids. (Holmes, J.)

Assumpsit to recover money paid by mistake and without consideration. Defendant had judgment. Reversed.

Judgment reversed, and judgment entered for plaintiff for $ 160, with interest from January 27, 1874, and costs of both courts.

Reynolds & Harris and E. A. Maher (on brief) for plaintiff. Assumpsit for money had and received lies wherever the defendant has received money which in equity and good conscience he ought to pay over to the plaintiff (2 Greenl Ev., § 117; Moore v. Mandlebaum 8 Mich. 448) and is supported by proof that it was obtained through a mistake as to material facts (2 Greenl. Ev. § 123; 2 Sugden on Vendors [8th Am. ed.] 505, n. o.) or for a consideration which seems to be valuable but turns out to be worthless. 2 Greenl. Ev. § 121; 1 Pars. Cont. 462. Where claim of title is based on the pretended or supposed existence of certain facts, and the vendee purchases under the belief induced by the vendor's statements or conduct, that such facts exist, he may recover back the consideration given upon learning that they did not exist at the time of the purchase, and that he had therefore got no title. 2 Sugden on Vendors, [8th Am. ed.] 374; Bingham v. Bingham, 1 Ves. 126; Hitchcock v. Giddings 4 Price 135; Sanford v. Dodd 2 Day (Conn.) 437; Norton v. Marden 15 Me. 45; Martin v. McCormick 4 Seld. 331; Gardner v. Mayor 26 Barb. 423; Allen v. Hammond 11 Pet. 63; Taylor v. Fleet 4 Barb. 95; 1 Story's Eq. Jur. § 141 et seq.; Adams' Equity 188. Executors are personally liable on implied agreements based on a consideration moving to them as executors. Austin v. Munro 47 N.Y. 360 and cases cited; 1 Chitty's Pl. 205; Powell v. Graham 7 Taunt. 584; Jennings v. Newman 4 T. R. 347; Brigden v. Parkes 2 B. & P. 424; Trewinian v. Howell Cro. Eliz. 91; Hawkes v. Saunders 1 Cowp. 289.

Blair, Stone & Kingsley (on brief) for defendants.

OPINION

Campbell, J.

Suit was brought to recover back the consideration paid by plaintiff to defendants for a certificate of execution sale issued July 19, 1873, by the sheriff of Kent county, to Wilder D. Foster, now deceased, and assigned by defendants, who were his executors, to plaintiff, January 27, 1874, when the redemption had still about nine months to run.

This certificate purported on its face to have been issued on a sale made under execution upon a judgment of the circuit court for the county of Kent, rendered in favor of Foster, against one Truman H. Burch, whose lands were the subject of the levy and sale.

It turns out that no such judgment was ever in existence. The only evidence of it was a transcript of a justice's judgment between the same parties, which was filed in the clerk's office of Kent county without any affidavit required by the statutes to give it force as a circuit court judgment. The parties all acted in good faith and supposed the statements in the certificate to be true.

The defense is that although the certificate was void as based on no judgment, yet the purchaser was bound to look to the judgment himself, and bought at his own risk

There is certainly much ground for holding that in most cases where individuals purchase at public judicial sales, they do so at their own risk of the regularity of the title. And so where persons buy under a quit-claim deed the same result usually follows. But there are cases in which it has been recognized by the courts that money paid under a mutual mistake for that which has no legal existence or validity may be recovered back as paid without consideration, and it seems to us that the present case comes within the rule thus laid down in Martin v. McCormick 4 Seld. 331, and supported by other authorities there cited, as well as in 2 Sugden on Vendors 374.

The certificate in this case was issued to the judgment creditor named in it, and was sold by his personal representatives. It was open to redemption if valid, and if invalid the original justice's judgment still remained undischarged, and belonging to the estate. There was nothing in this assignment which purported to convey...