Territory v. Newhall

• Decision Date: 25 August 1909
• Citation: 103 P. 982,15 N.M. 141,1909 -NMSC- 016
• Parties: TERRITORY v. NEWHALL et al.
• Court: New Mexico Supreme Court

103 P. 982

15 N.M. 141, 1909 -NMSC- 016

TERRITORY v. NEWHALL et al.

Supreme Court of New Mexico

August 25, 1909

Syllabus by the Court.

When the treasurer of a county in this territory retained a commission for the amounts collected by and paid to him by the sheriff of the county for gaming and liquor licenses under Laws 1901, p. 46, c. 19, and the board of county commissioners audited and approved the accounts of the treasurer, knowing all of the facts in the case, and allowed him to retain the commission under a mistake of law, there being no fraud or improper conduct on the part of the treasurer, the money so retained cannot be recovered back, as the same was a voluntary payment made under a mistake or in ignorance of the law.

Mistake of law is not ground for recovery of money paid.

Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.

Action by the Territory of New Mexico against Charles K. Newhall and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. M Hervey and F. W. Clancy, for the Territory. A. B. McMillen for appellees.

MILLS C.J. (after stating the facts as above).

In the decision of this case but a single point is involved, viz.: Can the territory recover the commissions paid to Newhall, he not being entitled to them, when the payments to him were made under a mistake of law, both plaintiff and defendants knowing all of the facts in the case?

There are only three grounds on which a suit can be maintained to recover back money paid, to wit, fraud, mistake, or duress. Lamborn v. County Commissioners, 97 U.S. 181, 24 L.Ed. 926. In the case at bar fraud or duress are not charged. Mistake, in order to be a ground of recovery, must be a mistake of fact, and not of law. Such at least is the general rule. Hunt v. Rhodes, 1 Pet. 1, 7 L. Ed. 27; Bible v. Lumley, 2 East, 183; 2 Smith Lead. Cases 398 (6th Ed.) 458, notes to Marriot v. Hampton. A voluntary payment, made with a full knowledge of all the facts and circumstances of the case, though made under a mistaken view of the law, cannot be revoked, and the money so paid cannot be recovered back. Clarke v. Dutcher, 9 Cow. (N. Y.) 674; Ege v. Koontz, 3 Pa. 109; Boston & Sandwich Glass Co. v. City of Boston, 4 Metc. (Mass.) 181; Benson v. Monroe, 7 Cush. (Mass.) 125, 54 Am. Dec. 716; Miles v. Duncan, 6 Barn. & Cres. 671; Lamborn v. County Commissioners, 97 U.S. 181, 24 L.Ed. 926; Elliott v. Swartwout, 10 Pet. 150, 9 L.Ed. 373. In a recent case in Missouri, decided as late as the year 1905, the Supreme Court of that state holds the law to be "that money paid through a mistake of fact may be recovered in an action for that purpose. *** But in all such cases the mistake must be one of fact, and not of law, for all persons are deemed to have notice of the law. *** The rule stated has been uniformly followed in this state in reference to all kinds of payments, including taxes, licenses, and claims, and the doctrine is firmly established that payments made with a full knowledge of all the facts constitute voluntary payments and cannot be recovered, and that mistake or ignorance of law gives no right to recover." American Brewing Company v. St. Louis, 187 Mo. 367, 86 S.W. 129. This case has been annotated in 2 Am. & Eng. Ann. Cas. 822, and in it a number of Missouri cases are cited in support of this legal proposition, which, in fact, seems to be the acknowledged law of the land. The rule as set out in 30 Cyc. 1313, is that: "Except when it is otherwise provided by statute, the general rule is that a voluntary payment made under a mistake or in ignorance of the law, but with full knowledge of all the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recovered back, and, in so far as this rule is concerned, there is no difference between ignorance and mistake of law. It applies to a corporation as well as to a natural person, and in equity as well as in law." A long line of authorities are quoted in support of this rule. ...