McMillan v. Vischer

         I. The payment was voluntary; and, therefore, there is no cause of action. The rule as to voluntary payments is so well settled, that a reference to authorities would seem unnecessary; but as Appellant has presented several, which he claims to be in point, we will refer the Court to such authorities as we think meet this case. Practice Act, (Secs. 230, 234,) provides for the manner in which redemptions are to be effected. It is the act of the redemptioner exclusively, and a mere tender is, by Section 233, made equal to payment.

         In Ex parte Raymond, (1 Denio, 375,) the Court say: " A party asking to acquire the rights of a purchaser under this statute, must take care to comply fully with its requirements.__ The papers in the hands of the Sheriff, showed what sum was required to be paid, to make a legal purchase of the land, and although the relator and his counsel were present, they were not bound to volunteer anything on the subject.__ The matters of fact were equally well known to all the parties, and as to the law, each would determine for himself, and act at his peril." (See Kelly & Wife v. Beers , 12 Mass. 389.)

         That this payment was, in all respects, voluntary, cannot be denied. The Sheriff had no power, and did not pretend to exert any over McMillan.

         It is suggested that the protest filed with Vischer after the money was paid over, may change the relations of the party. It is certain, that the protest cannot change a voluntary, into an involuntary payment; and, from the authorities we shall cite, it is equally clear, that it cannot have any effect upon the rights of the parties. (Benson v. Monroe, 7 Cush. 126; Peterborough v. Lancaster , 14 N.H. 382.)

         " When money is paid, with a full knowledge of the facts, or with the means of such knowledge, it cannot be recovered back on account of the payment having been made in ignorance of law." " When money is paid, it will be presumed to have been paid with a full knowledge of all the facts, in the absence of evidence to the contrary." (Fleetwood v. The City of New York, 2 Sandf. 475, 478.) We ask the attention of the Court to the learned argument in the opinion in this case. The opinion was delivered by Judge Sanford, and his opinion, apart from his argument, is entitled to great consideration. To the same effect are the following authorities: (Abell v. Donylan , 4 Denio, 305; Silliman v. Wing, 7 Hill, 159; Wyman v. Farnsworth, 3 Barb. 369; Supervisors of Onondaga v. Briggs, 2 Denio. 26; Mayor of Baltimore v. Lefferman, 4 Gill. 425; Ege v. Koontz, 3 Barr. 109; Roberson v. City Council of Charleston, 2 Rich. 317; Osborne v. Danvers, 6 Pick. 98; Caldwell v. Peden, 3 Watts, 327; Rawson v. Porter, 9 Greenl. 119.)

         The case of Silliman v. Wing, (7 Hill. 159,) is, in substance, the same.

         The cases cited by the counsel for Appellant are all, in their features, so distinctly different from the case at bar, that we do not feel justified in attempting a particular review.

         II. The second, third, fourth, and fifth, items excepted to, were properly charged. The third item is for the interest on the balance of the original indebtedness, as determined by the decree, and is as much a part of the original debt as the balance of the principal sum. The fourth item is the twenty per cent. added to the judgment or decree by this Court. For the relation of this item to the original decree, we will refer to Peyton v. Brooks, (3 Cranch, 92,) in which it was held, that damages and costs, awarded in the Appellate Court, became a part of the original judgment, that " the judgment opens to receive them." This was a question of costs; but it must be remembered, that according to the rule of the common law, all costs were damages, and they were awarded to the party wronged by litigation and delay, just as are the damages allowed by way of penalty by this Court. Originally, all costs were allowed by way of penalty, as well as damages. (Shay v. Tuolumne Water Co. 6 Cal. 286; Sizer v. Many, 16 How. 103.)

         In Reynolds v. Lammond, (3 John. 540, " it was contended, that the judgment for costs on the reversal, being subsequent to his enlistment, no execution could issue against the defendant." " Per curiam: The costs must be considered as referring back to the original judgment."

         In McMillan v. Richards et al. (9 Cal. 417,) the Court say of the protest, in this case: " The words, 'I protest,' whether made orally, or in writing, were not clogs upon the absolute dominion of the officer over the money. He could have paid the same to the purchasers immediately, or on the following day, or at any time during the week."

         If the defendant--Respondent--had dominion over the money then, when since, by what act, has he lost it? He was the agent of the person for whose benefit payment was made. He has paid over to him. He has done so under the direct instructions of this Court, as to the law of his position; and we cannot discover any case in the books, or any rule of law, which will justify a recovery against him, and compel him now to account for moneys paid to him on account of John G. Hyatt.

         JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.

         OPINION

          BALDWIN, Judge

         The plaintiff in this case sues the defendant, who was Sheriff of Marin County, for an excess of money paid by the plaintiff to him to redeem certain real estate once belonging to one Ozio, which property one Cary had bought under judgment against Ozio, and which the plaintiff had a statutory right to redeem. The payment was made under protest as to the excess.

         It is contended that this was a voluntary payment, and that the rule of volenti not fit injuria applies.

         If we conclude that the plaintiff, in order to save the property, which would otherwise have been lost, paid this excess of money, and that the redemptionee was not entitled to it, and that the Sheriff has no sort of claim to it, it would seem that the rule of law which gave it to the redemptionee or to the Sheriff, would be harsh and unjust. We do not regard this payment as compulsory. The case of McMillan v. Richards, (9 Cal. 368,) determines that question. The plaintiff was under no obligation to pay the money. It is true, he may have conceived it to be his interest to do so, but he was under no restraint. By the payment, he secured the property. But the Sheriff receiving the money, was acting under a limited statutory authority. He may be considered as the agent of the redemptionee in receiving this money. But he was agent only to the extent of his authority. He was authorized to receive so much money as the law prescribed for the redemption--no more, nor less. If he received less, he was not the agent of the redemptionee at all. The act would have been perfectly nugatory; the plaintiff could have recalled his money, and the redemptionee would have got the land free from any claim of the plaintiff. If he received more, the redemptionee was not entitled to it. The redemptionee gave him no authority to collect and hold for him any excess over the sum fixed by law for the redemption.

         In some of the States, the Clerk is authorized to receive money on judgments--as the Sheriff may on executions. If a defendant were to pay him more than the sum due, protesting against the excess, we apprehend the Clerk could not keep the excess. Or, if a Receiver in the Land Office should charge one dollar and fifty cents per acre for land entered, and the party desiring to secure his claim without further trouble, should pay it, protesting he only owed one dollar and twenty-five cents per acre, we presume that the Receiver would not be entitled to keep the money.          But the question may rest on other grounds. The Sheriff acts as the agent of the plaintiff and redemptionee. In receiving the money and giving the certificate to the redemptioner, he acts for him and as his agent. He was only authorized by the law to receive a given amount of money, but the plaintiff, knowing this, paid him more; but as only part of it was coming to the redemptionee, who had not authorized him to receive more than was due him, the plaintiff directs the Sheriff to hold that excess for him, and to his use. Such case is not different from that of a man giving another money to be applied to a particular purpose, and with directions to pay back to him the balance, if there should be any left, after fulfilling the purpose. In which event, the party receiving would have no pretense for holding on to all.

         We think that the Sheriff, as to this excess, was not the agent of the redemptionee at all; that it was not intended by the payor to make a gift to the officer, and that he has no title to it; therefore, he may be regarded as the bailee of the plaintiff, who may recover back the money on demand. There is no pretense that the Sheriff ever paid the money over to the redemptionee.

         2. The next question is as to the amount. By the 231st Section of the Practice Act, a redemptioner may redeem from a purchaser by paying eighteen per cent. thereon in addition to the bid. This was intended to cover the whole sum--except assessments and taxes--required, and there is no pretext for adding interest on the purchaser's bid. In this case, it was added, at the rate of ten per cent. per annum. There is as little ground for charging interest at five per cent. per month on the judgment of seven thousand four hundred dollars. If there was any excess in the original judgment over the amount of the purchase, such excess will draw five per cent. interest per month.

         The twenty per cent. damages on the appeal ordered by the Supreme Court were improperly added to the judgment below, the appeal having been taken by Randall alone to this Court. In Cary v. Ozio & Randall, the remittitur was upon a dismissal of the appeal. This made the Appellant responsible for these damages as on a judgment rendered by the Supreme Court, but they did not enter into, and form a part of, the original judgment appealed from. The Clerk below might issue execution for the costs of the appeal and these damages, but this would not enter into, or form a part of, the judgment below. Nor should damages be computed on the costs.

         Upon these principles, the Court below can enter the appropriate judgment, and the judgment is reversed and the cause is remanded for that purpose.