can a recovery be had, because the payee cannot convey a title to the premises, if the payor knew that he had no title when he paid the money (Vest v. Weir, 4 Blackf. [Ind.] 135); but if the parties suppose he has a title, when, in fact, he has not, a recovery may be had (Holbrook v. Holbrook, 30 Vt. 432); as in such a case the contract is a nullity. Pipkin v. James, 1 Humph. (Tenn.) 325. The same rule applies to contracts of all kinds, whether for real estate, personal property, services or for any purpose. Money paid in pursuance of a contract which is rescinded by the mutual consent of the parties, or by reason of the laches or default of the payee, may always be recovered back if the payor is not in default in any respect. But in order to recover, the rescission must be complete. It cannot be affirmed in part and rescinded in part, except by mutual consent (Miner v. Bradley, 22 Pick. 457); nor can it be recovered back if both parties are in default (Bales v. Weddle, 14 Ind. 349); nor if the contract still remains executory and open. Banks v. Adams, 23 Me. 259.

§ 24. Failure of title. Where money is paid for personal property in ignorance of the facts, the law implies a warranty of title, and if it turns out that the vendor had, in fact, no title, the money may be recovered back (Sanders v. Hamilton, 3 Dana [Ky.], 550; Stuart v. Wilkins, Doug. 17, 21; Phelps v. Conant, 30 Vt. 277; Dutricht v. Melchor, 1 Dall. [Penn.] 428); and the same rule applies where a person has entered into a contract to sell or has sold real estate to which he can give no title (Earle v. Bickford, 6 Allen, 549; Way v. Raymond, 16 Vt. 371; Dill v. Wareham, 7 Metc. 438; McLean v. Martin, 45 Mo. 393); except in cases where the purchaser knows the nature of his title or claim thereto, or where, without fraud on the vendor's part, the purchase simply involves a quit-claim deed. Soper v. Stevens, 14 Me. 133; Sheldon v. Harding, 44 Ill. 68; Clare v. Lamb, L. R., 10 C. P. 334; 12 Eng. Rep. 399; 23 W. R. 389. But, in order to warrant a recovery, the failure of title must be complete, so as to amount to a complete nullity. See p. 501, § 23; Earle v. Bickford, 6 Allen, 549. Where the purchaser knew the nature of the vendor's title at the time of purchase and there was no promise to perfect it, the money paid cannot be recovered back. Woodard v. Cowing, 13 Mass. 216; Soper v. Stevens, 14 Me. 133; Chapman v. Spellerr, 14 Q. B. 621; Jur. 652; Putenbaugh v. Winchester, 29 Ill. 194.

§ 25. Moral or equitable consideration. Where there is no fraud on the part of the payee, nor mistake in a matter of fact, money paid to one where there is no legal, but is in fact a moral obligation to pay it, cannot be recovered back. Lowry v. Bourdieu, Doug. 468; Andree v. Fletcher, 3 T. R. 266. The action is an equitable one, and the

rights of the parties are settled upon "equitable principles, therefore, whenever the defendant, upon equitable grounds, is entitled to retain the money, it cannot be recovered back. It is a liberal action, and will lie in all cases where ex æquo et bono the defendant ought to have refunded the money, and not otherwise. Morris v. Tarin, 1 Dall. (Penn.) 147; Jamison v. Ludlow, 3 La. Ann. 492; Foster v. Kirby, 31 Mo. 496; Farmer v. Arundel, 2 W. Bla. 824. Thus where money is paid upon a debt barred by the statute of limitations (Foster v. Kirby, 31 Mo. 496; Bize v. Dickason, 1 T. R. 285), or where he pays the balance of a debt that he had previously been discharged from by payment of a part of the amount due (Jamison v. Ludlow, 3 La. Ann. 492; Wilson v. Ray, 10 Ad. & El. 82), or where money is paid under a contract void under the statute of frauds, which the other offers to perform, the money cannot be recovered back, because, although there was no legal, yet there was a moral obligation to pay, and the law, applying the doctrines of strict equity between the parties, will not permit it to be recovered back (Marsh v. Wykoff, 10 Bosw. [N. Y.] 202; Congdon v. Perry, 13 Gray, 3; Bennett v. Phelps, 12 Minn. 327), and, generally, in all cases where, in equity and good conscience, the payor ought to have paid the money, he cannot recover it back, although, legally, he was under no obligations to pay it. Edgar v. Shields, 1 Grant's Cas. (Penn.) 361; New York v. Erben, 10 Bosw. (N. Y.) 189; Jackson v. Ferguson, 2 La. Ann. 723; Bize v. Dickason, 1 T. R. 285; Cartwright v. Rowley, 2 Esp. 723.

§ 26. Payments not credited or applied. Where money is paid upon a debt or obligation against the payor, and not credited to the payor thereon, and the claim is afterward sued and a judgment for the full amount recovered which is paid, the person paying it cannot maintain an action for the sums paid by him, but which were not credited. If he sets up such payments in defense, he is precluded, because the facts have been found against him; if he fails to do so, he waives the claim and is estopped from ever afterward setting up any legal claim thereto (Corey v. Gale, 13 Vt. 639; Weeks v. Thomas, 21 Me. 465; Loring v. Mansfield, 17 Mass. 394; Mitchell v. Sanford, 11 Ala. 695; Decker v. Adams, 28 N. J. Law, 511; Binck v. Wood, 43 Barb. 315; Hagar v. Springer, 60 Me. 436); and the same rule applies where a person, knowing that he has paid money upon a claim which the other refuses to indorse or deduct from the claim, pays the whole of it. In such case, the payment is treated as voluntary. Decker v. Adams, 28 N. J. Law, 511. In such case, he is bound to resist the double payment, which he may do by tendering the sum actually due and compelling the holder to bring an action thereon, or he may

at once and before payment of any part of the claim, upon the refusal of the holder to deduct the amount, sue for and recover back the sum paid, of the person to whom he paid it. Eastman v. Hodges, 1 D. Chip. (Vt.) 101. Of course, the payment of money upon a negotiable instrument before it is due, which is not indorsed by the

payee, where

the note is transferred to a bona fide holder before due, may be recovered back, as the defense of payment in such case could not be made. But in all cases where the payment could be insisted on in defense to an action upon the claim, a payment without a deduction of the amount precludes the payor from ever recovering it back (Loomis v. Pulver, 9 Johns. 214), and this is the case whether the payment extended to a part only, or the whole of the claim. Lewis v. Pulver, id.; Walker v. Ames, 2 Cow. 428; Fuller v. Shattuck, 13 Gray, 70; De Sylva v. Henry, 3 Port. (Ala.) 132; Tilton v. Gordon, 1 N. H. 33. But, where money is paid to a person for one purpose, and he applies it to another, or if he refuses to apply it to the purpose designated, the payor may, although it was given to him to apply upon a particular debt due to him, instantly upon such wrongful appropriation or refusal to apply it as directed sue for, and recover it back, and this is generally the safest measure to adopt. Eastman v. Hodges, 1 D. Chip. (Vt.) 101; Randolph v. Planters', etc., Bank, 7 Rich. (S. C.) 134; M'Nielly v. Richardson, 4 Cow. 607; Guthrie v. Hyatt, 1 Harr. (Del.) 446.

Money paid upon a mortgage, whether of real estate or personal property, cannot be recovered back, although the mortgagee afterward forecloses his mortgage and takes all the mortgaged property thereon. The defendant can only save his rights by payment of the full sum due. Fitch v. Coit, 1 Root (Conn.), 266; Morton v. Chandler, 6 Me. 142. Of course, the doctrine previously stated, as to a second paying of a claim that has once been paid, does not apply where the payment is induced by duress (Snowdon v. Davis, 1 Taunt. 359), or where the previous payment had been made by another, and the payor was ignorant of the fact, or where the payment was made by mistake, or in forgetfulness of the previous payment. Kelly v. Solari, 9 M. & W. 54; Lucas v. Worswick, 1 M. & Robt. 293.

§ 27. Payment upon award, judgment, execution, etc. When money has been paid under an award of arbitrators, fairly obtained (Bulkley v. Stewart, 1 Day [Conn.], 130; Homes v. Aery, 12 Mass. 134); or upon a valid judgment rendered by a court of competent jurisdiction, it cannot be recovered back so long as such judgment remains in force (Kirklin v. Brown, 4 Humph. [Tenn.] 174; Morton v. Chandler, 7 Me. 45; White v. Ward, 9 Johns. 232; Homer v. Fish, 1 Pick. 439; Gordon v. Mayor of Baltimore, 5 Gill [Md.], 231;

Holden v. Curtis, 2 N. H. 61; Binck v. Wood, 43 Barb. 315); and this is so, no matter how unjust the judgment may be, as where it is for the full amount of a claim, a part of which has been already paid (Footman v. Stetson, 32 Me. 17; Binck v. Wood, 43 Barb. 315; Hagar v. Springer, 60 Me. 436; Broughton v. McIntosh, 1 Ala. 103); and the same rule prevails as to money paid on foreign judgments. Rapelje v. Emory, 2 Dall. (Penn.) 231; Messier v. Amery, 1 Yates (Penn.), 533. The rule is not affected by the fact that the claim upon which the judgment was rendered was for property, the title to which has failed (Holden v. Curtis, 2 N. H. 61); or that it had in fact been previously paid. James v. Cavit, 2 Brev. (S. C.) 174. There must be some final determination of disputes, and the law, upon grounds of public policy, invariably treats all judgments of competent tribunals, regularly entered, as conclusive upon the rights of the parties, until reversed or set aside. Chace v. May, Brayt. (Vt.) 25; Carter v. Canterbury, 3 Conn. 461; Loring v. Mansfield, 17 Mass. 394; Cobb v. Curtis, 8 Johns. 470.

Where, however, a judgment has been in whole or in part paid, and the creditor levies execution for and collects the whole, the amount previously paid may be recovered back, as in such case the money is treated as having been paid over again by compulsion of legal process. Natchez Ins. Co. v: Helm, 21 Miss. 182; Hale v. Passmore, 4 Dana (Ky.), 70; Catterlin v. Somerville, 22 Ind. 482.

While a

§ 28. Payment of judgments afterward reversed. judgment is in full force, it is binding upon the parties, and its payment, whether voluntarily or by enforced collection, is conclusive upon the parties, but if, after payment, the judgment is reversed, the money paid may be recovered back in an action for money had and received (Williams v. Simmons, 22 Ala. 425; Duncan v. Kirkpatrick, 13 S. & R. [Penn.] 292; Maghee v. Kellogg, 24 Wend. 32; Jamaica v. Guilford, 2 D. Chip. [Vt.] 103; Glover v. Foote, 7 Blackf. [Ind.] 293); unless there are some equitable grounds upon which the judgment creditor is still entitled to retain it (Stewart v. Conner, 9 Ala. 803; Dupuy v. Roebuck, 7 id. 484); as where a judgment against a garnishee was reversed for a mere irregularity, and it appeared that the amount he paid thereon was justly due to the original defendant, and by him to the original plaintiff, it was held that it could not be recovered back. Duncan v. Ware, 5 Stew. & Port. (Ala.) 119. In the absence, however, of any such equitable grounds for its retention, it may be recovered back, even though a new trial is ordered, as the right of recovery dates from the reversal. Bank of Washington v. Neale, 4 Cr. (C. C.) 627.

Voc. IV.-64

§ 29. Illegal taxes, assessments, etc. An illegal tax, voluntarily paid, cannot be recovered back although paid under protest, unless the person to whom it was paid had authority to enforce its immediate payment. Allentown v. Saeger, 20 Penn. St. 421; Stickney v. Bangor, 30 Me. 404; Second Universalist Society v. Providence, 6 R. I. 235; Morris v. Mayor of Baltimore, 5 Gill (Md.), 244; Christy v. St. Louis, 20 Mo. 143; Lima v. Jenks, 20 Ind. 301; Sandford v. New York, 33 Barb. 147; Bucknall v. Story, 46 Cal. 589; 13 Am. Rep. 220; Bradford v. Chicago, 25 Ill. 411; Watson v. Princeton, 4 Meto. 599; Campbell v. New Orleans, 12 La. Ann. 34; State v. Powell, 44 Mo. 436; Claycomb v. McCoy, 48 Ill. 110; Lee v. Templeton, 6 Gray, 579. And this is so, even though he was, at the time when the tax was paid, not aware of its invalidity, unless its invalidity depended upon a certain state of facts of which the payor was not aware. Kraft v. Keokuk, 14 Iowa, 86; Goddard v. Seymour, 30 Conn. 394; Espy v. Fort Madison, 14 Iowa, 226; Kansas Pacific R. R. Co v. Wyandotte Co., 16 Kans. 587. But if taxes are paid to an officer having authority to enforce their payment immediately, the payment is not voluntary, and, if illegal, it may be recovered back. Bradford v. Chicago, 25 Ill. 411; Sandwich Glass Co. v. Boston, 4 Metc. 181; Joyner v. School District, 3 Cush. 567; Trumbull v. Campbell, 8 Ill. 502; Hendy v. Soule, Deady's C. C. 400; Hubbard v. Brainard, 35 Conn. 563. But, although the tax was illegal when paid, yet, if before a final judgment in an action to recover it back the tax is legalized, a recovery cannot be had. Hyde v. New Orleans, 11 La Ann. 191. When a tax is paid under a mistake of facts, as, where a tax levied upon land is paid by the mortgagor and afterward in ignorance of the fact is paid by the mortgagee, the mortgagor may recover it back. Pierce v. Duncan, 22 N. H. 18. When a tax is legal and valid but has been collected by proceedings that are irregular, the payor cannot recover the amount paid, because, the action being an equitable one, and, it being the duty of the tax payer to pay it without compulsion, it is equitable for the town, city or county to whom it was paid to retain it. Goddard v. Seymour, 30 Conn. 394. The same rules apply to assessments made upon property by municipal corporations. If they are paid voluntarily to one having no authority to enforce their immediate collection, they cannot be recovered back. Second Universalist Society v. Providence, 6 R. I. 235 ; Kansas Pacific R. R. Co. v. Wyandotte Co.,16 Kans.587. See ante,493, § 16. 30. Money received from third persons for plaintiff's use. Where a person, who has received money for the use of another, neglects or refuses to pay it over to his cestui que trust, the person entitled thereto may maintain an action against him as for money had and