SAMUEL HAVEN vs. THOMAS FOSTER

Assumpsit for money had and received, and money paid. The parties stated a case. On the 19th of September, 1819, Andrew Craigie, of Cambridge in this Commonwealth, died there, intestate, seised in fee simple of certain land in the State of New York, and of real estate of greater value in Massachusetts, leaving his niece Elizabeth, the wife of the plaintiff, and his three nephews, Andrew Foster, John Foster, and the defendant, his heirs at law, the niece being the child of the intestate's sister Elizabeth, and the nephews the children of his sister Mary, and all four being children of the same father, Bossenger Foster.

In October 1819, administration upon the estate of Craigie was granted in this Commonwealth to his widow. No letters of administration were taken out in New York.

After the death of Craigie, the plaintiff and his wife, with Andrew and John Foster and the defendant, by their joint deed of release and quitclaim, dated November 17th, 1821, conveyed all their right to the greater part of the intestate's land in New York to Thomas Tufts, of Le Roy, in that State, for the consideration in fact of $24,540, Tufts well knowing the nature of the title he acquired by this purchase. The deed was executed and acknowledged at Cambridge, and by agreement of the parties was carried by the plaintiff to Albany in the State of New York, where, on December 1st, 1821, Tufts executed a bond of that date to each of the grantors, for one quarter part of the consideration of the deed, payable by certain instalments, with interest semiannually at the rate of seven per cent, the legal rate of interest in New York, which bonds were secured by four several mortgages, each of one undivided

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fourth part of the lands conveyed to Tufts. The deed and bonds were placed by the plaintiff, but without express authority from the other grantors, in the hands of J. V. Henry, a lawyer at Albany, with directions, upon the receipt of the mortgages executed and recorded, to transmit the deed to Tufts, and the bonds and mortgages to the respective obligees and mortgagees therein named. The bonds and mortgages were sent by Henry to the plaintiff, who delivered them to the several parties in whose names they were taken.

On the 9th of March, 1824, the whole amount of the bonds was paid to the obligees respectively, deducting from each the sum of $1875, which was left in the hands of Tufts for the purpose of paying, and with which he undertook to pay, a debt of $7500, due from Craigie's estate to Benjamin Lee: which debt arose out of a contract, dated April 19th, 1819, between Craigie and Lee, for the loan of $15,000 by Lee to Craigie, which Craigie was to receive from Lee progressively, as stated in the contract. This contract was accompanied by a note for $15,000 made by Craigie to Lee, secured by a mortgage of part of the lands released by Craigie's heirs to Tufts. Craigie received $4957 under this contract and the administratrix received $2235, which sums, with interest to June 15th, 1820, amounted to $7500; and by an agreement dated July 17th, 1820, the intended loan was reduced to that sum; which was to carry interest from June 15th, 1820. At the time when Tufts undertook to pay this debt, Lee's right of action on the note, against the administratrix, was barred by St. 1791, c. 28, limiting suits against administrators to four years. By an arrangement between the administratrix and the heirs of Craigie, made in September 1822, by virtue of which certain stock in this Commonwealth belonging to the intestate's estate came under the control and management of the heirs, it was stipulated, that among other claims the debt to Lee, of $7500, should be paid out of the proceeds of the stock when sold; but the sale not having been effected at the time when Tufts proposed to make the beforerecited payments to the plaintiff and John and Andrew Foster and the defendant, it was then further agreed between them and the administratrix, that the payment by them of the debt to Lee should have the same

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effect upon the rights of the parties in interest, as if it had been paid by her as administratrix, it not being then certain that the personal estate of the intestate would be sufficient to pay his debts. Tufts did not pay Lee any part of the debt, and in consequence of his neglect, Lee resorted to his remedy on his mortgage, and in pursuance of a decree in chancery in New York, satisfied the debt and costs by a sale of about half of the mortgaged premises. Before Lee obtained the decree, he had agreed with the plaintiff and John and Andrew Foster and the defendant, that for satisfaction of his debt, he would resort only to Tufts and the land mortgaged, and would refund the interest paid on the note by the administratrix subsequently to the provision made for the payment of the debt through Tufts, the plaintiff and John and Andrew Foster and the defendant agreeing that Lee might use the bond taken by them from Tufts for the payment of the debt to Lee, and the judgment recovered by them thereon against the surety; which bond, and a copy of the judgment, were, about three years after the 9th of March, 1824, transmitted to Lee; and his attorney, on receiving on the bond and judgment, from the executrix of the last will of the surety, the amount of interest refunded by Lee to the estate of Craigie, and the costs of the suit on the bond, released the judgment; and Lee never made any other use of the bond and judgment, before the same were so released. On the 9th of March, 1824, the defendant received from Tufts the sum of $5161.38, in full for the principal secured by his bond, and the interest thereon to the 6th of that month, and the further sum $19.12 for compound interest thereon, making in the whole the sum of $5180.50, after deducting $1875, as before mentioned. The sum received has not been productive during the whole time since the 9th of March, 1824, and the defendant has received thereon for interest to the 9th of October, 1828, only $999.18.

On the 29th of May, 1826, the plaintiff and his wife, with John and Andrew Foster and the defendant, by their joint deed of release and quitclaim of that date, conveyed all their right in another parcel of land in the State of New York, of which Craigie died seised in fee simple, to David Lane of

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Hudson in that State, a part ($950) of the consideration of which was paid on that day and divided equally between the plaintiff and John and Andrew Foster and the defendant; one fourth of which sum remains still in the defendant's hands.

The statute of New York of February 23d, 1786, regulating descents, was in force at the time of Craigie's decease, according to which the children of his two sisters took per stirpes and not per capita; but of this statute all the parties interested in the estate of Craigie were ignorant at the time of the transactions before recited.

If upon these facts the Court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for him for such sum as the Court should order; otherwise the plaintiff was to become nonsuit.

The case was argued in writing.

Metcalf, for the plaintiff. The statute of New York, and the judicial construction of it, show that the lands descended, one moiety to the plaintiff's wife, and the other moiety to her three brothers of the half blood; and of course, that upon a joint sale of the lands by the plaintiff and his wife, and her three brothers, the plaintiff was entitled to half the sum for which they were sold. Jackson v. Thurman, 6 Johns. R. 322; Reeve on Descents, 188.

Under a mutual ignorance of that statute the avails of the lands were divided into four equal parts. The plaintiff requires the defendant to restore to him what he has lost, and what the defendant has gained, by the mistake under which they acted.

It appears that at the time when Tufts paid the bonds, the sum due on each was $7055.50, the defendant having, after deducting $1875 towards Lee's debt, received $5180.50, which two sums amount to $7055.50. This sum then, with interest since March 9th, 1824, is what the plaintiff has lost by the mistake respecting his rights, and he asks for judgment against the defendant for one third of this sum, to wit, $2351.83, with interest.

Craigie's heirs transferred all their right in the lands described in the deed to Tufts, and Tufts, knowing he received an

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equity of redemption, took the risk of Lee's debt being paid by the administratrix of Craigie. She was not a party to the bargain between Tufts and the heirs. She had her appropriate duties, one of which was the application of the intestate's personal property to the discharge of his debt. Not having funds at command when Tufts paid the bonds, she made an agreement with the heirs, (who were desirous to facilitate the settlement of the estate,) that they should advance the money to pay Lee's debt, she to account with them on a final settlement and distribution of the personal property between her and them. Each heir intended to furnish one fourth part of the sum required. The debt to Lee was thus in effect paid by the administratrix, and would have been so in form, if Tufts had not caused it to be otherwise. It turns out, that one half of the fund being the plaintiff's, he advanced one half of the sum placed in the hands of Tufts to pay Lee's debt, instead of one fourth, as was intended.

The plaintiff claims also $79.16, being one third of the sum received by the defendant on the sale of lands to Lane, with interest from May 29th, 1826.

It may perhaps be objected to the plaintiff's recovery, that money paid under an ignorance of the law, the facts being known, cannot be reclaimed by suit.

In the first place, we say the money claimed in this suit was never paid to the defendant by the plaintiff. It never came into the plaintiff's hands.

Nor, in the second place, did it come into the defendant's hands, by the plaintiff's consent, under a claim of right by the defendant. Brisbane v. Dacres, 5 Taunt. 143.

Again; the plaintiff does not admit that money paid, even under a claim of right, (unless by compromise,) cannot be reclaimed by suit in this State, if it was paid under a mistake or ignorance of the law. In May v. Coffin, 4 Mass. 342, Warder v. Tucker, 7 Mass. 452, and Freeman v. Boynton, ibid. 488, it was decided, that "ignorance of the law shall not bind a party to fulfil an engagement made through mistake of the law." That the law may be consistent, it would seem to follow, that money paid under similar ignorance may be recovered back.

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Admitting, for the sake of argument, that by the English law, money so paid cannot be reclaimed by suit, yet a promise to pay is also there enforced at law, though made in ignorance of the law. Stevens v. Lynch, 12 East, 38; S. C. 2 Campb. 332. It is not however conceded, that the English law is settled against the recovery of money paid under a misapprehension of the law. Lansdown v. Lansdown, Moseley, 364; Evans's Essays, c. 1, § 1; Evans's Pothier, Appendix, No. 18, and the quotations from Vinnius and D'Aguesseau; Vinnius's Commentary on Inst. bk. 3, tit. 28, § 6; Dew v. Parsons, 2 Barn. & Ald. 562.

Finally, it was a foreign law, a statute of New York, of which the parties were ignorant, and therefore the doctrine before considered is not applicable to this case. Foreign laws are facts, and are to be proved as facts. 2 Stark. Ev. 568.

Those writers on the civil law, who hold that ignorance of the law is not a cause of repetition, still except minors, women, soldiers, &c. from the rigorous operation of this rule, on the ground that for them "jus ignorare licet." Surely then even professional men may be excused for ignorance of the statute law of other countries and states. Heinecc. ad Pand. lib. 22, tit. 6, § 147. "Juris ignorantia est, cum jus nostrum ignoramus." Corvin. Dig. per Aphorismos, lib. 22, § 6. Domat's Civ. Law, pt. 1, bk. 1, tit. 18, § 2, art. 14, 15, 16, is applicable to the plaintiff's claim.

If it is objected to this claim, or any part of it, that the plaintiff was bound to pay half the incumbrance on the land, because half the land descended to his wife, the answer is, that the heir is entitled to the assistance of the personal property of the mortgager for the purpose of redeeming. The personal property received the benefit of the loan from Lee; the land was only a pledge. Bac. Abr. Executors, &c. L 2, and Mortgage, E 1.

Besides, for a part of the sum due to Lee, the land could not be charged on the mortgage, for it was received of Lee by the administratrix.

Again, the whole course of proceedings by the heirs and administratrix shows that neither party regarded the mortgage as a charge on the lands mortgaged, or intended that the lands should come to the heirs subject, as between them and the widow, to redemption by the funds of the heirs only.

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That a suit against the administratrix on Lee's note was barred by the St. 1791, c. 28, forms no valid objection to the plaintiff's claim. That statute was designed for the benefit of heirs; and all the heirs, in this case, agreed to the payment of Lee's claim by the administratrix, and in effect lent her the money for that purpose, saving all their relative rights. Had the administratrix driven Lee to resort only to the land, she would have subjected herself to a suit by the injured heirs.

On that part of the sum claimed which may be considered as money laid out and advanced for the defendant, namely, the plaintiff's extra advance towards the discharge of the debt to Lee, interest is recoverable from the time of advancing the money. 5 Bos. and Pul. (Day's ed.) 205, note; Hosmer v. Barrett, 2 Root 156; Shipman v. Miller ibid. 405;Dilworth v. Sinderling, 1 Binney, 488; Rapelie v. Emory, 1 Dallas, 349; Gibbs v. Bryant, 1 Pick. 118.

The plaintiff claims interest, however, on the whole sum which is properly recoverable on the count for money had and received, as well as on the sum last mentioned, from the day the defendant received it.

The defendant has employed the money received from Tufts on the bond made to him, as active capital. 2 Stark. Ev. 789; Francis's Maxims, (Hening's ed.) 95; Jones v. Williams, 2 Call's R. 106;Fox v. Wilcocks, 1 Binney, 194. See also Pease v. Barber, 3 Caines's R. 266; 15 East, 230, note by Day; Treves v. Townsend, 1 Cox's R. 50, and American editor's note.

A. Hilliard, for the defendant. As the plaintiff and his wife joined in the sales and conveyances to Tufts and Lane, and agreed to the equal division of the proceeds among the heirs of Craigie, the burden is on the plaintiff to show a sufficient legal cause for maintaining this action in opposition to his agreement.

The law of nature, the civil law, and our own law, favor equality among heirs related in the same degree to the person from whom the property is derived. Carpz. Definitiones Forenses, pt. 3, c. 11, d. 12, n. 3; 1 Domat's Civ. Law, (by Strahan,) 538, bk. 1, tit. 1, § 1, art. 20; Cod. Fabr. l. 3, t. 27, def. 3, 19, 20; Frank v. Frank, 1 Chan. Cas. 84; Cann v. Cann, 1 P. Wms. 723.

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The plaintiff's ignorance of the statute of New York was owing to gross negligence. He was acquainted with all the facts, when the agreement was made; he is moreover a man of legal science, and must have known that the State of New York had a law of descent and distribution; and it is a rule of our own law, that the lex loci rei sitoe universally governs the title to real estate; or if he was ignorant of these things, the law will not allow him to derive advantage from such ignorance. Cod. Fabr. p. 40, def. 51, § 8,--p. 1076, def. 12, § 4,--p. 169, def. 15; Carpz. Definit. For. pt. 2, c. 28, d. 21, n. 5; 1 Domat's Civ. Law, (by Strah.) 237, pt. 1, bk. 1, tit. 18, § 1, art. 9. The plaintiff's ignorance was confined to the peculiar canons of descent in New York; he knew enough to make it his duty to inquire what were those canons. Had he acted as agent or trustee in these transactions, he would have been liable, on the ground of negligence, to his principal or cestui que trust, for the losses in question.

In support of the foregoing remarks, and to show that neither ignorance of law nor ignorance of fact, if owing to negligence, can excuse a person from the legal obligation to perform his contract, or enable him to recover back money which he has paid in discharge of it, Hilliard cited the following authorities. Mollenb. Thes. Jur. Civ. p. 209, n. 30,--p. 547, n. 82,-- p. 134,--p. 237, n. 24,--p. 546; Carpz. Defin. Forens. pt. 2, c. 50, d. 3, n. 5; Cod. Fabr. p. 57, def. 17, § 5,-- p. 897, def. 2, § 15; Calv. Jur. Lex. tom. 1, p. 713,--p. 565; Heinecc. ad Pand. lib. 22, tit. 6, § 146; Struvii Syntag. pt. 2, p. 300, exerc. 28, lib. 22, tit. 6, th. 59, 60,-- p. 163, exerc. 27, lib. 22, tit. 1, th. 69.

In reference to the cases in which even a court of equity will not relieve on the ground of mistake, he cited 1 Madd. Pr (N. York ed. 1819,) 61, 62, 63, 64; 1 Fonbl. 116, note; Com. Dig. Chancery, 3 F 3, 3 F 4, 3 F 8, 3 F 9, 3 W, 4 D 22; 2 Eq. Cas. Abr. 162, pl. 19, p. 477, pl. 1; Lyon v. Richmond, 2 Johns. Ch. R. 51; Hunt v. Rousmanier, 8 Wheat. 174; S. C. 1 Peters, 15;Frank v. Frank, 1 Chan. Cas. 84; Cann v. Cann, 1 P. Wms. 723; Pullen v. Ready, 2 Atk. 591, 592.

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The statute of New York must be viewed as a law, and not as a fact, in relation to the plaintiff's ignorance of it. Ignorance of law consists in not knowing what a law prescribes. 1 Domat's Civ. Law, (by Strah.) 236, pt. 1, tit. 18, § 1, art. 2, 4. A person may know the existence of a law, or system of laws, as a fact, and yet be ignorant of both in the character of laws, not knowing what either prescribes. The plaintiff must have known the existence of such a statute as a fact, and his ignorance of the peculiar rule of the statute, is ignorance of law. The plaintiff founds his title upon that statute as a law and it is only as a law that it can be valuable to him. So far as a citizen of Massachusetts claims a title to real estate under the law of another government, he makes it his law, and he is bound to know it. The manner of proving a statute of another of the United States, has no tendency, in this case, to show that it is a mere fact. It is required to be proved as a law, and when proved, to operate as a law. 2 Stark. Ev. (by Metcalf,) 568, 569, and notes; 1 Domat's Civ. Law, (by Strah.) 238, pt. 1, bk. 1, tit. 18, § 1, art. 14, and note, and art. 16.

Ignorance of law not arising from any fault or culpable negligence, if the party knows the facts, or has the means of knowing them, does not enable him to recover back money paid in execution of his contract. 4 Tucker's Bl. Com. 27; Chit. Contr. 190; 2 Stark. Ev. (Metcalf's ed.) 112; 2 Com. Contr. (Amer. ed.) 40, 41; Esp. N. P. (N. York ed. 1811,) pt. 1, p. 5, 6, 192; 1 Fonbl. Eq. 118, note; 1 Madd. Pr (N. York ed.) 61; 1 Evans's Poth. 523, 524, § 800; Chit. on Bills, (Philad. ed. 1826,) 236, notes r, s, t; Battle v. Griffin, 4 Pick. 17; Bilbie v. Lumley, 2 East, (Day's ed.) 469; Stevens v. Lynch, 12 East, 38. and note;Lundie v. Robertson, 7 East, 236, note;Gomery v. Bond, 3 Maule & Selw. 378; Brisbane v. Dacres, 5 Taunt. 144; E. I. Co. v. Tritton, 3 Barn. & Cressw. 280;2 Johns. Ch. R. 51; 8 Wheat. 174; 1 Peters, 15; Ladd v. Kenney, 2 N.H. 340; Dig. lib. 22, tit. 6, l. 2, 3, 4, 6, 9; Cod. lib. 1, tit. 18, l. 2, 3, 7, 10, 11, 12; Carpz. Defin. Forens. pt. 3, c. 15, d. 42, n. 8, and pt. 2, c. 28, d. 20, n. 4, 5; 1 Calv. Jur. Lex. 408, 713; Heinec. Elem. Jur. lib. 3, tit. 28, § 987, 988, 989, 991, 992; Heinec. ad Pand. lib. 22, tit. 6, § 145, 146, 147; Mollenb. Thes. Jur. tit. 6, p. 973, 974, note 4, -- p. 33, note 32, -- lib. 12, tit. 6, p. 493, note 47; Corvin. Jurisp. Rom. Summarium, lib. 1, tit. 18.

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The facts in the case will support the defendant in making the following points; either of which is sufficient to defeat this action.

1. The action is not adapted to the facts stated, nor to the plaintiff's object. The object of the action is, 1. to try the title to real estate, or to make partition of it, or both; or 2. to correct a supposed mistake between the plaintiff and Tufts, and the plaintiff and Lane, when the heirs conveyed to them respectively; and to decide that there was such mistake necessarily involves a decision on the title to the lands. 1 Chit. Pl. (Am. ed. 1809,) 341, and note a; 2 Com. Contr. 518; Peake's Ev. 242; Woodf. Landl. and Ten. (N. York ed. 1816,) 352; 2 Stark. Ev. 110, 111; 1 Dane's Abr. 184, c. 9, art. 11, § 3; 1 Esp. N. P. (N. York ed. 1811,) 193; Allen v. Thayer, 17 Mass. 29.

2. This is a case of the sale of lands and a conveyance of them by release and quitclaim; and in such a case a mistake like that on which the plaintiff founds his claim, cannot be corrected in this kind of action, or any other, in a court of law. Pearson v. Lord, 6 Mass. 81; Howes v. Barker, 3 Johns. R. 506.

3. The claim in this action is in contravention of the plaintiff's own deliberate agreements, confirmed by his subsequent acts, which agreements were made with a full knowledge of the facts, and with the means of knowing the law. See authorities before cited.

4. If the plaintiff had a right to or intended to claim half of the lands, his duty to the other heirs required him to make the claim at the time when the sales were effected and the proceeds divided; but having neglected to do so, he has waived his right and is estopped to claim a greater share of the lands. Chit. Contr. (Am. ed.) 190, 192, 194; 1 Esp. N. P. (N. York ed. 1811,) pt. 1, p. 5, 6, 192; 2 Stark. Ev. (Am. ed.) 113;Loomis v. Pulver, 9 Johns. R. 244; Canfield v. Monger, 12 Johns. R. 347; Bazen v. Roget, 3 Johns. Cas. 87; 2 Eq. Cas. Abr. 162, pl. 19, note d,--pl. 15, note a; Madd. Pr (N. York ed.) 64, 172; Hastings v. Wiswall, 8 Mass. 455.

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5. The plaintiff has not, nor at any time has he had, any right to the money received by the defendant of Tufts and Lane respectively.

6. No part of that money came to the defendant's hands by the act of the plaintiff, or at his request, or for his use, or by his procurement, or as the plaintiff's property.

7. The defendant received the money as his own property; as the price of his own share of the lands, and according to the agreement of the plaintiff.

8. The defendant never consented to receive any part of the money for the plaintiff's use, but Tufts and Lane respectively understood, that they paid the money for the defendant's share of the lands, and to the defendant's own use; and so the plaintiff and the defendant understood it.

In remarking upon these last four points, he said that if there was any mistake in regard to the defendant's share of the lands, it took place between the plaintiff and the purchaser, and if it could be corrected, it must be in some proceeding by the plaintiff against the purchaser.

9. If the facts stated leave doubtful any thing which is necessary to support the plaintiff's action, that is sufficient for the defendant.

10. The defendant has in equity and good conscience a right to retain all the money received by him. He founds his right on the equal relationship of all the heirs to the intestate; the fairly presumed intention of the intestate to have them take equally; the plaintiff's legal waiver and equitable forfeiture of his supposed right, by his own negligence; on the fact, that the defendant's share was worth to him all the money he received for it, and he would not have sold it for a less sum, and that he cannot now be restored to his former title to the lands.

11. If the plaintiff has now a right to half of the value of the lands, he is bound in law and equity to pay half of the money advanced by the heirs to pay the debt to Lee. Taylor v. Porter, 7 Mass. 358. The remedy of Lee against the personal estate of the intestate was barred by St. 1791, c. 28, and the debt remained a charge only upon these lands.

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In equity, only so much of the value of the mortgaged lands as was not necessary to pay off the mortgage, can be considered to have descended to the heirs.

12. If the plaintiff has a right to recover any thing of the defendant, he has no right to recover interest; or, at most, only from the date of the writ; and the defendant should be indemnified for his labor, risk and expenses in making the money productive, and for his expenses in other respects, caused by the neglect of the plaintiff. 1 Chit. Pl. (Am. ed. 1809,) 342; 2 Stark. Ev. 108; Bull. N. P. 131; Lindon v. Hooper, Cowp. 419;Birch v. Wright, 1 T. R. 387; 1 Dane's Abr. 186, c. 9, art 12, § 7; Chit. Contr. 188; 1 Esp. N. P. (N. York ed. 1811,) 7; Jacobs v. Adams, 1 Dallas, 52; Tappenden v. Randall, 2 Bos. & Pul. 467;Dale v. Sollet, 4 Burr. 2133; 2 Com. Contr. 3, 52, 53, 122.

13. The plaintiff's supposed mistake would not entitle him to relief in a court of equity, as before stated, and therefore a court of law will not sustain this action.

Stearns, on the same side, said it can make no difference in favor of the plaintiff, that he conveyed the land to a stranger, with an express agreement that the security should be given and the money paid by him to the defendant, instead of the consideration being paid to the plaintiff and by him handed over to the defendant.

If the defendant did not receive the money under a claim of right, it was because, from the circumstances of the case, the defendant's right was not and could not be called in question; which is as favorable for him as if the plaintiff had at first resisted and then yielded, however reluctantly, to the defendant's claim.

The cases of May v. Coffin, 4 Mass. 347, Warden v. Tucker, 7 Mass. 452, and Freeman v. Boynton, ibid. 488, which were cited to show that ignorance of the law shall not bind a party to fulfil an engagement made through mistake of the law, were actions against the indorser of a negotiable note, and the question was whether the laches of the holder had not been waived by the indorser; and the Court had no intention to lay down general principles applicable to cases not arising

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under the law merchant. But admitting that an executory contract made through mistake of law would not be enforced, it by no means follows, that money voluntarily relinquished or paid to another through ignorance of the law, can be reclaimed. There are many cases, as well in the common as the civil law, which are governed by the maxim, potior est conditio defendentis. Dig. lib. 50, tit. 17, l. 42, 125, 126, 128; Heinec. ad Pand. lib. 22, tit. 6, § 146, in not. As to the case cited from Moseley, 364, see 1 Peters, 15.

Metcalf, in reply. The defendant's counsel argue, that if the plaintiff has made an agreement in ignorance of its legal operation, he shall not be allowed to avoid its consequences by alleging his ignorance of the law. But no agreement is shown between the plaintiff and the defendant in regard to the avails of the lands sold to Tufts and Lane. It was never a subject of contemplation by these parties, that they were interested in the lands in unequal proportions, or that there was more than one mode of apportioning the consideration money. An assent of minds is necessary to constitute an agreement, and there can be no mental operation respecting a subject never presented to the mind.

The negligence imputed to the plaintiff attaches no less to the defendant. The statute of New York affected his rights as much as the plaintiff's. If the plaintiff is to be censured and mulcted for his ignorance, why is the defendant to receive or retain the mulct, when he is under the same condemnation. If knowledge was the duty of the plaintiff, ignorance was the crime of the defendant.

The title to the estate sold to Tufts and Lee is agreed by the statement of the case. The objection then that this is an action to try title, is unfounded.

The objection that the consideration of a quitclaim conveyance cannot be recovered back, might be made to a suit by the purchaser, but it is inapplicable between these parties.

With respect to the mortgage to Lee, the fund which received the benefit of the loan is to be resorted to for its discharge. That fund was the personalty of the intestate, in this Commonwealth. Had that personalty been deficient, the lands in this Commonwealth must have been sold to discharge the

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mortgage, or (what is the same in effect) the debt to Lee. If the administratrix had suffered Lee to resort only to the mortgaged premises, she would have been liable to the heirs for a devastavit, and the plaintiff and his wife would have been entitled to twice the amount of damages which the defendant could have received, because their injury would have been double the amount of his. It is not readily discerned how the mutual agreement of the heirs to pay that debt can be at all affected in its legal operation by the statute limiting the claim on the administratrix to four years. The true ground of decision on this point is, that all the heirs (for whose benefit alone the statute operates) consented that Lee's debts should be paid from the personal property, if that should prove sufficient, although the four years had elapsed. That property has proved to be sufficient. It being supposed that the heirs were equally interested, it appeared to make no difference to them out of what fund the debt to Lee was paid, excepting as between them and the administratrix. The express agreement between the heirs and the administratrix, that their rights should not be affected by the advance made to pay the debt, conclusively shows in what light they then regarded the transaction. And according to the doctrine for which the defendant contends, and which the plaintiff does not gainsay, the defendant cannot now defend on the ground of his mistaking the legal effect of the agreement which he then made.

The opinion of the Court was drawn up by

MORTON, J. [After stating some of the facts.] By the statute of distributions of this State these heirs, standing in the same degree of relationship to the intestate, inherited his estate in equal proportions. But by the statute of New York, which carries the doctrine of representation farther than the law of this State, or indeed than the civil or common law, these heirs inherited per stirpes and not per capita. So that the estate in New York descended, one half to the wife of the plaintiff, and the other half to the defendant and his two brothers; being one sixth instead of one quarter to each.

Of the provisions and even existence of this statute, all the heirs were entirely ignorant during the whole of the transactions stated in the case. The plaintiff having discovered

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the mistake, now seeks by this action to reclaim of the defendant one third of the amount received by him on account of the sale of the New York lands, with interest from the time of its receipt. And the question now submitted to our decision is, whether he is entitled to a repetition of the whole or any part of this amount.

Had the parties been informed of their respective rights under the laws of New York, it cannot be doubted that the plaintiff would have retained one moiety of the land in that State, or would have received to himself one half of the consideration for which it was sold. The distribution of the avails of the sale was made by the heirs upon the confident though mistaken supposition, that they were equally entitled to them. They acted in good faith, upon a full conviction that they were equal owners of the estate. It turned out, however, to the surprise of all of them, that they owned the estate in very unequal proportions, and that the defendant and his brothers had received not only the price of their own estate, but also the price of a part of the plaintiff's estate.

Equity would therefore seem to require, that the defendant should restore to the plaintiff the amount received for the plaintiff's estate. It was received by mistake, and but for the mistake would not have come to the defendant's hands. If the whole estate had been owned by the plaintiff, and the defendant, having no interest in it, had received the whole consideration, the equitable right of repetition would have been no stronger; it might have been more manifest.

The suggestion that the provisions of the New York statute are in themselves inequitable, is no answer to this view of the case. Whether the law of descent in that State is more or less reasonable and just than ours, it is neither our province nor desire to inquire. All statutes regulating the descent and distributions of intestate estate may be considered as positive, and in some degree, arbitrary rules. And when a person, by inheritance or purchase, becomes lawfully seised of any estate without fraud or fault on his part, it would be as inconsistent with sound ethics, as with sound law, to devest him of it because the rule of law by which he held it was deemed unreasonable. And if, by accident or mistake, another should get possession, it is not easy to see upon what principle he would be justified in retaining it.

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In the case at bar, the division of the consideration money was made by the agreement of all the parties interested. The defendant received the money with the plaintiff's consent. But it was an implied, rather than express agreement.

The defendant also received the money under a claim of right. The defendant believed himself to be legally and equitably entitled to one quarter part of the proceeds of the sale. And under this belief he claimed it as being rightfully due to him, and the plaintiff, under the influence of the same belief, assented to the justice of the claim, and agreed to the equal distribution which was made.

It was not however paid to the defendant by way of compromise. No controversy existed between the parties. There was not even a difference of opinion between them in relation to their respective purparties in the estate before it was sold, or to the apportionment of the avails after the sale. There was therefore no room for concession on the one side or the other and nothing between them which could be the subject of compromise.

Nor do the facts furnish any ground to presume that the plaintiff intended to grant any thing to the defendant, or to yield any of his legal rights. Nemo presumitur donare. And we have no reason to believe that the plaintiff intended to give away any part of his own property, or his wife's inheritance.

The mistake in the distribution of the consideration money for which the land was sold, arose from the mutual ignorance of the law of descents in New York. Can this mistake be corrected and the plaintiff be restored to the rights which he had under this statute?

It is in the first place objected, that the plaintiff's ignorance was owing to his own negligence; that he shall not be allowed to take advantage of his own laches; that what a man may learn with proper diligence, he shall be presumed to know; and that against mistakes arising from negligence, even a court of equity will not relieve.

In all civil and criminal proceedings every man is presumed to know the law of the land, and whenever it is a man's duty

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to acquaint himself with facts, he shall be presumed to know them. But this doctrine does not apply to the present case. It was not the duty of the plaintiff to know the laws of New York, nor does ignorance of them imply negligence. Knowledge cannot be imputed to the plaintiff, and it is expressly agreed that he, as well as the defendant, was entirely ignorant of the statute of New York. Besides, it was as much the duty of the defendant as of the plaintiff, to be acquainted with the laws of New York. And if either is guilty of negligence, both are, in this respect, in pari delicto.

The objection that the title to real estate cannot be tried in this form of action, cannot avail the defendant; because it seems to us very clear, that no title is or can be drawn in question, in the present case.

The principal objection to the plaintiff's recovery, and the one most relied upon by the defendant's counsel, is, that the payment to the defendant was made through misapprehension of the law, and therefore that the money cannot be reclaimed.

It is alleged, that to allow the plaintiff to recover in the present action, would be to disregard the common presumption of a knowledge of the law, and to violate the wholesome and necessary maxim Ignorantia juris quod quisque tenetur scire, neminem excusat. This objection has been stronglyurged by the defendant's counsel, and learnedly and elaborately discussed by the counsel on both sides. It is believed that all the authorities applicable on the point, from the civil as well as the commonlaw, have been brought before the Court.

Whether money paid through ignorance of the law can be recovered back, is a question much vexed and involved in no inconsiderable perplexity. We do not court the investigation of it, and before attempting its solution, it may be well to ascertain, whether it is necessary to the decision of the case before us.

That a mistake in fact is a ground of repetition is too clear and too well settled to require argument or authority in its support.

The misapprehension or ignorance of the parties to this suit, related to a statute of the State of New York. Is this, in the present question, to be considered fact or law?

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The existence of any foreign law must be proved by evidence showing what it is. And there is no legal presumption that the law of a foreign state is the same as it is here. 2 Stark. Ev. (Metcalf's ed.) 568; Male v. Roberts, 3 Esp. Rep. 163. If a foreign law is unwritten, it may be proved by parol evidence; but if written, it must be proved by documentary evidence. Kenny v. Clarkson, 1 Johns. R. 385; Frith v. Sprague , 14 Mass. 455; Consequa v. Willings, 1 Peters's Circ. C. R. 229. The laws of other States in the Union are in these respects foreign laws. Raynham v. Canton, 3 Pick. 293.

The courts of this State are not presumed to know the laws of other States or foreign nations, nor can they take judicial cognizance of them, till they are legally proved before them. But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation, as the laws of this State.

That the lex loci rei sitoe must govern the descent of real estate, is a principle of our law, with which every one is presumed to be acquainted. But what the lex loci is the Court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seised of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are? If the judicial tribunals are not presumed to know, why should private citizens be? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by private individuals have the same effect upon their acts as ignorance of other facts? Juris ignorantia est, cum jus nostrum ignoramus, and does not extend to foreign laws or the statutes of other states.

We are of opinion, that in relation to the question now before us, the statute of New York is to be considered as a fact, the ignorance of which may be ground of repetition. And whether ignorantia legis furnishes a similar ground of repetition, either by the civil law, the law of England, or the law of this Commonwealth, it is not necessary for us to determine The examination, comparison and reconciliation of all the conflicting dicta and authorities on this much discussed question

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is a labor which we have neither leisure nor inclination to undertake.

In the view which we have taken of this case, it appears that the defendant received a part of the consideration for which the plaintiff's estate was sold; that it was received by mistake; and that this mistake was in a matter of fact. He therefore has in his hands money which ex aequo et bono he is bound to repay, and there is no principle of law which interposes to prevent the recovery of it out of his hands.

The action for money had and received, which for its equitable properties is ever viewed with favor, is the proper remedy for its repetition. The mode in which the payment was originally secured by bond and mortgage, forms no objection to the recovery, inasmuch as the money was in fact paid before theaction was commenced. The plaintiff's remedy will extend to all the money actually received by the defendant beyond his legal proportion of the estate. Whether it shall extend further, is a question involved in some difficulty.

The estate in New York, at the decease of the intestate, was under mortgage. This mortgage was satisfied from the estate itself, and the amount thus paid deducted from the consideration money. The plaintiff now contends that this incumbrance ought to have been removed by a payment from the personal estate, or if that was insufficient, from the real estate in this Commonwealth.

In the consideration of this question, it must not be forgotten that the plaintiff can recover only what in equity and good conscience is due to him. What descended to the heirs in NewYork? The estate there, not free from all incumbrances, but with this mortgage upon it. Did equity require that the defendant and his brothers should advance three fourths of the money to pay off this mortgage, that the plaintiff might have one half the estate increased in value by this payment?

The mortgagee relied entirely upon his lien on the estate, otherwise he would have demanded payment of the administratrix, and sought a remedy against her upon the personal security of the intestate. This he omitted to do until the claim was barred by the statute of 1791, c. 28. The only sure remedy then remaining was upon his mortgage. This remedy he resorted to, and obtained from the land mortgaged satisfaction of his debt, by a sale of part of it according to the laws of New York.

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It is true that before this claim against the estate was barred by the statute of limitations, the heirs agreed with the administratrix, that the debt should be paid out of the proceeds of a sale of certain corporate stock. But the stock was not sold so as to make the payment, and after the demand was barred, the heirs made an agreement with the purchaser of their estate in New York, that he should retain enough of the consideration which was then due to them, to remove this incumbrance, deducting an equal amount from each bond. After the deduction of this amount from the bonds, the balances were paid to the obligees, and thus the bonds were satisfied and discharged. The effect of this arrangement by the heirs was, to leave the estate in the hands of the purchaser in the same situation it would have been, had it been sold subject to this incumbrance.

It must be presumed that the heirs stipulated to remove the incumbrance or to furnish the purchaser with the means of doing it. If this was not the case, they voluntarily agreed to relinquish a part of the purchase money. In this event it was equivalent to a reduction of the price of the estate, and the plaintiff can have no claim to any more than one half of the price which was finally agreed upon and actually paid.

If the heirs agreed to pay off this mortgage, it was a part of the agreement that it should be paid out of a particular fund. As this agreement was made by the plaintiff under the mistaken supposition that he owned but a quarter, when in fact he owned half of it, he claims to be relieved from its operation. If the agreement is invalid in part, it must be so in the whole. The plaintiff cannot be released from it and the defendant be bound by it. If the plaintiff, with a knowledge of his rights, would not have agreed to pay out of this fund; so the other heirs, with the same knowledge, would not have agreed to pay at all. They would have relied upon their statute bar, and left the mortgagee to his remedy on the mortgaged estate and their grantee to his remedy against his grantors or in resisting payment of his bonds.

Although this agreement was founded in misapprehension, yet

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as it was made in good faith and has been executed, as the parties cannot be restored to the situation they were in when it was made, and as the effect of annulling it as to one would be manifest injustice to the other, we can see no good reason why both should not be bound by it.

Besides, we cannot perceive that this arrangement by the heirs had any effect upon the rights of the mortgagee, or in fact upon his proceedings to recover his debt. The purchaser having failed to pay off the mortgage, the mortgagee was left to his only remedy, and doubtless pursued it in the same manner he would have done had the heirs made no provision for extinguishing their debt.

If the heirs had received of their grantee the whole consideration, and afterwards he had been compelled to remove the incumbrance, would not the heirs have been bound to remunerate him? If at the sale they agreed to remove the incumbrance, justice would have required them so to do, and in the same equal proportions in which they had received the consideration, because if such agreement was made, it was upon the mutual belief that they were equally interested in the estate, and it would be unequal and unjust to relieve them from it.

But it is argued for the plaintiff, that he ought to recover for this part of his claim, because the estate in this Commonwealth was liable for the payment of this debt, and that the neglect to pay it was a breach of duty in the administratrix for which she would be answerable to the heirs in the same proportion in which they owned the estate. For the reasons before given, we are not satisfied that the plaintiff ought to prevail on this point, even if this position is tenable. But we think it cannot be maintained as applicable to this case. The estate here was unquestionably liable for the payment of this debt, had it been prosecuted against the administratrix here before it was barred by the statute. But we do not think that it was the duty of the administratrix, under the circumstances of this case, to go into New York to redeem the estate there, nor that her omission to do it would render her liable for a devastavit.

By the common law the heir is entitled to the aid of the personal property of the mortgagerin paying off mortgages; but if the heir, without making application for aid in redeeming,

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disposes of the mortgaged estate, he cannot afterwards come upon the personal estate for assistance. Bac. Abr. Mortgage, E. And no authority was cited, or has been found, which requires the administrator in England to redeem mortgaged estates in foreign countries. But on the contrary, it is very clear that such administrator would have no power to do any act, as such, out of the kingdom.

So an executor or administrator appointed in this State has no authority beyond its limits. He would have no power to make a tender in any other State, nor could he resort to any legal process to compel the mortgagee to accept a satisfaction of the debt or discharge the mortgage. Goodwin v. Jones, 3 Mass. 514; Stevens v. Gaylord, 11 Mass. 256; Langdon v. Potter, ibid. 313; Cutter v. Davenport, 1 Pick. 81; Fenwick v. Sears's Adm. 1 Cranch 259; Dixon's Ex. v. Ramsay's Ex. 3 Cranch 319. The law imputes negligence to no man for not doing that which he has no legal power to do. It is true, that if the mortgagee had chosen, he might not only have compelled the administratrix to pay out of the estate here, but he might voluntarily have accepted payment of her, and given her a valid discharge. But he could not have been compelled to do either. He had the power at his own election, either to commence process upon the mortgage itself, or to take out administration in the State where the mortgaged land was, and in the one way or the other to obtain satisfaction of the debt from the estate itself. As the administratrix had not the power to prevent him from adopting either of these courses, so her omission to do it, or to attempt to do it, did not amount to waste.

The mortgage was made by the intestate to secure the payment of a note given by him for fifteen thousand dollars; about one third of which was received by him just before his death, and the residue of which was contracted to be paid by the mortgagee in a limited time. The mortgagee had a right to execute the contract by paying to the administratrix the whole balance of the $15,000 and increasing the lien to that amount on the estate mortgaged. But by agreement between the mortgagee and the administratrix, only a part of this sum was

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paid by the former to the latter, so that the incumbrance was fixed at $7500. The plaintiff claims to recover of the defendant one twelfth part of this sum received by the administratrix, as distinguishable from the amount paid to the intestate in his lifetime.

This sum was paid by the administratrix in pursuance of the original agreement, was secured by the mortgage given by the intestate in his lifetime, the mortgagee's only remedy was against the estate, and his action against the administratrix was as much barred by the statute in relation to this sum as the other. It was always treated as one debt by the administratrix and the heirs. All the agreements between the heirs for the extinguishment of the mortgage, related as much to this part of the demand as the other. In short, no distinction was ever made between the different sums which constituted this debt. And it was all equally an incumbrance on the New York estate. For the reasons before given, we are of opinion that there is no ground for distinguishing between the sum received by the administratrix and that received by the intestate, and that the plaintiff is not entitled to recover for any portion of the amount secured by the mortgage.

Upon a view of the whole case, it is the opinion of the Court, that the plaintiff recover one third of the whole amount received by the defendant on account of the sale of lands in New York, with interest from the service of the writ.