McMillan v. Vischer

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. The plaintiff in this case sues the defendant, who was Sheriff [240] 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 he 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 he considered as the agent of the redemptionee in receiving this money. But he was ag’ent 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 duo, 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 jier 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. [241] 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 ho 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 Gary v. Ozio & Randall, the remittitur was uj>on 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 [242] into, or form a part of, the judgment below. Mor 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.