Finnel v. Brew ex rel. Mack

Mr. Justice Woodward delivered the opinion of the court, When William Brew, the plaintiff below, paid the money- for the recovery of which this suit was brought, Finnel, the defendant, held three judgments against him, amounting to so’mething like $150. These judgments were due, payable and undisputed. The payment of the $50 was one which Finnel had the right to receive, and which it was the duty of Brew to make. A reference to authority to prove that an action cannot be maintained for money so paid, would seem to be superfluous. Even where the payment [365] has been on an unfounded demand, or in ignorance of the law and legal circumstances of the case, if voluntary and without constraint, it cannot be recovered back: Colwell v. Peden, 3 Watts 328; Lackey v. Mercer County, 9 Barr 318; and Natcher v. Natcher, 11 Wright 496. No facts occurring afterwards in the determination of new controversies between other parties can be carried back to affect a transaction which, when it took place, was perfectly fair and just. To entitle the plaintiff to .recover, he must be able to take advantage of the error of the auditor by whom the proceeds of his real estate were distributed after its sale by the sheriff. In that distribution the whole amount of the three judgments which Finnel held was allowed. As the verdict of the jury has established the payment of the $50 in dispute, the allowance -was to just that extent too large. Can the excess be restored to the plaintiff by means of this action ? The proceeds of the sheriff’s sale were insufficient to pay the liens against the plaintiff. If the amount Finnel had received from Brew had been deducted from the sum he claimed, it would have been applicable to the judgment of John Meredith, and a later judgment of 0. M. Myer would have been still left wholly unpaid. Thus the sale had divested the plaintiff of all interest in the land, and his creditors were the only parties who had a right to participate in the fund. Admitting that the defendant could not conscionably claim the $50, the mistake was to the prejudice of Meredith alone. The general interest which the plaintiff had in the proper application of the money in the sheriff’s hands .to the liens against him, was not such as to entitle him to the possession of .this particular sum, or to authorize him. to control' its disposition. The facts in Longenecker v. Ziegler, 1 Watts 252, were identical with those developed here, except that the judgment-debtor in that case had brought suit for the use of the creditor, who would have been entitled to receive the excess improvidently paid on an earlier judgment if the fund had been properly distributed. It was held that the action could not be maintained, on the ground that Longenecker had no right to the money beneficially, or even as trustee for the creditors, for the law is not'so unreasonable as to attribute to him the ownership of that of which it had itself divested him, and appropriated to the extinguishment of his debts. The auditor’s report and its confirmation by the court are also conclusive against the plaintiff’s present claim. The duty of the auditor was to pass on the question which lies at the foundation of this controversy. He was to ascertain the parties who held liens against the property sold, and the amounts due to them respectively.- It has been urged in the argument that the plaintiff was not a party to the hearing, and could not be affected by the auditor’s action. It is true he had no right to any part of the [366] money, but the due application of it to bis debts was as important to him as if he had been a participant in the distribution. Of all parties concerned in the proceeding, he had received from the very outset the earliest, the most direct and most constant notice. Cash’s Appeal, 1 Barr 166, decided that a lien-creditor who does not appeal from a decree distributing a fund raised by. a sheriff’s sale, cannot be relieved in the Supreme Court. In Finney’s Appeal, 3 Barr 312, it was held that if a lien-creditor did not claim at the time of the distribution, but permitted the residue to be paid to an assignee for the benefit of creditors, his claim to be preferred to the assignee came too late. A decree awarding money paid into court to one of several contesting creditors is, if unreversed and unappealed from, conclusive that the party to whom the fund is awarded is, and the contestants are not, entitled to it; and all matters that could have been properly litigated cannot again be examined in a collateral action : Noble v. Cope’s Administrators, 14 Wright 18. The remedy for any error by the auditor was in an application to the Common Pleas. This remedy was afforded in Beck’s Appeal, 3 Harris 406, where a mortgage-creditor petitioned for the correction of a mistake in the distribution of the proceeds of a sheriff’s sale at the next term of the court, but after the twenty days allowed for an appeal had expired; and it was held by this court that the Common Pleas had power to review its decision and to grant relief. In this case undoubtedly a mistake was made, but it could only be cured by reforming or reversing the decree upon the auditor’s report. That cannot be reached collaterally. It was final as to the question which it was the object of this litigation to present. Judgment reversed.