Burke v. Gould

Citations

• 105 Cal. 277
• 38 P. 733
• 1894 Cal. LEXIS 1151

Syllabus

<p>Recovery of Money Paid—Mistake of Fact—Voluntary Payment with Knowledge of Facts.—Where money is paid voluntarily, with knowledge of the facts concerning a mistake under which the sum was paid, and without protest or objection, no recovery can be had upon the ground that the money was paid by mistake.</p> <p>Id.—Duress of Property—Threat to Foreclose Mortgage—Conveyance to Mortgagee—Repurchase—Voluntary Payment.—Although money paid to prevent the unlawful taking of property may be recovered back upon the theory of moral duress, based upon an unlawful act of the defendant, yet this rule does not apply where no unlawful act was committed by the defendant; and where the only act threatened was the exercise of a right conferred by law upon defendant as a mortgagee to foreclose the mortgage in the usual way, resulting in a conveyance by the mortgagor of all the mortgaged property to the mortgagee, upon an agreement for a repurchase, a voluntary payment upon and repurchase of a specified amount larger than the aggregate of principal and interest intended to be included as the price at which the property was to be repurchased, made with full knowledge of all the facts, and without protest, cannot be recovered.</p> <p>Id.—Fear that Defendant Will Leave State—Tender of Performance.—A voluntary payment, with knowledge of the facts, is not excused by the fact that plaintiff thought that defendant was about to leave the state to avoid a reconveyance of the property, since plaintiff had only to tender performance to conserve all his legal rights.</p>