Wake Development Co. v. O'Leary

SPENCE, J.

Plaintiff brought this action to recover the sum of $3,000 alleged to have been paid to defendant under compulsion. Prom a judgment in favor of plaintiff, defendant appeals.

The plaintiff corporation was the owner of a certain tract of land and had negotiated an advantageous sale of a portion of the tract. While the purchase money was in escrow defendant levied execution upon the entire tract based upon

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a judgment against one J. M. Danziger. The purchaser threatened to cancel the contract unless the property was released from the levy. Plaintiff immediately brought a suit against defendant and the sheriff making the levy, seeking to enjoin the sale under execution and to quiet title to said property. While said suit was pending, plaintiff, in order to prevent the loss of the sale to the purchaser, was compelled to pay to defendant the sum of $3,000 to obtain a partial release. Subsequently the suit was tried and plaintiff obtained the injunction and decree quieting its title to the property. Among other things the court found in that suit that plaintiff was the owner of the premises and that defendant’s judgment debtor, J. M. Danziger, did not at any time have any right, title or interest in the premises. Plaintiff subsequently brought this action seeking to recover the $3,000 paid to the defendant. The complaint alleged all of the foregoing facts. It further alleged that defendant caused said execution to be levied with full knowledge of the facts and with intent to abuse the process of the court and to cloud plaintiff’s title. Then followed allegations that the exaction of the $3,000 “was without right on the part of defendant and was obtained by fraud, undue influence and oppression and with malice”. The trial court’s findings were in favor of plaintiff and included a finding “that the exaction of the said sum of three thousand dollars was without right on the part of the defendant and that plaintiff paid same under compulsion and to save financial loss to plaintiff”. No findings were made with respect to the allegations of fraud, undue influence or malice. Upon these findings judgment was entered in favor of plaintiff for the sum of $3,000 together with interest.

On this appeal it is contended that the evidence is insufficient to support the judgment and that the trial court failed to find on material issues. In support of these contentions appellant states that this action is one to recover damages for an alleged malicious levy of execution and from this premise appellant concludes that it was necessary for respondent to allege and prove both malice and want of probable cause, citing