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.