Burr v. Veeder

Money errone. ousiy paid by another inmu° tuui ignorance if known,’ would have BTPVPTITPfl fhp payment, may be recovered tionof assumpsit. So motley paid by the holder tore£emStfe mortgaged a^alefor ta™ tf’ n ^hcI¡arg¿ andmaybedefor"clostirePof be ^mortgage.

This was an action of assumpsit, tried at the Schenectady circuit in January, 1828, before the Hon. William A. Duer, then one of the circuit judges. On the 25th May, 1820, the defendant, for the considera* tion of #1231,50, being the assignee of a bond and mortgage executed by one Lampman to one Van Arnum, assigned the ■ 1 same to the plaintiff. The bond and mortgage bore date 1st March, 1810, and were given to secure the payment of $2000. At the time of the transfer to the plaintiff, a calculation was made, and the sum of #1231,50, was ascertained as the amount due on the bond and mortgage, which was paid hy the plaintiff to the defendant; the parties intending to ascertain, and believing they had ascertained, the true amount due. Subsequently it was discovered that the sum of #37 hud been paid to Van Arnum on 16th August, 1810, on account of the bond and mortgage, which, on a foreclosure of *he mortgage by the plaihtiff, was deducted from the amount due on the same ; and he now claimed to recover that sum of the defendant. The defendant was ignorant of this payment having been made when the bond and mortgage were assigned to him, and continued so at the time of the assignment to the plaintiff, who also then was ignorant of the fact. Van Arnum is insolvent. Whilst the defendant held the assignment he paid to the state officers $62,72 to redeem a portion of the mortgaged premises wnich he had sold for taxes. This payment was made on 17th June, 1817. On the day subsequent to the assignment, the plaintiff entered into an agreement in writing with the defendant to pay the amount of the taxes so paid by the defendant, if they, or any part of them, could be collected under the mortgage assigned to him. The mortgage was foreclosed in chancery by the plaintiff, and he became a purchaser of part of one of three lots included in the mortgage, at a fair price and value, (as stated in the case.) Whether the mortgaged premises on the sale produced the whole amount of the mortgage monies, or more, or less, does not appear. A verdict was taken for the plaintiff for the $37, with interest, subject to the opinion of this court, ón a case made.