Ex parte Richard & Thalheimer

de GRAFFENRIED, J.

This is a petition for a writ of certiorari to the Court of Appeals. The Court of Appeals in this case recognized the rule of law which is quoted by petitioners’ counsel, and which was announced by this court in Young & Son v. Lehman, Durr & Co., 63 Ala. 519 , viz.: “The general rule of law is clear and undisputed that money paid under a mistake on the part of the payor of a material fact may be recovered of the person receiving it in an action of assumpsit on either of the common counts for money had and received, or for money lent, or for money paid. The authorities in this court do not excuse the person receiving from liability, because the payor, before making payment, had in his power the means of ascertaining the facts, and was not diligent in the employment of such means.”

*582 In. the instant case an impostor, representing himself to be the owner- of a tract of land, obtained from Richard & Thalheimer a loan of $850. The impostor assumed the name of the real owner of the land, and in ignorance of the truth, and believing the impostor to be the man he represented himself to be, Richard & Thalheimer made the loan.' The impostor told Richard & Thalheimer that there was a mortgage on the land, and it was understood that the loan was not to be closed until this prior mortgage was paid off in full. When the papers had all been executed, a check for the money was by agreement of all the parties made -to one Bishop, an attorney, who was to see that the titles were all clear before the loan was closed. The impostor and Bishop left Richard & Thalheimer’s office, the check was cashed, the prior mortgage was paid off in full, and it Avas reported to Richard & Thalheimer that their mortgage had been filed for record. The true owner of the land subsequently turned up, the fraud was discovered, and this suit was brought by Richard & Thalheimer against the prior mortgagee— Kornegay — to recover of him the money which had been paid him in discharge of his mortgage. Neither Bishop, nor Richard & Thalheimer kneAV the real OAvner of the land, but believed that the impostor was what he claimed to be, and Kornegay, the holder of the prior mortgage, knew nothing of the imposture or fraud until after the money had been paid him and his mortgage discharged. Kornegay died after this appeal was taken, and the cause was revived in the names of the executors of Kornegay.

The Court of Appeals found as a fact in this case that the impostor, and not Richard & Thalheimer, paid to Kornegay the money in discharge of the mortgage. This being true, the Court of Appeals in this case in no Avay inpinged the above rule announced by this court *583 in Young & Son v. Lehman, Durr & Co., supra, but, on the other hand, fully recognized that rule, distinguishing the instant case from the case of Strauss v. Hensey, 9 App. D. C. 541, in which the Court of Appeals of the District of Columbia applied the rule declared in Young & Son v. Lehman, Durr & Co., supra, in a case in which the facts were similar in many respects to the facts in the instant case. Of course, if the impostor paid Kornegay and Kornegay innocently received the money as stated, then Richard & Thalheimer were not entitled to recover the money of Kornegay.

The opinion of the Court of Appeals in this case is to be found in 6 Ala. App. 73 , 60 South. 411 , and under the facts as the Court of Appeals found them to exist the legal propositions announced by that court are not only not in conflict with, but are in perfect harmony with, the previous decisions of this court.

The writ of certiorari is denied.