#6746 - Aiken V. Shorts - Restitution of Unjust Enrichment BCL

Aiken v. Short

Facts

The defendant was the widow and sole executrix of Francis Short, who died in 1853. One Edwin Carter had made a will, dated February 1846, by which he gave his property equally amongst his eight brothers and sisters, of whom George Carter was one. This will was proved after his death, which took place in 1847, by John Carter the younger. George Carter being largely indebted to Stuckey's Banking Company, by deed dated the 15th January, 1855, conveyed to the Banking Company his one-eighth share in the property of Edwin Carter, to which he professed to be entitled under this will, subject to the charges upon it. George Carter was at that time indebted to the defendant, as executrix of Francis Short, in the sum of 2001., which vas secured by an equitable mortgage of the property devised to him by Edwin Carter's will, and by the joint and several bond of George Carter, John Carter and Charles Carter, dated October 1850. The equitable charge was recited in the deed of the 15th January, and at the time of the execution of that deed it was agreed, as between George Carter and the Bank, that the Bank should pay off this sum of 2001 and interest. In May 1855 the Bank made arrangements to sell the property. Before the execution of the conveyance one Richardson, acting as attorney for the defendant, applied to the Bank for payment of the 2001., and interest, stating that he had applied to George Carter, who had referred him to the Bank. The Bank accordingly, through their attorney, paid to the defendant the sum of 2261. 16s. 6d… In August 1855 John Carter produced a will of Edwin Carter, dated April 1846, which appeared to be the true last will of Edwin Carter. This will, the existence of which had been kept secret by the Carters, had been prepared in the office of Francis Short, the defendant's testator, and was attested by him. Under this will George Carter took only an annuity of 100l., which ceased upon his making any assignment. The Bank then applied to the defendant to refund the 2261. 16s. 6d. previously paid by them to her, and on her refusal to repay the money brought the present action to recover it back.

Holding

Pollock C. B.

He referred her to the Bank, who, conceiving that the defendant had a good equitable charge, paid the debt, as they reasonably might do, to get rid of the charge affecting their interest. In consequence of the discovery of a later will of Edwin Carter, it turned out that the defendant had no title. The Bank had paid the money in one sense without any consideration, but the defendant had a perfect right to receive the money from Carter, and the bankers paid for him. They should have taken care not to have paid over the money to get a valueless security; but the defendant has nothing to do with their mistake.

The money was, in fact, paid by the Bank, as the agents of Carter.

Platt B.

The action for money had and received lies only for money which the defendant ought to refund ex aquo et bono. Was there any obligation here to refund?

Carter referred her to the Bank, who paid the debt, and the bond was satisfied. The money which the defendant got from her debtor was actually due to her, and there can be obligation to refund it.

Bramwell B.

In order to entitle a person to recover back money paid under a mistake of fact, the mistake must be as to a fact which, if true, would make the person paying liable to pay the money; not where, if true, it would merely make it desirable that he should pay the money. Here, if the fact was true, the bankers were at liberty to pay or not, as they pleased. But relying on the belief that the defendant had a valid security, they, having a subsequent legal mortgage, chose to pay off the defendant's...