Green v. State

56 Miss. 771

• Court: Mississippi Supreme Court
• Decided: April 15, 1879
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

Plaintiff was the holder of certain land-scrip, which by law he had the right to locate, at any time previous to October, 1853, on any ¿unoccupied swamp and overflowed land in the County of Tunica, from the Board of Police of which county he had purchased it, though the land belonged to the State, and the patent was to be issued by her officers. He elected to locate it upon land lying in Attala County; and both he and the secretary of state supposing that he had a right to do so, the scrip was surrendered to that officer and by him marked cancelled, and a patent delivered for the land selected in Attala County. The location and patent were by this court declared void, because the plaintiff had no right, under the law, to locate Tunica County sci’ip on Attala County land.- The various suits growing out of this transaction are reported as follows : Jackson v. Dilworth, 39 Miss. 772; Clements v. Anderson, 46 Miss. 582; Green v. Irving, 54 Miss. 450.

Having lost the land in payment of which he surrendered his scrip, plaintiff brings this action to recover the money expended in its purchase, with interest, or the market value of the scrip on the day of its cancellation.

His position is, that though money paid under a mistake of law cannot ordinarily be recovered back, yet this principle does not apply where, through a mutual mistake of law, money has been paid by one and received by another under circumstances in which there was neither a moral nor legal right to demand it, and where it will be against natural justice for the receiver to retain it. The distinction seems sound, and is supported by authority. 2 Burr. 105; 1 Term Rep. 285; 5 Taun. 143; Dill v. Wanehauser, 7 Metc. 438; Sheuver v. Fowler, 7 Miss. 31; Williams v. Reed, 5 Pick. 470; Earle v. Bickford, 6 Allen, 549.

Let us see how it affects plaintiff’s case. He paid nothing into the State treasury, and consequently the State has not been pecuniarily enriched by the blunder committed by himself and her officer. The scrip surrendered imposed no moneyed' obligation on the State, nor had she ever bound herself to redeem it in money. Can the mistake of the plaintiff and of the secretary of state change her liability? Her contract was to deliver a patent whenever the holder of the scrip should indicate that he had. selected a piece of land in Tunica County, in payment for which he was willing to surrender it. Plaintiff has never done this : but, on the contrary, he elected to receive a conveyance of land to which he was not entitled. His conveyance has proven worthless through a mistaken conception of the law, mutually entertained by himself and the officer of the State. If he had paid money into the State treasury, or had surrendered the State’s obligation for money, he would be equitably entitled, under the authorities cited, to recover back the money paid or the money value of the paper surrendered ; but the State has received no money from him, and never proposed, under any circumstances, to impose a pecuniary obligation on herself in the issuance of the scrip. She had given the scrip to the county, and authorized the latter to sell the same for its own benefit. Her obligation was to redeem it in land,- when properly presented and located. This the plaintiff failed to do; and he now seeks to make the State liable, not for a return of the scrip, but for its money value. This would be to allow him and the secretaiy of state, by an unauthorized and illegal act, to change the State’s liability, and impose upon her an obligation which she never had the least intention of assuming.

But it is said that the State still owns the land which the scrip represented, while she has gotten in her obligation to convey it. This is true, and it may give the plaintiff the right to demand the land, but certainly none to call on the State for money which she has never received. He paid his money into the county treasury; to give it back to him out of the State treasury would be an act of injustice to the tax-payers of the State at large. Having bought from the county the State’s covenant for land, which she was always ready and willing to redeem, and having by his own act improperly surrendered it, he certainly cannot claim thereby to have imposed upon her an ' obligation greater than she would have been under if he had dealt properly with it. The utmost extent of his rights, legal or equitable, must be to demand the return and rehabilitation of his improperly cancelled scrip, or the issuance of a duplicate.

If that which was surrendered has now become barred by its own limitation, and there be no law for the «issuance of a duplicate, he must apply to the Legislature for the relief indicated. Every principle of justice would suggest that it be granted.

If it be not so valuable now as it was twenty-five years ago, he cannot complain of a loss which occurred through his own blunder.

Judgment affirmed.