Village of Glencoe v. County of McLeod

41 N.W. 239, 40 Minn. 44, 1889 Minn. LEXIS 14

Opinion

Gilfillan, C. J.

Except as to the claim that the cause of action is barred by the statute of limitations this case is precisely analogous to that in Borough of Henderson v. County of Sibley, 28 Minn. 515, (11 N. W. Rep. 91.) As in that case, the village authorities paid into the county treasury money of the village, upon an agreement with' the county commissioners absolutely void because the latter had no power to make it. There was no lawful authority on the one side to pay, nor on the other to receive, the money. The payment and receipt of it having been wrongful, a right of action in behalf of the village to recover it accrued at once, without any previous express demand. Dill v. Inhabitants of Wareham, 7 Met. 438; Earle v. Bickford, 6 Allen, 549. It is only where the receipt of money is lawful, as where the owner of it pays or delivers it to another, (even though it be by mistake of fact,) that an express demand before suit is necessary. When the receipt of it is wrongful, as in this ease, the possession continues to be wrongful. The cause of action was therefore barred long before the action was commenced, and the demurrer to the complaint ought on that ground to have been sustained.

Order reversed.