
    Conrad Belloff and Helena Belloff, His Wife, Respondents, v. The Dime Savings Bank of Williamsburgh, Appellant.
    Second Department,
    March 22,1907.
    Payment — when moneys not paid under mistake of fact — conveyance by devisee when child born after making of will.
    The lack of authority of a sole devisee to convey lands when a child was horn to the testator after the making of the will is not a question of fact, but one of • law, and one who has taken title and paid a subsequent mortgage on lands conveyed under such circumstances cannot recover on the theory that the payment was made under a mistake of fact, where there is neither testimony nor finding that the plaintiffs were ignorant or mistaken respecting any of the facts involved.
    The deed of the widow was not invalid, being effective to convey her dower ■ right, and moreover, as: the widow's action for dower was not barred, the person paying the mortgage was subrogated to the equitable rights of the ’ mortgagee; "
    The cases in which moneys paid may be recovered may be grouped under three-heads: (1) When payments, are induced by fraudulent misrepresentation; (2) when made under coercion either in fact or in law;. (8) when made under a mistake of fact.
    Bich, J., dissented.
    ■ Appeal by the defendant, The Dime Savings Bank of Williams-burgh, from a judgment of the Supreme Court in favo.r of .the plaintiffs, entered in the office of the clerk of the county of Kings on the 13th day of April, 1906, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived. '
    
      Otto F. Struse, for the appellant.
    
      James Troy [Thomas H. Troy with him on the brief], for the respondents.
   Milleb, J.:

This action is to recover moneys alleged to have been paid under a mistake of fact. Plaintiffs had judgment and the defendant appeals.

One William Barnes died July 2, 1885, leaving a last will and testament purporting to bequeath and devise all of his property to his wife. A child was born after the making of the will, which fact is shown by the record of the proceedings admitting the will' to probate. The. widow, apparently assuming that the devise to her was not affected by the subsequent birth of the child, assumed to convey certain real property owned by the testator. In 1901, Stephen Burkhard, assuming to have title to the premises so conveyed through attempted mesne conveyances, executed a mortgage thereon to the defendant to secure the payment of his bond for the sum of $5,000, and thereafter by warranty deed assumed to convey the property to the plaintiffs, who paid the mortgage on July 2, 1902, and now claim that said payment was made under a mistake of fact. The plaintiff ■ Conrad Belloff testified to the mistaken belief on his part that Burldiard’s deed conveyed title in fee to the premises and that the mortgage was a valid lien thereon, and this is the mistake found by the court and relied on to support the judgment. ■ The widow of William Barnes is still alive. It is conceded that the defendant acted in entire good faith.

The legal -effect of the deed to the plaintiffs was not a question of fact, and there is neither testimony nor. finding that the plaintiffs were ignorant of or mistaken respecting any of the facts involved in the determination of the question of law. The deeds were not wholly invalid, as they operated to assign the widow’s dower interest. (Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324.) The action for dower was not barred (Code Civ. Proc. § 1596) when the mortgage was paid, and the persons paying the mortgage were entitled to be subrogated to the equitable rights of the mortgagee. (Everson v. MeMullen, 113 N. Y. 293.) None of the cases relied upon by the respondents are in point. They may be grouped under three heads: (a) Payments induced by fraudulent misrepresentations—it is conceded that there was no fraud; (b) payments made under coercion either in fact or in law — the payment was not involuntary merely because it was demanded; (c) payments ‘made under a mistake of fact — the error was a mistake of law. The familiar rule is not questioned that money paid upon a claim of right cannot be recovered back merely because the payor mistook the law. (Brisbane v. Darces, 5 Taunt. 143; Clarke v. Dutcher, 9 Cow. 674; Mowatt v. Wright, 1 Wend. 355 ; Champlin v. Laytin, 6 Paige, 189; 18 Wend. 407; Silliman v. Wing, 7 Hill, 159; Supervisors of Onondaga v. Briggs, 2 Den. 26; New York & Harlem R. R. Co., v. Marsh, 12 N. Y. 308; Phelps v. Mayor, 112 id. 216; Pooley v. City of Buffalo, 122 id. 592; Redmond v. Mayor, 125 id. 632.) The question whether the plaintiffs could jdead ignorance of facts appearing of-record in their chain of title or discoverable upon such inquiry as the record would suggest (Moot v. Business Men's Investment Assn., 157 N. Y. 201) is not now before the court, nor is it necessary tó determine how that question would be affected by the fact that since the payment of the mortgage the situation of the parties has changed- because of the running of the Statute of Limitations against the action for dower. ’ (See Kingston Bank v. Eltinge, 40 N. Y. 391; National Bank of Commerce in N. Y. v. N. M. Banking Assn, of N. Y., 55 id: 211; Mayer v. Mayor, 63 id. 455; Curnen v. Mayor, 79 id. 511; Corn Exchange Bank v. Nassau Bank, 91 id. 74; Hathaway v. County of Delaware, 185 id. 368.) The court has not been aided by counsel on these questions, and we may well postpone their consideration until a record is presented requiring it.

The judgment must be reversed.

Jenks, Hooker and Gaynor, JJ., concurred; Rich, J., dissented.

Judgment reversed and new trial granted, costs to abide the event, .  