
    Wallner et ux. v. Jackson, Trustee
    
      Sidney B. Gottlieb, for plaintiffs.
    
      Folz, Bard, Kamsler, Goodis & Greenfield, and Robert K. Greenfield, for defendant.
    
      August 13, 1953.
   Kun, P. J.,

This matter comes before the court on defendant’s preliminary objections in the nature of a demurrer to a complaint for the recovery of an amount paid to defendants for release of a mortgage encumbering title to real property which plaintiffs were purchasing and as to which the seller was mortgagor in default. The preliminary objections are that plaintiffs fail to state a valid cause of action in that the payments to defendants were voluntarily made and, therefore, not recoverable.

The only question to be decided is whether or not payment of $4,646.71 was voluntary. The precise question as to whether a payment upon threat of foreclosure is voluntary or involuntary has not been before the courts. It is our opinion, however, that, the case of Pziepoira v. Long et al., 338 Pa. 242, is sufficiently analogous to control the instant case. It was said in that case, at page 244:

“It is the well settled general rule Ishat one who, contending that another has no valid claim against him, nevertheless makes payment solely because of the threat or the institution of litigation to enforce the demand, is not legally entitled to restitution. Tugboat Indian Co. v. A/S Ivarans Rederi, et al., 334 Pa. 15 20, and cases there collected.”

Nothing has been pleaded by plaintiffs to take their claim out of the general rule just quoted. Plaintiffs could have litigated the question of their liability if they wanted to do so, but having paid the money to avoid litigation, the law must regard the payment as having been voluntarily made and not recoverable.

The preliminary objections of defendant are sustained, and judgment is entered in favor of defendant.  