Burleigh and al. vs. Bennett, 9 N.H. 15

Upham, J. In this case it is contended that the plaintiffs are not entitled to recover back any portion of the amount charged against them in account with their ward, for the reason that judgment has been entered up against them for said sums, by decree of the probate court. There is no doubt, where money has been recovered by the judgment of a court having competent jurisdiction, and the judgment has been satisfied, that the debtor cannot after-wards recover back the amount paid in another action, while such judgment remains in force. The case of Loring vs.

Mansfield, 17 Mass. 394, is to this effect, and numerous authorities are there cited ; and were it the necessary result that these authorities would be overruled, or that the prin-eiple sustained by them -would be subverted by sustaining the present action, we should have no hesitation in holding that this suit could not be maintained. But the ground of recovery in this case, on the part of the plaintiffs, arises from matter entirely subsequent to the decree against them.

That decree was rendered in favor of the ward as a compensation for property, the consideration of which had come into the plaintiffs’ hands by virtue of a supposed legal sale of the ward’s estate by the plaintiffs, as his guardians. While the plaintiffs held the proceeds of such property, they were bound to account for it, and were required so to do by decree of the probate court. But subsequently, by the act of the ward, or of his new guardian, the sale was avoided, and the plaintiffs were compelled to refund the money to the purchaser of the land.

The decree of the judge of probate was based on an account rendered on a supposed legal sale of the ward’s property ; and it is as much interfering with that decree, for the ward to deny the sale of the property, or attempt to rescind or avoid it, as it is, when such sale has been avoided, for the plaintiffs to reclaim the money allowed on account of said sale. Neither of them affect the judgment of the court. It is the act of the defendant subsequent to the decree that gives the plaintiffs their cause of action.

The defendant, by claiming and appropriating to his own use the property for which the plaintiffs had paid him the sum now sued for, divests himself of the right to retain the money. He cannot retain both ; and he has in his hands, according to all received principles of law, money had and received to the plaintiffs’ use. It is the ordinary case of an attempt to recover back money paid on a consideration which has failed. In Williams vs. Reed and Trustee, 5 Mass. 480, a guardian sold lands of his ward under a license of court, without faking the oath and giving bonds as required by law.

It was holden that the purchaser, after having paid a part of the consideration, might refuse to take a deed and recover back the money. In this case, if the new guardian refuses to ratify the sale, or revokes it on account of like defects, the plaintiffs may, on the same ground, recover their money. In the case, Shearman and al. vs. Akins, 4 Pick. 283, which is almost precisely like this case, an action for money had and received was sustained, and the decree of the judge of probate was considered as no bar to sustaining the action. Judgment for plaintiff.