So, too, the creditor is entitled to call for payment of the whole of his claim at one time, unless the parties have stipulated for payment otherwise.
Questions often arise in regard to the payment of debts and legacies by executors and administrators. These questions are generally settled by statute regulations.
As a general rule, debts are to be paid first, then specific legacies. The personal property is made liable for the testator's debts, and, after that is exhausted, the real estate, under restrictions varying in the dif ferent states.
See EXECTJTOR AND ADMINISTRATOR; LEG ACY.
In the payment of mortgages, if the mort gage was made by the deceased, the personal estate is liable to discharge the mortgage debts ; 2 Cruise, Dig. 147. But where the deceased acquired the land subject to the mortgage, the mortgaged estate must pay the debt ; Duke of Cumberland v. Codring ton, 3 Johns. Ch. (N. Y.) 252, 8 Am. Dec. 492; 2 Bro. C. C. 57; Appeal of Hoff, 24 Pa. 203. See MORTGAGE.
Effect of Payment. The effect of payment is—fvrst, to discharge the obligation ; and it may happen that one payment will discharge several obligations by means of a transfer of the evidence of obligations ; Pothier, Obl. 554, n. Payment by one who is primarily liable to one entitled to collect the debt is an extinguishment of the debt and all lia bility thereunder, and however held, trans ferred, or assigned, it is ever afterwards a mere nullity ; Smith v. Waugh, 84 Va. 806, 6 S. E. 132. Sceond, payment does not pre vent a recovery back when made under mis take of fact. The general rule is that a mis take or ignorance of law furnishes no ground to reclaim money paid voluntarily under a claim of right ; 2 Kent 491; Campbell v. Clark, 44 Mo. App. 240; Harrelson v. Bar rett, 99 Cal. 607, 34 Pac. 342. But acts done under a mistake or ignorance of an essential fact are voidable and relievable both in law and equity ; Poll. Cont. 439 ; Pensacola & A. R. Co. v. Braxton, 34 Fla. 471, 10 South. 317. Laws of a foreign country are matters of fact ; Story, Const. 5th ed. § 1304; Haven v. Foster, 9 Pick. (Mass.) 112, 19 Am. Dec. 853; and the several United States are for eign to each other in this respect. See CON FLICT OF LAWS ; FOREION LAWS. In Ken tucky and Connecticut there is a right of re covery back equally in cases of mistake of law and of fact ; Northrop's Ex'rs v. Graves, 19 Conn. 548, 50 Am. Dec. 264 ; Ray v. Bank, 3 B. Monr. (Ky.) 510, 39 Am. Dec. 479. In Ohio it may be remedied in equity ; Mc Naughten e•. Partridge, 11 Ohio 223, 38 Am.
Dec. 731. In New York a distinction is taken between ignorance of the law and mistakes of law, giving relief in the latter case ; Champlin v. Laytin, 18 Wend. (N. Y.) 422, 31 Am. Dec. 382. In England, money paid under a mistake of law cannot be re covered back ; 4 Ad. & E. 858. Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when, in fact, he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, the money may be recovered back without previous demand ; U. S. v. Bank, 214 U. S. 316, 29 Sup. Ct. 665, 53 L. Ed. 1006, 16 Ann. Cas. 1184. The payment of a note for the purchase price of land, after the discovery of a mistake in computing the price, is no bar to an action to recover an overpayment resulting from, such mistake; Cardinal v. Hadley, 158 Mass. 352, 33 N. E. 575, 35 Am. St. Rep. 492. See IGNORANCE; MISTAKE. A payment under protest is never theless voluntary, unless there was duress or coercion ; Wessel v. Mortg. Co., 3 N. D. 160, 54 N. W. 922, 44 Am. St. Rep. 529. Third, part payment of a note will have the effect of waiver of notice of protest. Fourth, payment of part of the debt will bar the Statute of Limitations as to the residue ; Whipple v. Stevens, 22 N. H. 219 ; Baxter v. Penniman, 8 Mass. 134 ; 28 E. L. & E. 454 ; even though made in goods and chattels ; 4 Ad. & E. 71. But it must be shown conclu sively that the payment was made as part of a larger debt ; 6 M. & W. 824 ; Smith v. 12 Smedes & M. (Miss.) 663. See EARNEST ; PROTEST, PAYMENT UNDER.
The burden of proof, on a plea of payment, is on the party pleading it ; Clailin v. Watch Co., 7 Misc. 668, 28 N. Y. Supp. 42; Lanier v. Huguley, 91 Ga. 791, 18 S. E. 39; Curtis v. Perry, 33 Neb. 519, 50 N. W. 426. As to appropriation of payments, see that title.
See NovArrox ; APPROPRIATION ; LEE LOCI ; DISCHARGE ; RECEIPT ; ACCORD AND SATISFAC TION ; PERFORMANCE.
In Pleading. The name of a plea by which the defendant alleges that he has paid the debt claimed in the declaration; this plea must conclude to the country. See Chitty, Plead. In Pennsylvania a plea of payment, with leave, etc., is in common use ; under it a defendant may give in evidence anything tending to show that, of right, the plaintiff cannot recover.