The Goldfield news. [volume] (Goldfield, Nev.) 1904-1911, 1910-07-02
DECISION RENDERED in THE
TOWNSHIP LOT CHARGE CASE

1t Is also averred that the trustee has
already paid to said Donovan the sum
of $1,000 without authority Of law, anil
that he threatens and intends to pay
out the full sum of $4,000 to said
Donovan.
The complaint asks that the sad
trustee be enjoined and restrained from
paying said Donovan any further sums
of money on account of the said $15,.
900, and that the proceeding whereby
he was allowed the said sum of SIS, 000
in connection with said TOWNSHIP mat
tiers, be adjudged illegal, null, and void
and that the said $1,000 heretofore paid
him by said trustee be paid back to the
said trustee for the benefit of the said
lot owners.
There are other charges in said com
plant, of mal-administration of said
trust, and an accounting is asked FOR
Of all moneys received by the said
trustee and paid out by him.
The court is of opinion that the COM
plant states facts sufficient to consti-
tute a cause of action against the de
PENDANTS Donovan and Stevens concern
ing their acts in connection with the
trust estate, but is of opinion that the
acts of Hamilton and Donovan previous
to the time of the creation of the
trust are not the subject of inquiry in
this action. There is no allegation of
misconduct on the part of Hamilton
concerning the trust estate, or in con-
nection with the trusteeship, or that
he at any time received any money
from the trustee in connection with
the trust, or that he caused any money
to be improperly paid out.
1t was contended upon the argument
that the plaintiff had no right to main
tain this action, for the reason that he
paid for his lot voluntarily, and had no
further interest in the controversy;
that he could not recover back his
money voluntarily paid. The payment
in this ease does not come within the
rule of voluntary payments contended
for. If the parties were on an equal
footing, a voluntary payment might
conclude the rights of the person max.
ing payment. 1t is not considered a
voluntary payment when the parties
are not on equal terms, and the person
making the payment has no choice.
Where a payment is made when the
only alternative is TO submit to an
illegal exaction or suffer great incon-
venience, it is not a voluntary pay-
ment.
"When the parties are not upon
equal terms, the rule of voluntary pay
ment is modified. Where one
has the advantage of the other, where
delay or a resort to the law Is inditter-
emit to the one, but may produce serious
loss and injury to the other, it is I'M
considerable to press such advantage
TO the obtaining of unjust demands.
This is extortion." Beckwith vs.. FRS
bic, 32 VT, $50, $50.
See, also, to the same effect, "a Am
St. Rep, 395, Ais, and note.
Business necessities or emergencies
may place one so at the mercy OF an
other as to make the doctrine of volun'
tary payment inapplicable. Marshall
VS.. Sneddiker, 25 Tex. AGO; rs Am. Dec
| 534. Swift Co. VS.. United States, III
U. s %; A Sup. CT. Rep. 244.
Many cases are cited in "a Am. st
Rep. above mentioned, to the enec'
that the rule of voluntary payment doe
not apply in cases similar to the one al
bar.
The complaint alleges that a certain
amount of money was collected iron
Camou by the trustee, over and ABOVE
all legal fees, and under the authority
of all the cases such surplus may be re
covered. In cases of this character tn
~parties do not stand upon ar equal foot
ing. -.
The defendant Stevens IS a publ
trustee, to whom the law gives q iega
right to demand and collect certain
fees for expenses incurred in the per
Torrance of his trust. The plalntiu l
a cestuique trust, and it is the duty 0
the trustee to protect his cestui gu
trust. And when the trustee demand
of the cestui que trust money rs
condition precedent to the delivery G
the deed to the cestui que trust, Tn
| latter has a right to assume for tn
time being that said demand is leg'
and proper, upon the presumption Una
public officials will perform their duti'
, in a legal manner, and not collect iieg
/. - I~- an HnArnd dnfV Y