As a general rule where a person, by mistake of fact, pays money to another, which he does not owe him, the law implies a promise to repay it. Wheadon v. Olds, 20 Wend. 174. Whether in a case like this, where the mistake occurred in paying the purchase-money of lands, and the purchase has been consummated by a conveyance, the remedy can be pursued in an action at law or must be sought in a court of equity, it is not material to inquire. For upon a submission of a controversy, pursuant to section 372 of the Code, the court is bound to give such judgment as the facts require, whether the relief be t legal or equitable.
The facts in this case clearly entitle the plaintiffs to a return of the sum claimed. It is a case of a plain mistake, and one which must be deemed material. 1 Story’s Eq. Juris., §§ 140,141; Adams’ Eq. 188; Marvin v. Bennett, 26 Wend. 169. We think it is not an obstacle to the relief sought, that the parties cannot be put in the position they were in before the sale was made ; in other words, that it is not necessary, in order to do justice to the defendant, that the plaintiffs should reconvey the land, and that the contract of sale should be rescinded. The defendant sold the land for a fixed price per acre agreed upon, and the plaintiffs are entitled to both the land and the amount which they overpaid by mistake. This is the only way in which the mistake can be corrected. To annul the sale would not do that, but would deprive the plaintiffs of a fair bargain without any fault on their part. Such a decree would not be in accordance with the rule in equity on this subject. That rule merely requires that the parties shall be placed in the same situation they would have been in if the mistake had not happened. TJpon that principle the plaintiffs are entitled to the land, but the defendant is entitled only to a sum less than that which he received, which is ascertained by deducting therefrom the amount claimed by the plaintiffs.
¡Nor does the subsequent sale of the residue of the defendant’s land to other parties affect the equitable rights of the plaintiffs. *632They were strangers to that transaction, and if the mistake, which they now seek to have corrected, caused the defendant to make that sale at a price less than he would otherwise have obtained, the surveyor who caused the mistake, and not the plaintiffs, is responsible.
These are the only questions presented. The plaintiffs are, therefore, entitled to recover the sum of $391, with interest from March 1, 1869, with costs.
Ordered accordingly.