The opinion of the court was delivered by
Redfield, J.It is not contended, that this money was received by the defendant, under any expectation, either on his part, or that of the plaintiff, that it would ever be paid back ; but it is claimed, that, in consequence of the happening of subsequent events, it would now be against good faith for the plaintiff to retain it. But we do not perceive, that the money was paid under ány mistake, or ignorance of the facts, unless it be such ignorance, as is attributable to the neglect of the plaintiff. The subscription paper was dated the fourth of January, 1842; the deed was executed and recorded the next day; and the money was paid by the plaintiff as late as the September after; so that he had, at the time of the payment, full knowledge of all the facts, and, by the payment, must be supposed to have acknowledged, that the contract was fully performed on the part of the defendant. So that there is no ground for urging, that the plaintiff has been deceived, or that there has been any failure of the consideration.
The condition of the subscription was, that the defendant should give to the committee land enough to set the court house upon, and that the committee should set the court house upon it. It was referred wholly to the committee, to determine what extent of land, or what title, to require. The plaintiff’s object was to get the court house located there, and he did not care how small the piece of land might be, which the committee would accept, or how imperfect a title they had, if it would only enable them to use it for that purpose. The reversionary interest of the defendant would not interfere with the plaintiff’s interest, or wishes, but might advance both. It is not true, probably, that, if the deed had been an absolute deed, it *434would have been any more certain to have retained the court house upon the land. Possibly it might have been less likely to have effected that. But the land, in the event of a change in the location, would have passed to the county, instead of reverting to the defendant ; and it is indifferent to the plaintiff, which course the matter took.
The only matters, which operated for the defendant’s advantage and the plaintiff’s loss, were merely fortuitous, and in no sense implicated the defendant in a fraud, nor show a failure in the consideration of the subscription, nor any such mistake on the part of the plaintiff, as will enable him to recover back his money.
Judgment affirmed.