rendered a dissenting opinion, wherein he held that the money was not recoverable upon the ground that it was against conscience for the admiral’s executrix to retain it. He says: “It seems to me a most dangerous doctrine that a man getting possession of money, to any extent, in consequence of another party’s ignorance of the law, cannot be called on to repay it. Suppose an administrator pays money per capita in misapplication of the effects of the intestate, shall it be said that he cannot recover it back? It is said that may be remedied in equity. *539This is an equitable action, and it would be of bad effect if it should not prevail in like cases.” Lord Mansfield took part in this case also, concurring in the main opinion, and, to show the bent of his mind,after discussing other cases, he says : “ The last case is Bilbie v. Lumley, 2 East, 469. Certainly it was not argued, but it is a most positive decision ; and the counsel was certainly a most experienced advocate, and not disposed to abandon tenable points. My brother Chambre put the case of an administrator paying away the assets in an undue course of administration. I know not that he could recover back money so paid. Certainly, if he could, it could be only under the principle sequum et bonum. There being, therefore, no case which has been argued by counsel wherein the distinction has been taken and in which this doctrine has been held, and as we do not feel ourselves called upon to overrule so express an authority as Bilbie v. Lumley, I am of the opinion that the defendant is entitled to retain this money.” We have gone thus lengthily into this case to show the foundation for the general doctrine that money paid under a claim of right, with full knowledge of all the facts, but under a mistake or ignorance of law, cannot be recovered back, and to denote the questionable character of the foundation of the opposing doctrine, and we cite the discussions of Mr. Justice Chambre and Lord Mansfield to indicate how uncertain, indefinite, and equivocal is the test whether, in the abstract, it be against conscience or not for .the party receiving the money to retain it. Chambre put a case much like the present, but thought the question of conscience would govern in determining the right to recover. Lord Mansfield doubted it, and they were directly opposed to each other as to the rule applicable to the facts of that case. A headnote to this case would seem to support Mr. Broom’s deduction, but it does not state correctly the principle decided.
*540The earlier cases upholding the doctrine to which reference is made as authority are Bilbie v. Lumleg, 2 East, *469, and Lowry v. Bourdien, 2 Doug. 468. In this country there are three leading cases, adopting and promulgating the view of Mr. Justice Chambre in Brisbane v. Dacres. The first in point of time is Lawrence v. Beaubien, 2 Bailey (S. C.),623 (23 Am. Dec. 155), which was an action upon a bond given by defendant, an unnaturalized citizen, as a consideration for'a deed convbying certain real property in trust for himself, which had previously been devised to him, he having been illy advised that the law would not permit him to hold real property, being an alien, and it was held, in effect, that relief will be granted against a mistake of law, and a contract made under such mistake, though with full knowledge of the facts, be set aside in cases where neither party has acquired a right or suffered a loss by such contract. A distinction is drawn between ignorance of the law and mistake of law, but the decision is put upon the alternative of adopting the doctrine of Bilbie v. Lumley and Brisbane v. Dacres, or, on the qther hand, that maintained by Lansdown v. Lansdown, Mosely, 364 (an authority very much discredited by Lord Mansfield), Bingham v. Bingham, 1 Ves. Sr. 126, and the dicta in Farmer v. Arundel and Bize v. Dickason; and it was determined against the principle as embodied in the maxim that ignorance of the law does not excuse. It should be remarked that it was not a decision announcing-an exception to the general rule, but laying down a principle distinct and antagonistic thereto. The next case is Culbreath v. Culbreath, 7 Ga. 64 (50 Am. Dec. 375). The facts are that one Culbreath died, leaving neither widow nor children. His nearest of kin were seven surviving brothers and sisters and the children of a deceased sister. The administrator, under a misapprehension of the law, divided the estate equally between the seven brothers and sisters, to the ex-*541elusion of the children of the deceased sister. The children having subsequently recovered against the administrator to the extent of one eighth of the estate, the latter sued two of the distributees to recover back the amount paid to them. The court held that “money paid by mistake of the law may be recovered back in an action for money had and received where there is a full knowledge of all the facts, provided that the mistake is clearly proven ; and the defendant cannot, in good conscience, retain it.” The result was again reached by a review of the cases, where it was found that there was a parting of the ways as it respects that doctrine and that held to in Bilbie v. Lumley. The next case is Northrop’s Ex’rs v. Graves, 19 Conn. 548 (50 Am. Dec. 264), very similar on the facts to the one at bar, wherein it was said that “When money is paid by one under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered back in an action of indebitatus assumpsit, whether such mistake be one of fact or of law.” The court bases the right of action upon the principle stated by Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005, that the action of indebitatus assumpsit lies for the recovery of money which ex sequo et bono ought to be paid over to the plaintiff. The action is said to be equitable in its nature, and, of course, comprises cases where the defendant cannot in good conscience retain the the advantage he has obtained. With the principle there can be no quarrel, and the action set forth is brought every day, having nothing further upon which to found it; but the case under discussion took the broad distinction indicated by the earlier authorities, and it came again to the test as to which was the sounder rule, not that there was an exception to the general rule. Kentucky is in line with these cases: Fitzgerald v. Peck, 4 Litt. (Ky.) 125.
*542The leading case in this county upon the other side of the controversy is, perhaps, Clarke v. Dutcher, 9 Cow. 674 ; the court, speaking through Mr. Justice Sutherland, saying that “Although there áre a few dicta of eminent judges to the contrary, I consider the current and weight of authorities as clearly establishing the position that where money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means’ of such knowledge, it cannot be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. (1) He shall not be permitted to allege his ignorance of law; (2) and it shall be considered a voluntary payment.” Another case is Mowatt v. Wright, 1 Wend. 355 (19 Am. Dec. 508), where it is said: “ The action for money had and received, in general, lies for money which, ex sequo et bono, the defendant ought to refund as for money paid by mistake, or upon a consideration which happens to fail, or for money obtained by imposition, or extortion, or oppression, or by taking an undue advantage of the plaintiff’s situation : 2 Burr. 1012. • A mistake which entitles a party to sustain this action must be a mistake of fact. Where there is no fraud nor mistake in matter of fact, if the law was mistaken, the rule applies that ignorantia juris non excusat: Doug. 471. An error of fact takes place either when some fact which really exists is unknown, or some-fact is supposed to exist which really does not exist.” A later case is Champlin v. Laytin, 18 Wend. 407 (31 Am. Dec. 382), where it is held that mere mistake in law is not, in the absence of fraud, surprise,-or undue influence, sufficient for relief in equity. In the course of an opinion by Mr. Justice Bronson he affirms that “ The civilians are divided on the question whether money paid under a mistake of law is liable to repetition. But it is the settled doctrine of Westminister Hall that money paid with a full knowl*543edge of the facts cannot be recovered back on the ground that the party was ignorant of the law.” Hurd v. Hall, 12 Wis. 125, is a well-considered case by Mr. Chief Justice Dixon, wherein he defines a mistake of law thus : “A mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion of inference, arising from an imperfect or incorrect exercise of the judgment, upon facts as they really are; and, like a correct opinion, which is law, necessarily presupposes that the person forming it is in full possession of them.” See, also, Birkhauser v. Schmitt, 45 Wis. 316 (30 Am. Rep. 740). But he sets forth another condition that does excuse, namely, an error of fact, and defines it also, stating the appropriate limitations to be observed as follows: “An error of fact — ignorantia facti — is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. * * This ignorance of facts must be excusable; that is, it must not arise from the intentional neglect of the party to investigate them. The rule which formerly prevailed that if a party might, by the exercise of reasonable diligence, have ascertained the facts, he would not, on the ground of ignorance or mistake, be relieved from his contract, has of late been very much relaxed. The latter cases establish the doctrine that, wherever there is a clear bona fide mistake, ignorance, or forgetfulness of facts, the contract may, on that account, be avoided.”
The general principle was early adopted by this court in Johnson v. McCown, 1 Or. 193. Many cases announce and apply it, and, indeed, it would seem that all the later cases are in unison touching the subject. We cite a few of them only: Jefferson County v. Hawkins, 23 Fla. 223 (2 South. 362); Brewton v. Smith, 28 Ga. 442; White v. Rowland, 67 Ga. 546 (44 Am. Rep. 731); Egbert v. Rush, *5447 Ind. 706; Erkens v. Nicolin, 39 Minn. 461 (40 N. W. 567); Peters v. Florence, 38 Pa. 194; Evans v. Hughes County, 8 S. D. 244 (52 N. W. 1062); Shriver v. Garrison, 30 W. Va. 456 (4 S. E. 660). The Indiana case is of marked analogy to the one at bar on the facts, and has later had the tacit approval of the same court: Stokes v. Goodykoontz, 126 Ind. 535 (26 N. E. 391). The doctrine seems also to have the approval of the Supreme Court of the United States: Hunt v. Rousmanier, 26 U. S. (1 Pet.) 1; Elliott v. Swartout, 35 U. S. (10 Pet.) 137; Bank of United States v. Daniel, 37 U. S. (12 Pet.) 32. The learned authors of the American and English Encyclopedia of Law (vol. 20, 2 ed., 816), say: “ It is one of the fundamental maxims of the common law that ignorance of law excuses no one. It is a maxim founded not only on expediency and policy, but on necessity” — giving as the basis for it the reason stated in Hardigree v. Mitchum, 51 Ala. 151, that, if ignorance of the law were permitted to prevail, the courts would be involved with well-nigh interminable inquiries and embarrassments, so that the administration of justice would become impracticable. The authors further say: “It is therefore applied most rigidly at law, and is only relaxed in equity where the mistake is mixed with misrepresentation or fraud, or where the ignorance of the complainant has conferred upon the defendant a benefit which he cannot in good conscience retain.” So, in volume 15, at page 1102, they affirm that “Although a few of the earlier English decisions and some decisions in the United States maintain a contrary doctrine, the settled weight of authority is that money voluntarily paid in ignorance of law, without fraud or imposition, and with knowledge of all the facts, cannot be recovered back, either at law or in equity,” citing cases from England, Canada, the Supreme Court of the United States, and the courts of twenty-six of the States of the Union.
*545It is unnecessary to go further with the authorities. That the action of indebitatus assumpsit will lie for money paid which in justice and good conscience ought not to be retained is well established, and of the earliest cases upon the subject is Moses v. Macferlan, hereinabove referred to, wherein Lord Mansfield announced the doctrine. The basis of the action is peculiar, in that there is no privity of contract between the parties; but the law implies a promise, hence that the form of action will lie: Brand v. Williams, 28 Minn. 238 (13 N. W. 42). But the question whether a person ought in equity and good conscience to pay over, or whether it is unconscientious for him to retain, what he has received from another, is a question dependent upon the facts of each particular case. The Latin maxim, Ex aequo et bono, most frequently applied in such cases, simply means “in justice and good dealing” (Bouv. Diet.), and what might be against conscience or contrary to justice and good dealing in one case and under one set of facts would not be in another. We may give some instances. Mr. Broom speaks of a case where A., a tenant of B., received notice from C., the mortgagee of B.’s term, that the interest was in arrear, and requiring the payment to her (C.) of the rent due. A., notwithstanding this notice, paid the rent to B., and was afterward compelled by distress to pay the amount over again to C. Held, that the money, having been paid to B. with full knowledge of the facts, could not be recovered back; citing Higgs v. Scott, 7 C. B. *63. Another case is where a party conveyed to another realty lying in a street under a mistake of law on the part of both that, if the street was ever opened by the municipality, the grantee would receive compensation therefor; relying upon a decision of the court that was afterward overruled, and it was held that no recovery could be had for the consideration thus paid for the premises *546under such a mistake: Champlin v. Laytin, 18 Wend. 407 (31 Am. Dec. 382). So, in Erkens v. Nicolin, 39 Minn. 461 (30 N. W. 567), where one paid for a deed to lands which he already owned in ignorance of the rule of law that distances must yield to natural boundaries called for in a deed, and the court held that the money could not be recovered back. So, also, in Evans v. Hughes County, 3 S. D. 244 (52 N. W. 1062), where Evans paid the county for an exclusive ferry franchise which he and the county believed as a matter of law the county was empowered to grant; but, upon its being ascertained that the county had no such authority, and that Evans did not get what he supposed he was getting, an action was instituted to recover the money paid therefor, and the court said “No”; that the mistake was one of law, and that the action would not lie.
So the general rule is that one paying taxes voluntarily, without legal duress or coercion, cannot recover them back, and this applies although they be unconstitutional: 27 Am. & Eng. Ene. Law (2 ed.), 757, 758, and note 3 to 757. In the abstract, it was assuredly against conscience in any of these cases for the parties receiving the money to retain it, for they parted with no adequate or material consideration for it; yet* when connected with the facts of the cases, the courts say that, having paid voluntarily, with knowledge of the facts, but under a mistake of law, the money so paid, is not recoverable, and, in effect, that it is not inimical to the maxim Ex sequo et bono, or against good conscience, for- ’the one receiving to retain it. So, we may put a case very near to the one at bar. Suppose the children of Mrs. Stephens had been the executors' of this estate, and had paid the money that has been paid by these' executors to the defendant under a mere mistake of law, knowing the facts, how would the idea of good conscience or of justice and good dealing affect it? It would *547be said at once that it was not unconscionable for her to retain it, and that no recovery could therefore be had. But in the abstract it would be just as wrong and just as violative of justice for her to retain the money in that instance against legal right, as to retain it against these executors. This is strongly illustrative that it is the- fact that controls, and the error with relation thereto, and not a mistake as to the law; and the law will not imply a promise to repay unless there is mistake or ignorance as to the fact, or unless there is some fraud or deceit, active or implied, that may be said to induce the payment in the first instance. We conclude, therefore, that a mistake as to law, with knowledge of all the facts, there being no fraud or deceit or undue importunity, will not excuse; but, where there is an errbr of fact, bona fide — as where some fact exists that is unknown, or is’ supposed to exist when in reality it does not, not arising from the intentional neglect of the party to inquire as to the real condition, even if accompanied with a mistake or ignorance of the law — a recovery may be had. There is no rational distinction, in legal effect, between a mistake of law and ignorance of the law, and one will not excuse more than the other. We are impressed that the rule is stated too broadly in Clarke v. Dutcher, 9 Cow. 674, that, “where money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it cannot be recovered back,” etc., in that the latter condition will not prevail unless the facts are such as to estop plaintiff to allege that he was without knowledge. The doctrine is better stated in Mowatt v. Wright, 1 Wend. 355 (19 Am. Dec. 508), and Hurd v. Hall, 12 Wis. 125.
2. In view of these considerations, we are clear that the conclusions of law found by the trial court do. not follow from the findings of fact, and that the latter do not support the judgment rendered. The second finding is, *548simply, that plaintiffs paid the money to defendant under the belief that she was entitled to it as a child of Hosea Stephens- under the provisions of the codicil, which means nothing more than that plaintiffs believed that defendant was entitled to the money as heir to Hosea, being his child, and inheriting from him, he being legatee under the codicil, and, so believing, paid the money over to her. Otherwise rendered, it would be in direct antagonism to one theory of the complaint, which is that plaintiffs were informed and believed that Hosea was a legatee under the codicil, that he was alive when it took effect, and- that defendant was entitled to recover the money as his daughter and heir. The information and belief that Hosea was a legatee follow from the information and belief that he was alive when, the codicil took effect, so that the former is á conclusion of law in the premises; but it excludes the idea that they believed that Eva took as a legatee, nor is it alleged anywhere in the complaint that she took as a a legatee under the codicil or the will.
3. The sixth finding is that it does not appear from the evidence that plaintiffs, had any belief or knowledge as to whether Hosea was living at the time of the execution of the codicil, or that the plaintiffs believed that he was living at the time of the death of the testator. The complaint seems to have been drawn upon two theories, or, at least-, they are so incorporated. The first is as we have just stated. If such theory be true in fact, plaintiffs would be entitled to recover, because there would have been a payment under a mistake or error as to the fact of Hosea being alive at the timfe, when in matter of fact he was dead. But the facts as here alleged, the court says by the sixth finding, do not appear by the evidence, so that the plaintiffs have failed to make a case upon that premise. The second idea is that plaintiffs did not know at the time they paid’the money that Hosea was not living *549at the time the codicil became effective, and did not ascertain the fact that he was not named or referred to in the codicil as one of the legatees, and that he was not entitled to receive the legacy mentioned, and that defendant was not entitled to receive the same, until after the money was paid. If these allegations were true, and plaintiffs were not intentionally neglectful in ascertaining the real facts in relation thereto, and if they paid the money assuming bona fide that Hosea was alive at the time when the codicil took effect, when in truth he was not, and hence that he was a legatee, then there was also an error of fact, for which they should be excused and ought to recover. But there is absolutely no finding as to these allegations, and the findings of fact in the other alternative, as we have seen, do not support the judgment.
4. The appellant, after the findings of fact and conclusions of law had been rendered and filed, and before judgment, moved the court to make other findings of fact in the place and stead of the second and sixth findings, and to make two other additional findings, in substance, that at the time the several payments were made the defendant and her guardian claimed and believed that defendant was entitled to receive the money as legatee under the will of the testator, and that the money was paid to her as such legatee by plaintiffs, with full knowledge on their part of all the facts of her relationship to the testator on which defendant’s claim was based, and error is assigned by reason of the court’s refusing them. These requested findings go to the very gist of the action. But it is not in the province of this court to make findings of fact in a law action, nor can we substitute one finding in the stead of another, unless it might be in a. case where no other 'reasonable inference could be drawn from the evidence, which is not apparent here. These are matters exclusively for the trial court.
*5505. Another motion was interposed for judgment dismissing the action, based upon the pleadings, evidence, and stipulations of facts. But this involves findings of facts from the evidence also, and error is not assignable.
For the reason, however, that the judgment is not-supported by the findings of fact, it will be reversed, and the cause remanded for a new trial. Reversed.
Decided 15 May, 1905.