The defendants demurred separately to the complaint. The demurrers were sustained, and the plaintiff appealed.
Lots three, (3,) four, (4,) and five, (5,) in block five, (5,) of Ba-zille & Bobert’s addition to West St. Paul, .were contiguous lots fronting east on Custer street, lot five (5) being south of lots four (4) and *195three, (3.) Fairfield avenue ran along the south side of lot five, (5.) The length of that lot along Fairfield avenue was 150 feet. The plaintiff’s intestate owned all of the block excepting lot five, (5.) In 1886, for the improvement of Fairfield avenue, two separate assessments were made upon lots three, (3,) four, (4,) and five, (5,) lots three (3) and four (4) being included in the assessment by reason of the erroneous belief that they, as well as lot five (5,) fronted upon Fairfield avenue. The assessments not being paid, judgments therefor were duly rendered against the three lots jointly in the years 1886 and 1887, respectively, and thereupon the property was sold, as provided by law, to certain private parties. For reasons stated in the complaint, the intestate did not know that any of these proceedings affected the lots owned by him until after the judgment sale.
In May, 1889, the intestate, acting through an agent, redeemed the three lots from such sales, paying to the treasurer of the city for that purpose the sum of $1,728.10. When this redemption was made, the agent of the intestate and the city treasurer supposed that lot five (5) belonged to the intestate, and that all of the lots fronted on Fairfield avenue, and hence were liable to be so assessed. On learning the facts, the intestate demanded of 'the city treasurer a return of the money so paid for redemption. Such repayment was refused, for the alleged reason that the treasurer had paid the money to the persons who had purchased at the sales from which such redemption was made.
The complaint shows no right to recover against the city. Upon the facts stated, the judgment was not invalid. No defect or irregularity in the proceedings is alleged, unless the mistake as to the situation of the property is to be excepted. Indeed, it is expressly averred that the judgment was duly rendered. The fact that the plaintiff’s two lots did not abut on the street for the grading of which they were assessed did not affect the jurisdiction of the court or the validity of the judgment. They were liable to assessment as property which might be deemed benefited by the improvement, Sp. Laws 1874, ch. 1, subch. 7, §§ 3, 14, 23, 26; (Comp. Charter 1884, §§ 130, 139, 159, 162;) and even if there was a mistake as to the fact, in the proceed*196ings preliminary to the judgment, the judgment was valid, Dousman v. City of Si. Paul, 23 Minn. 394. The assessments were merged in the judgment, and whether they were properly or erroneously made is not now to be considered. The appellant cites a provision of the charter 1’elating to sidewalks which has no application to the case before us.
If, upon the facts stated, the action is maintaináble against the city, it .is as in assumpsit for money had and received; and so the plaintiff treats the case, resting the right of recovery upon the alleged mutual mistake of fact. But it is not maintainable on that ground. To justify a recovery in such an action, the money must have been received under- such circumstances that, in equity and good conscience, the defendant ought not to retain it. The mistake, where that is the foundation of the action, must relate to a fact which is material, essential to the transaction between the parties. A payment made under the influence of a mistake, concerning a fact which, even if it were as it is supposed to be, would create no legal obligation, but merely operate as an inducement upon the mind of the party paying the money, the other party being without fault, would not justify a recovery as for money had and received. Aiken v. Short, 1 Hurl. & N. 210; Leake, Cont. 103. See also Chambers v. Miller, 13 C. B. (N. S.) 125.
The city was entitled to receive the money for redemption of the property, if any- one having the legal right to redeem should elect to do so. It was not only legally authorized, but required, to receive the money, and neither its authority nor obligation was in any manner affected by the fact concerning which a mistake is alleged. It made no difference to it whether the plaintiff owned lot five (5) or not, nor whether or not lots three (3) and four (4,) which the plaintiff did own, fronted on the street improved. Such facts were wholly immaterial, so far as its right and duty to receive the money was concerned. The plaintiff’s property, lots three (3) and four (4,) had been sold.pursuant to the judgment, in connection with lot five, (5.) The plaintiff was entitled to redeem the whole property by paying to the city the money necessary therefor. It was necessary for him to do this if he would save his own property. If *197he chose to do it, the city was equally bound to receive the money, whatever the fact might be concerning which a mistake is alleged. Nor was the supposed obligation of the plaintiff in any way affected by the alleged mistake. He was at liberty to pay or not, as^ he should deem to be most for his interest. Plainly, the fact in question was in no way material, except as it might influence the plaintiff in determining for himself whether or not he would make redemption. It was not in any proper sense a mutual mistake of an essential fact. As he voluntarily paid the money, and thereby effectually redeemed his land, and as the city ought to have received it, irrespective of what may be the truth as to the fact in question, it is under no legal or moral duty to repay it merely because his election to pay was influenced by an erroneous conception as to a fact which concerned him only, and not the other party.
Another reason would stand in the way of a recovery. The refusal of the city treasurer to comply with the demand of repayment was placed on the ground that the money had been paid to the purchasers under the judgment sale, who were legally entitled to receive it. The complaint, alleging this fact, does not rebut the inference, naturally to be drawn against the pleader, by alleging that in fact it had not been so paid. But we have preferred to place our decision on the broader ground above stated. The demurrer of the city was properly sustained.
We are not certain that we quite understand the position of the appellant as respects the other defendant, the administrator of the estate to which lot five (5) belonged. Both in his original and reply briefs it is clearly intimated that this defendant was joined as a party with the city only upon the theory that it might be considered by the court that this was necessary, even as respects the cause of action alleged against the city. If the case were so treated, the fact that there is no right of action against the city would also control the decision upon the demurrer of the other defendant. But the appellant seems to go further in his brief, and to claim a right of recovery against this other defendant; and this relief is prayed in the complaint. There may be a right of recovery, but the rules .of pleading forbid such a joinder of different causes of action against separate *198defendants, — 1878 G. S. ch. 66, §118; Trowbridge v. Forepaugh, 14 Minn. 133, (Gil. 100,) — and for this reason the demurrer should be sustained. The grounds upon which a recovery is sought against the different defendants are essentially different.
(Opinion published 51 N. W. Rep. 817.)The causes of action are quite distinct. There is no joint liability, and, if we assume that there is a several liability on the part of the different defendants, the liability of each is distinct from that of the other, and rests upon different facts as well as different principles.
Both the orders appealed from are affirmed.