This is a suit brought against the defendant under section 7019, Revised Statutes 1919, to recover the sum paid by plaintiffs for a patent to some land, issued by the defendant. A judgment was rendered against defendant in the lower court and it appeals.
As we view the case, it is one falling within the statute upon which the suit is based; it, therefore, results that the judgment must be affirmed.
Sufficient to make the issue clear; the plaintiffs were, at the time the patent was issued by the county court forming the basis of this suit, the owners of the land for which the patent was issued. A patent had been issued years ago by the county court to this land and these plaintiffs were the owners by mesne conveyances. They had paid the taxes, and after the second patent was issued it was judicially determined that they had good title to the land under the first patent. At the time, however, that they paid the money sued for on the second patent the county court was claiming title to the same land and offering it for sale at $1.25 per acre to any one who would pay that amount, and offering to issue a patent thereto. Plaintiffs were claiming title under the first patent issued *Page 466 but in order to prevent someone else from buying, they went to the county court and bought and paid for the second patent. It was then found, by the suit instituted, that plaintiffs' title was good under the first patent. It therefore resulted in plaintiff's paying the county for the second patent to land that they already owned. The county, therefore, when it took the money for the second patent, was taking it on land that it did not own and which the plaintiffs owned. The suit under this statute is for money had and received.
While the statute was intended to protect third parties who had paid money to a county for a patent that it had no right to issue, the primary intention was to require a county to return money received by it for a patent unlawfully issued. We, therefore, think that it should apply to a rightful owner who has paid money under mistake as well to a stranger or bona-fide purchaser who has paid his money to a county for a patent which the county had no legal right to issue. Construing this statute as we do, makes it unnecessary for any discussions of a voluntary or involuntary character of payment.
The statute is intended to permit a recovery of the amount paid by a bona-fide purchaser of land from a county court where such county has already issued a patent conveying good title. It would have served no useful purpose for the plaintiffs, in order to strictly follow the statute, to have relinquished to themselves, "the prior purchasers holding a prior patent to such lands." Entertaining these views it results that the judgment of the trial court is affirmed. Cox, P.J., and Bradley, J., concur. *Page 467