There is, however, some authority for the proposition that one paying under mistake of fact, which he could have disknowledge he has the knowledge itself." 2 Chitty Cont. (11 Am. Ed.) 930; quoted in Brown v. College Corner, etc., Co., 56 Ind. 110; which in turn is quoted in Stotsenburg v. Fordice, 142 Ind. 490; 41 N. E. 313, 810.

4McKibben v. Doyle, 173 Pa. St. 579; 51 Am. St. Rep. 785; 34 Atl. 455.

5 Merrill v. Brantley, 133 Ala. 537; 31 So. 847.

6 Glenn v. Shannon, 12 S. C. 570.

7 Kelly v. Solari, 9 M. & W. 54; Houser v. McGinnas, 108 N. C. 631; 13 S. E. 139; Guild v. Baldridge, 2 Swan. (Tenn.) 295.

8 Houser v. McGinnas, 108 N. C. 631; 13 S, E, 139.

81 covered by due diligence cannot recover such payment.1 So a debtor who makes a payment under a mistake of a fact which he would have known had he used ordinary diligence in examining his receipts, cannot recover.2 So it has been held that as an executor has the means of knowing the solvency of the estate, he cannot recover a payment made under a mistake of fact as to such solvency.3 So an administrator who believing that the estate of his principal is solvent pays a note of such principal cannot recover a payment in excess of the dividend which such estate pays from a surety on such note, although the surety would have been obliged to pay the note had the administrator not done so, and though the loss will fall on the administrator personally.4 No relief can be had for mistake of a fact which knowledge of which the party making the mistake was specially charged.5 Thus where A and B, who were to furnish timber to X agree that it should all be furnished in A's name, and he should draw the money and pay B, and A drew some of the money, giving credit for the rest, and paid B a greater proportion of the cash paid in than corresponded to the share of timber furnished by B, though less than was due B for the timber, it was held that A was bound to know how much timber B had furnished as compared with A, and hence that A could not recover an excess of payment, even assuming that B was entitled only to his proportionate share of the cash paid in.6 Where it was the sheriff's duty to look up municipal liens and assessments upon property which he has sold before distributing the funds, a sheriff who overlooks a lien, and pays money to the mortgagee, cannot recover from such mortgagee the amount which the sheriff is afterwards compelled to pay to the city.7 A payment by a mistake of fact, of which fact the party making the payment has constructive notice cannot be recovered. Thus where a city elected to take part of the land under lease for public use, and by the statute such election conveyed the legal title in such part to the city, a lessee, who after such election has paid the entire rent to his lessor, cannot recover from him an amount proportioned to the value of the property thus taken by the city; since, even if he has no actual notice of such election he is, as a party to the proceeding, bound to take notice.8

1 Alton v. Bank, 157 Mass. 341; 34 Am. St. Rep. 285; 18 L. R. A. 144; 32 N. E. 228. Brummitt v. McGuire, 107 N. C. 351; 12 S. E. 191; Stevens v. Head, 9 Vt. 174; 31 Am. Deo. 617; Proudfoot v. Clev-enger. 33 W. Va. 267; 10 S. E. 394.

2 Brummitt v. McGuire, 107 N. C. 351; 12 S. E. 191.

3 Paine v. Drury, 19 Pick. (Mass.)

400; Carson v. McFarland, 2 Rawle (Pa.) 118; 19 Am. Dec. 627; Shri-ver v. Garrison, 30 W. Va. 456; 4 S. E. 660.

4 Proudfoot v. Clevenger, 33 W. Va. 267; 10 S. E. 394.

5 Simmons v. Looney, 41 W. Va. 738; 24 S. E. 677.

6 Simmons v. Looney, 41 W. Va. 738; 24 S. E. 677.