Upon the same principle as governs cases of the seizure or detention of personal property (ante, Sec. 216), money extorted by the assertion of a fictitious or invalid lien upon real property or by a wrongful refusal to discharge a valid lien has been held recoverable.2 In this case, however, since there is ordinarily no interference with the owner's possession and enjoyment of the property, he should be required to prove, either that the lien constituted a cloud on title, or that special circumstances - such as the necessity of borrowing money on the security of the land - made the immediate lifting of the lien, whether a technical cloud on title or not, a matter of grave importance.1
1 See Pemberton v. Williams, 1877, 87 111. 15. In this case the defendant had sold land to the plaintiff's assignor and had given him a title bond. After several payments had been made upon the purchase price the plaintiff contracted to sell the land to another who demanded to see the deed from the defendant. In order to get a deed the plaintiff was required by the defendant to pay more than was due. It was held in an action to recover the excess that the question whether or not the money was paid under duress should have been left to the jury.
2 Fraser v. Pendlebury, 1861, 31 L. J. C. P1. 1, (refusal to assign mortgage unless improper demand for costs satisfied); Rowland v. Watson, 1906, 4 Cal. App. 476; 88 Pac. 495, (refusal to release lien unless excessive demand paid); Joannin v. Ogilvie, 1892, 49 Minn. 564; 52 N. W. 217; 16 L. R. A. 376; 32 Am. St. Rep. 581, (filing of mechanic's lien based upon an unfounded claim); Fout v. Giraldin, 1895, 64 Mo. App. 165, (refusal to cancel mortgage unless illegal demand satisfied); Wells v. Adams, 1901, 88 Mo. App. 215, (refusal to cancel mortgage unless bonus paid); First Nat. Bank v. Sargeant, 1902, 65 Neb. 594; 91 N. W. 595 ; 59 L. R. A. 296, (excessive amount paid to secure release of mortgage); Kilpatrick v. Germania Life Ins. Co., 1905, 183 N. Y. 163; 75 N. E.
Whether money paid to prevent the wrongful foreclosure of a mortgage may be recovered depends, in large measure, upon the nature of the foreclosure proceedings. If it is a judicial foreclosure that is instituted or threatened, and the owner will therefore have his day in court before his property can be sold, the payment can hardly be said to be made under coercion.1 But if it is a summary foreclosure - as by advertisement and sale under a power contained in the mortgage - duress may reasonably be inferred. In the latter case, by the weight of authority, money paid to stop the proceedings, either by the owner or by a subsequent mortgagee, may be recovered.2
1124; 111 Am. St. Rep. 722, (excessive amount paid to secure release of mortgage). Contra: Savannah Savings Bank v. Logan, 1896, 99 Ga. 291; 25 S. E. 692, (payment of installments not yet due to secure release of mortgage). And see Hipp v. Crenshaw, 1884, 64 la. 404; 20 N. W. 492, (payment of judgment appealed from in order to borrow money on land upon which judgment was lien; held voluntary); Williamson v. Cole, 1875, 26 Oh. St. 207, (usurious interest paid to secure a reconveyance; held voluntary).
1 In Joannin v. Ogilvie, 1892, 49 Minn. 564, 570; 52 N. W. 217; 16 L. R. A. 376; 32 Am. St. Rep. 581, the plaintiff paid off an invalid mechanic's lien in order that he might consummate a loan upon the property and thereby discharge pressing debts. Said Mitchell, J.: "But while the filing of the lien did not interfere with the defendant's possession of the land, yet it as effectually deprived him of the use of it for the purpose for which he needed it as would withholding the possession of chattel property." See also Wells v. Adams, 1901, 88 Mo. App. 215, 225, where the court said: "The case here is that the defendants ' held the plaintiff by the wrists' - they had a large encumbrance on his lands. He was being pressed by other creditors and unless he could secure a release of the defendants' incumbrance, and thus be enabled to make a disposition of the property, he was likely to become a bankrupt, or, at least, suffer a great sacrifice and loss of his property. In order to extricate himself from this embarrassing situation he must have his property disencumbered, and this could be accomplished only by the payment of the defendants' illegal exaction. He was practically confronted with the question whether or not he should pay the defendants the amount exacted, or suffer the serious consequences to be reasonably apprehended from a refusal to do so. The payment under such circumstances, it seems to us, would be under an urgent necessity - under a kind of moral duress. Duress may be shown with respect to real property as well as personal so as to render payment on account of it involuntary and permit it to be recovered back."