There is evidence in tbe record tending to show that tbe facts are not so favorable to tbe plaintiff as here stated. However, there was a judgment of nonsuit and we consider tbe evidence in tbe light most favorable to tbe plaintiff.
An action to recover money paid under a mistake of fact is an action in assumpsit and is permitted on tbe theory that by such payment tbe recipient has been unjustly enriched at tbe expense of tbe party making tbe payment and is liable for money bad and received. It is well settled that money paid voluntarily with knowledge of tbe facts cannot be recovered back. If a man chooses to give away bis money, or to take bis chances whether be is giving it away or not, be cannot afterwards change bis mind. 2 R. C. L., 784. Likewise, one who waives investigation and pays money after bis attention has been called to tbe possibility of tbe existence of facts which might affect bis decision to pay is not acting under a mistake of fact in tbe legal sense. He cannot carelessly settle, trusting to future investigation to show mistake of fact which will enable bim to recover back tbe amount paid. If tbe payment is made by a mistake which arose from tbe fault or negligence of tbe party paying tbe money, and it cannot be recovered without prejudice to tbe party who has received it, tbe action will not lie. 64 Am. Dec., 631, note. Tbe plaintiff must show more than ignorance of tbe fact which implies a total want of knowledge in reference to tbe subject matter. He must establish a mistake of fact which admits knowledge, but implies an unconscious forgetfulness or a wrong conclusion. Furthermore, to maintain tbe action it must be made to appear that tbe defendant bad received or obtained possession of tbe money of tbe plaintiff to which be *258is not justly entitled and which in equity and good conscience he ought to pay oyer to the plaintiff.
Measuring the plaintiff’s evidence by these fundamental principles of law governing his cause of action, it appears that the judgment below must be affirmed.
In the argument here the plaintiff insists that the payment by the plaintiff was made under duress. As to this, we do not consider that there is sufficient allegation in the complaint to support the contention, and there is no sufficient evidence to sustain that theory of plaintiff’s cause of action.
The plaintiff’s allegation of mistake of fact is: “The plaintiff having been notified of the arrest and imprisonment of his nephew, and being ignorant of the fact that the said checks had been paid by the note and mortgage as aforesaid, and in order to obtain the release of his nephew, paid the said checks by paying the amount thereof into the hands of the magistrate, etc.”
Accepting for the time being the plaintiff’s contention that there had been a novation or payment of the debt evidenced by the checks by the execution of the note and mortgage, it appears from the record that Jones had advised the plaintiff that he had made some adjustment with Spruill -under which the defendant was to accept a note and mortgage. Notwithstanding this fact the plaintiff went to Norfolk and made the payment to the magistrate without choosing to visit Jones and ascertain the true facts, or to make other investigation until after he had paid the money.
The record, however, does not sustain this contention. Jones testified: “It was agreed that he (Spruill) was going to take a second mortgage as security for the checks for what I owed him. He was still to hold the checks until it was all paid. ... It was agreed that he would hold the cheeks until the mortgage was paid.” The debt evidenced by the checks, on plaintiff’s own evidence, was still outstanding and unsatisfied at the time plaintiff made the payment.
That the plaintiff voluntarily made the payment in order to procure the discharge of his nephew from arrest appears from his testimony as follows: “I voluntarily paid it as a loan to my nephew, Frank Jones, to be paid for the redemption of these cheeks. I paid it for Frank to get him out of jail. I did not have to pay it. His mother requested it.”
The only reasonable conclusion to be drawn from this testimony and the other evidence offered by the plaintiff is that the plaintiff acted voluntarily and intentionally in complete ignorance of the facts as he contends them to be, and not through any mistake or misinformation as to the true facts or through any temporary forgetfulness thereof. The amount paid was due the defendant and he was justly entitled thereto. *259Tbe defendant bas surrendered the cheeks, at least one of which apparently was issued in violation of statute, and he cannot be put in statu quo. Therefore, it cannot be said that in equity and good conscience the defendant should be required to return the money so received.
In our opinion, the evidence does not tend to show that the payment was made by the plaintiff under duress or by mistake of fact. In addition thereto, the plaintiff has failed to establish an essential element of his cause of action — that the defendant in equity and good conscience should not be permitted to retain the money paid.
Affirmed.