FLEETWOOD v. CITY OF NEW YORK.

2.SANDF. 475 (SUPERIOR CT. OF NEW YORK CITY).—1849.

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ASSUMPSIT, brought to recover the sum of $2,527.22, paid by Fleetwood, the plaintiff, to the defendants, February 27, 1845, to redeem several lots of ground belonging to him, from a sale thereof, made by the defendants on the 13th of June, 1843, under an alleged assessment for filling the lots. SANDFORD, J.—* The important question remains, can the plaintiffs recover back the money paid? The payments were not made under any mistake of fact. The plaintiffs declared and insisted that the assessments and the sales were void; and the referee has adjudged that they were void. There was no mistake of law even; for the plaintiffs knew perfectly well that a sale under a void assessment conferred no title upon the purchaser.

It is contended, however, that the payments were involuntary, and were made by compulsion. That the sales constituted a cloud upon the title, which cloud circumstances compelled the plaintiffs to remove; and it is intimated by the points made in Mr. Post's case, that his payment was made through coercion, oppression, imposition, fraud, or by taking undue advantage of his situation, or by wrongfully exacting it, colore officii.

1. In regard to the cloud upon the title. The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity, and if one be wanting, no title is shown. Of these links in the chain, the plaintiff insists that three at least never existed, viz.: the original ordinance directing the filling, the assessment of the expense, and the advertisement for redemption. Each of these proceedings forms an essential part of the record of the assessment title, and in their absence, such title is void upon its face. See the observations of the Chancellor, in Wiggin v. The Mayor, etc., of New York (9 Paige 16), and Van Doren v. The Same Defendants (Id. 388). A conveyance or judgment, void upon its face, does not constitute a cloud upon the title; and the assertion of a title under such a conveyance, or of a lien by virtue of such a judgment, does not afford a ground for equitable interference; much less does it constitute legal compulsion. There are cases of duress of personal property in which payments for its relief are deemed involuntary, and the money may be recovered back. Most of these have arisen upon seizures of goods under revenue or excise laws, and by public officers acting under process or warrant of law. The principle has been extended, occasionally, to cases where bailees, or others, who came into the possession of goods lawfully, have exacted more than was due, before they would relinquish such possession. It is founded upon the movable and

perishable character of the property, and the uncertainty of a personal remedy against the wrongdoer. The reasons for the rule are wholly inapplicable to real estate, and we are not aware of any instance in which it has been applied to that species of property. On this subject of payments compelled by duress of property, we refer to Chase v. Dwinall (7 Greenh. 134); Ellicott v. Swartwout (10 Peters 137); and Clinton v. Strong (9 John. 370).

It cannot be said, therefore, that the payments in question were made through compulsion, coercion or oppression. There is no pretense that there was any imposition or fraud in the case. There was no advantage taken of the situation of the parties, nor was the money in any sense exacted from them. The corporation, whose agent, the street commissioner, received the money, was not only passive in respect to the payment, but so far as the case discloses, had no interest in the matter. The money, if the lots were redeemed, belonged to the purchasers; and no part of it was to be retained by the corporation, and it was to the latter totally indifferent whether the redemption should be made or omitted.

The simple truth of the affair is this. The corporate authorities had sold these lots for assessments which they and the purchasers alleged to be valid in fact and in law. The original owners were entitled to redeem, on paying the bids with interest to the purchasers, through the street commissioner. Those owners averred and insisted that the assessments were absolutely void, both in fact and in law, and that the sales and conveyances were equally void. Thus the parties were at issue, each claiming a right, and the plaintiffs fully apprised of the grounds of the opposing claim. It became desirable for the one plaintiff to sell his lots, and for the other to mortgage his, and the assessment claims presented an obstacle to the accomplishment of their wishes. The plaintiffs, rather than forego the opportunity of mortgaging and selling, chose to pay the assessments claimed; instead of abiding the result of a litigation. testing their validity.

In our view, this clearly constituted a voluntary payment, which according to a well settled and valuable principle of law, cannot be recalled. Silliman v. Wing, 7 Hill 159; Supervisors of Onondaga v. Briggs, 2 Denio 26, 39; Brisbane v. Dacres, 5 Taunt. 143: Robinson v. City of Charleston, 2 Richardson 317. And see Ege v. Koontz, 3 Barr's Penn. R. 109.

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WHITNEY v. CITY OF PORT HURON.

88 MICH. 268.-1891.

MORSE, J.-The plaintiff sues to recover taxes paid by her under protest on a special assessment levied for the paving of Pine Grove Avenue, in the city of Port Huron. She had judgment in the court

below, the verdict of the jury being directed by the circuit judge in her favor. * * * *

It is also claimed that her payment of the tax was voluntary. The tax was paid April 2, 1886, and across the face of the receipt was written as follows: "Paid under protest, to protect property from being sold, and on account of taxes being illegal." The city treasurer had advertised the plaintiff's property for sale, and she had the right to presume that he would proceed with the sale. The fact that the sale would have conveyed no title to the puchaser on account of the illegality of the tax, or that she could have removed the cloud upon her title caused by such sale by legal proceedings had no bearing upon her right to pay the tax under protest, and thereby stop the sale. Nor was it any the less an involuntary payment under the law. If, because a tax is illegal, and a sale of property under it would be void, a payment to prevent the seizure or sale of one's property cannot be considered an involuntary payment, then our statute providing for the payment of taxes under protest would be of no force or use. If the citizen's property is threatened with seizure under a tax warrant, or his real estate is advertised for sale to collect delinquent taxes, he is, equally in both cases entitled to free his property by a payment of the tax under protest, and such payment will not be considered voluntary. It was held in Detroit v. Martin, 34 Mich. 170, that one who has full knowledge of all facts, being conclusively presumed to know the law, is presumed to know that an assessment, laid under a statute which is unconstitutional and void, cannot be made the basis of a sale that could constitute any cloud upon his title, and therefore to know that he could not be injured by it; and that a payment of a tax under protest, in such a case, where no seizure of goods or of the person had been made or threatened, and where the officer had no authority to compel payment otherwise than by a sale of land, which could injure no one, would not be other than a voluntary payment, as a protest would not change the character of the payment. It was held also that a sale of the land under such circumstances would not create a cloud upon the owner's title. This may be good law when applied to proceedings under an unconstitutional enactment, which is no law, and is held to confer no rights upon any one, as all must be presumed to know that it is unconstitutional and void; but it cannot be applied to cases where the statute under which the proceedings to levy the tax are taken, is constitutional, and where the illegality of the tax is claimed from irregularities or defects in the statutory proceedings. If it were so, it would require of the landowner a greater knowledge of the law than attorneys, or even courts, possess. For instance, in the present case, able attorneys for the defendant are claiming that the tax paid by the plaintiff was a legal one, and that all the proceedings in assessing it were lawful; yet at the same time they argue that, if it should be determined by this court to be illegal for any reason, then the plaintiff's payment must be con

sidered a voluntary one, and she cannot recover what she has paid, because she and every one else are presumed to know that the tax is void, and that a sale under it could convey no title, and therefore cast no cloud over her title. But the fact remains, as every one knows, that a tax-deed or any other purported conveyance of land does cloud the title, and that it can never be sold or exchanged as readily, and seldom for as great a price, as when unincumbered, although it may be patent to the courts that such deed or conveyance is void and of no consequence, as far as the holding of the title is concerned; and, in my opinion, the owner of the land has the right, in law and equity, to treat every such tax-deed or other conveyance as a cloud upon his title, and to take such steps to get rid of it, or to prevent its issue or record, as the law authorizes, when the title is actually clouded, as defined by some of the authorities. A cloud upon a title is but an apparent defect in it. If the title, sole and absolute in fee, is really in the person moving against the cloud, the density of the cloud can make no difference in the right to have it removed. Anything of this kind that has a tendency, even in a slight degree, to cast doubt upon the owner's title, and to stand in the way of a full and free exercise of his ownership, is, in my judgment, a cloud upon his title which the law should recognize and remove.

The third objection is that the protest of plaintiff was not sufficiently specific. Across the face of the receipt for the taxes paid by the plaintiff was the following: "Paid under protest, to protect property from being sold, and on account of taxes being illegal." In support of this objection we are cited to Louden v. East Saginaw, 41 Mich. 26, 2 N. W. Rep. 182; Lumber Co. v. Crystal Falls Tp., 60 Mich. 514, 27 N. W. Rep. 666; Iron Co. v. Crystal Falls Tp., 60 Mich. 79, 26 N. W. Rep. 840. The two last cases do not apply, as the protest was made under a special statute. In Louden v. East Saginaw the objection to the tax did not go to the jurisdiction of the city to enter upon the work, but to irregularities in the assessment of the tax, and it was held that the plaintiff should have pointed out more specifically his reason for his objections to the tax, and why he asked that the assessment against him should be refunded. It was said: "The case stands on a very different footing from one relating to an entirely illegal assessment. The only illegality here was in a notice which may or may not have been seen by the parties." Louden v. East Saginaw, 41 Mich. at page 22, 2 N. W. Rep. 182. In the present case the claim is that the whole proceedings were void, and without jurisdiction. A case involving the legality of the proceedings to pave Pine Grove Avenue had been decided in this court before the council were asked to refund this money, and that body then well knew that the whole proceeding had been declared void for want of jurisdiction, for the reason that the resolution providing for the grading and paving of the street had not been approved by the mayor as provided by the charter of Port Huron.

Twiss v. City of Port Huron, 63 Mich. 528-532 30 N. W. Rep.

177.

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The judgment is affirmed with costs. The other justices con

curred.

GORDON, J., IN MONTGOMERY v. COWLITZ COUNTY.

14 WASH. ST. 230.-1896.

THERE is much conflict in the authorities as to whether, under the circumstances of a given case, a payment is to be regarded as voluntary or compulsory, especially where the payment is made to prevent a threatened sale or interference with real estate. Without attempting any analysis of the many cases bearing upon that question, we are satisfied to adopt the rule announced in Detroit v. Martin, 34 Mich. 170: "How would such sale have affected plaintiff's right or title thereto ? Would such sale have constituted a cloud upon his title? Assuming that it would, in order to prevent this, he could have paid the amount under protest, and afterwards have maintained an action to recover it back. If a sale, under the facts stated, would not have constituted a cloud upon his title, then it may be at least doubtful whether the plaintiff has any remedy. And we may add that there is much authority to be found in support of this view. Bruecher v. Village of Port Chester, 31 Hun 551 (affirmed in 101 N. Y. 240, 4 N. E. 272); Mills' Guardian v. City of Hopkinsville, (Ky.) 11 S. W. 776; Whitney v. City of Port Huron, 88 Mich. 268, 50 N. W. 316; Bucknall v. Story, 46 Cal. 589; State v. Nelson, 41 Minn. 25, 42 N. W. 548; Seeley v. Town of Westport, 47 Conn. 294; Guy v. Washburn, 23 Cal. 111; Stephan v. Daniels, 27 Ohio St. 527; Valentine v. City of St. Paul, 34 Minn. 446, 26 N. W. 457.

This brings us to the question of whether the sale which was here threatened would, if consummated, have created any cloud upon appellant's title. Upon the part of the respondent it is contended that the lands were not subject to taxation, and that the assessment and all subsequent proceedings were absolutely void, and that by a sale, as was contemplated, no cloud would have been created upon appellant's title. "A cloud upon one's title is something which constitutes an apparent incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole, or some interest in it. An illegal tax may or may not constitute such a cloud. If the alleged tax has no semblance of legality; if, upon the face of the proceedings, it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record, and comparing it with the law, is at once apprised of the illegality, the tax it would then seem, could neither constitute an incumbrance nor an apparent defect of title, and there