Anderson v. McClenathan, No. 4,636

No. 4,636 | Mont. | Feb 27, 1922

MR. JUSTICE COOPER

delivered the opinion of the court

Lafayette S. Briggs died in Gallatin county November 10, 1918. He left a will in which he made specific bequests to be paid upon his death, and devised and bequeathed the income from the rest of his property to his wife, Lydia G. Briggs, during .her lifetime. The estate consisted of 'a farm and other property. Under the terms of his will, upon his death, possession, management and control of all the remaining property passed to her as life tenant. The rents, issues and profits in their entirety were enjoyed by her until September 16, 1918, the day of her death, when the plaintiff, the sister of Mr. Briggs, under the will of her brother became the sole owner thereof, and she has since enjoyed its possession, management, and the profits derived therefrom. By section 4628 of the Revised Codes of 1907 the taxes became a lien upon all the property of the estate and an encumbrance thereon from the first Monday in March, which, if not paid at 6 o’clock P. M. November 30, would become delinquent, and ten per cent added thereto as a penalty for nonpayment. (Sec. 2622.)

The complaint alleges that the profits derived by the widow from the property were greatly in excess of the taxes levied and imposed thereon annually; that the defendant, as executrix of the last will and testament of Lydia G. Briggs, refused and neglected to pay the taxes for the year 1918, and, in order to avoid the penalty provided by law for nonpayment, she (the plaintiff) paid the sum of $740.52 to the treasurer of Gallatin county as taxes for the current year. On May 7, 1919, she presented to the defendant in her representative capacity a claim in the amount named, which was disallowed. On the following day this action was commenced. A demurrer was filed attacking the complaint upon the ground that it did not state a cause of action. This demurrer the court sustained, and entered the judgment from which the nlaintiff appeals.

Upon the ground that the defendant’s refusal to pay the ' taxes upon her demand making it legally necessary for her (the plaintiff)-to pay them to save them becoming delinquent, she brought this action.

As between the life tenant and the plaintiff, the general [1] taxes and other annual charges against the estate are to be paid by the former. (Rev. Codes 1907, sec. 4534.) The annual levy of taxes is not made until the board of county commissioners meets on the first Monday in August. The exact amount the taxpayer is to pay is not known until the county clerk has received from the state board of equalization a statement of the changes made by it in the assessment-book of the county or in any assessment contained therein (sec. 2607), and has entered in a separate money column in the assessment-book the total amount of the taxes and the columns of total value of property in the county as corrected by direction of the state board of equalization (section 2608); and, on or before the first Monday of October, the county clerk has delivered a copy of the “corrected assessment-book” to the county treasurer, supplemented by his affidavit reciting that he has corrected it, made it conform to the requirements of the county and state boards of equalization, reckoned the respective sums due as taxes, and “added up the columns of valuation, taxes and averages.” Section 2611 requires him also, on delivering the “Duplicate Assessment-Book” to the treasurer, to charge the latter with the amount of taxes levied; and section 2612, that he shall verify by affidavit all the statements made by him under the provisions of -Chapter 7. On the third-Monday in December the county treasurer must compare the duplicate with the original assessment-book, and mark “paid” in the latter every item so marked in the former (section 2623), and deliver to the county clerk a complete list of all persons and property then owing taxes (section 2624). On or before the last Monday of each year the county clerk must publish the delinquent list (section 2629) once a week for three successive weeks (section 2631), designating the time and place of sale (section 2632). The date of sale must not be less than twenty-one nor more than twenty-eight days from the first publication (section 2633), so that approximately seven weeks must elapse before the property upon which taxes are in default can be sold. Was the payment voluntarily or involuntarily made?

The complaint does not aver in whose name the property was assessed at the time the defendant refused the plaintiff’s demand that she pay the taxes. Nor does it, directly or by inference, allege the precise time when her demand was refused. For aught the pleading shows, there may have been various reasons why defendant was not then ready or able to pay them. Yet, had the plaintiff given her the time and opportunity allowed by law, she might have paid the taxes before delinquency, and this litigation would then have been avoided. Here it may be suggested that the same legislative authority which created the lien on the first Monday in March also gave the taxpayer the choice of time and occasion, between receipt by the county treasurer of the “Duplicate Assessment-Book” (section 2609) and 6 o’clock P. M. November 3-0 (section 2622) to discharge it—a right no less authority can abridge or destroy. So that, the plaintiff having paid the taxes imposed by law upon another, and that, too, before default, there is no showing of duress, as defined by section 4975, nor of such pressing necessity as to make the payment involuntary or under compulsion.

In Clarke v. Dutscher, 9 Cow. (N. Y.) 674, it was held that money paid with full knowledge of the facts and circumstances, or with means of such knowledge, could not be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. “He shall not be permitted to allege his ignorance of law; and it shall be considered a voluntary payment.”

In Forbes v. Appleton, 5 Cush. (Mass.) 115, it was held that a payment of money, in order to prevent the obligee in a bottomry bond from enforcing the same by taking possession of the vessel, was not a compulsory, but a voluntary, payment, which, if the money demanded was not due, did not give the debtor a right of action to recover it back, although he declares at the time of payment that he makes it under coercion, and intends to reclaim the money by action. In its opinion the court rPmarked that it seemed to be nothing beyond the ordinary ease of a voluntary . payment of money made to avoid a lawsuit. “The party demanding the money had not the actual possession of the vessel, which was the subject of the bottomry bond, and could not proceed forthwith to levy upon the same, by means of any process in the nature of an execution or warrant of distress.”

In Mayor v. Lefferman, 4 Gill (Md.), 425, 45 Am. Dec. 145, after a careful review of the numerous authorities upon the subject of payments, the court say: “A payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual or existing duress, imposed upon it by the party, to whom the payment is made.”

In the note to the ease last cited (45 Am. Dec. 153) will be found the following: “The rule allowing a party to recover money which he has once paid, on the ground that it was paid under compulsion, is intended only for the relief of those who are entrapped by sudden pressure into making such payménts, and who have no other means of escaping an existing or imminent infringement of their rights of person or property. Where a party has time and opportunity to relieve himself from his predicament without making such a payment, by a resort to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary and he cannot recover” (citing numerous cases.) On page 164: “The tax must also be delinquent, and the collector must have the delinquent list, or other warrant in his hands, so as to have it in his power to make an immediate seizure of goods.”

The authorities clearly mark the distinction, always to be noted, between the cases where the officer, armed with legal process, is about to seize the person or property, and those involving transactions between private persons standing upon their legal rights as between each other, neither person nor property being in imminent danger of seizure or detention. For a full discussion of the subject, see the extensive note following the case of New Orleans etc. Co. v. Louisiana etc. Co., 94 Am. St. Rep. 395. Under the title “Payment,” in 22 Am. & Eng. Ency. of Law, page 611, this will be found: “The payment of a tax before it has become delinquent and enforceable, in order merely to secure rebates or discounts, or to escape penalties for delinquency, is voluntary.”

The payment by plaintiff on November 27 of taxes which could not become delinquent until 6 o’clock P. M. November 30 was made to anticipate a penalty,'and to make the defendant her debtor upon a claim which could not mature for three days to come, and was therefore voluntarily made.

There being nothing harsh or unjust in the application of the rule established, the judgment appealed from is affirmed.

Affirmed.

Me. Chief Justice Brantly and Associate Justices Holloway and Galen concur! Mr. Justice Reynolds, being absent, takes no part in the foregoing decision.