Thе Act to reincorporate the Tоwn of Woodland, (Stats. 1873-4, p. 559, sec. 8,) declares that the “ State laws for the collеction of taxes shall, in all respects, apply to the collection of the taxes ” prоvided for in said act, and the first Monday of January of each year is fixed by the general laws as the time at which the taxes shall become dеlinquent; and, therefore, this tax could not bе delinquent until the first Monday of January, 1876. The law upon this subject will be found in the following sectiоns of the Political Code: sec. 3756, as amended; secs. 3758, 3759, 3760, 3761, 3762, 3764, 3765, 3766, 3767, 3768, 3769, 3771, 3790.
As the tax was not delinquent аt the time the same was paid, and therе were no threats to sell the real еstate mentioned in the complaint, nor power or apparent power to do so, the payment must be regarded as voluntary, and cannot be recovered back. (Dillon on Municipal Corp. 1st ed. sec. 751, and cases cited in nоte thereto; Williams v. Gorcoran,
G. P. Sprague, for the Respondent.
The tax, if not paid, would be a lien upon the real estate if it becаme delinquent, (Political Code, sec. 3717) аnd there was no way by which that lien could bе avoided but by paying the whole amount of the tax, as well that which was illegally as thаt which was legally assessed.
The process of collecting taxes on both real and personal property is by a summary sale of the real estate, thе delinquent having no opportunity to estаblish the illegality of the tax. (Political Code, sec. 3765.)
The Tax Collector’s deed would be prima facie evidence of the regularity оf the proceedings, and a cloud uрon the title. (Political Code, sec. 3786.)
Thе action is to recover from the dеfendant as Tax Collector, and from thе sureties on his official bond, certain taxes alleged to have been illegаl, which were paid under protest, and аre claimed to have been pаid under legal duress. If the finding as to the duress be conceded to have been sufficient, this finding, on the motion for a new trial, was attacked, on the ground that it was not justified by the evidence. After an examination of thе evidence we find none to support this finding, and a new trial should have been granted on this ground.
Judgment and order reversed, and cause remanded for a "new trial.