54 Tex. 287 | Tex. | 1881
The Galveston Gas Company brought this suit to recover back from the county of Galveston the amount of certain taxes alleged to have been illegally assessed, and to have been paid under pro
This payment was made July 12, 1877, and early in that month, before.making the payment, plaintiff applied to the county commissioners’ court for relief from said assessment, but relief was refused. In December, 1877, after the money had been paid into the county treasury, plaintiff presented its claim for the money to the commissioners’ court, and the same was rejected. This suit was brought in Sepember, 1878. The court sustained a general demurrer to the petition.
This statement is made, as presenting somewhat more fully than has been done by counsel in their briefs, all the facts alleged in the petition. So in disposing of the case, we have not confined ourselves to the precise proposition submitted by counsel on either side.
The proposed sale, to avoid which the payment was made, was under the present constitution, and under the statute of 1876.
Sec. 13, art. VIII of the constitution reads: ££ Provision
Sec. 18 of the act of August, 1876, “regulating the duties of tax collectors,” etc., provides: “ The collector of taxes shall execute and deliver to the purchaser, upon the payment of the amount for which the estate was sold, and costs and penalties, a deed for the real estate sold, which deed shall vest a good and absolute fee in said land to the purchaser, if not redeemed in two years as herein provided,” etc.
That a sale and deed under these provisions would constitute a cloud on the title, and would depreciate the value of the property, hardly admits of question. There are, it is true, authorities which deny that a sale for taxes assessed under a statute which is unconstitutional and void, or for taxes assessed without any semblance of legality, can constitute a cloud on title. Detroit v. Martin, 34 Mich., 170; Cooley on Taxation, p. 542, and cases cited in note. But, after stating this to be the rule, where “ any person inspecting the record and comparing it with the law, is at once apprised of the illegality of the tax,” Mr. Cooley proceeds to say that,- “when the deed given on the sale of the lands for the tax, would, by statute, be presumptive evidence of a good title in the purchaser, so that the purchaser might rely upon that for a recovery of the lands, until the illegalities were shown,
We are further of opinion, that the taxes having been paid under protest to prevent the sale and consequent cloud on the title, the payment was so far compulsory as to allow of a recovery back, if sought with reasonable promptness.
The rule heretofore enforced in this court in regard to the recovery back of taxes illegally exacted, is perhaps more liberal than that sanctioned by the current of authority generally. City of Marshall v. Snediker, 25 Tex., 471; Baker v. Panola County, 30 Tex., 86; Galveston County v. Gorham, 49 Tex., 301 et seq.
These cases recognize that a payment may be compulsory, although not made to reheve the person or goods from seizure or detention, actual or threatened, if made under circumstances creating a moral pressure of “equal influence in perverting the free will.” Galveston County v. Gorham, 49 Tex., supra. Where made to avoid the danger of a heavy penalty, which, however, could only have been enforced by a criminal prosecution, in which the party would have had his opportunity to set up the illegality of the tax as a defense, the recovery back was allowed. 25 Tex. and 30 Tex., supra. On the same principle, we think that the plaintiff here was not com
The reply that the plaintiff might have had its action to remove the cloud is unsatisfactory, for, in the meantime, it would be damaged by being disabled from realizing the value of its property.
It appears, if the averments of the petition be true, that the plaintiff persistently resisted and sought relief against an illegal assessment, and only paid it under protest, when to delay longer was apparently to incur the risk of serious loss. Within, five months after payment, its claim to secure back was presented to the commissioners’ court, and in nine months more this suit was instituted. Under the circumstances stated, we think it unconscientious in the county to retain the amount illegally exacted, and that the demurrer to the petition was improperly sustained.
Appellee claims that the petition shows that the plaintiff applied for relief to the county commissioners’ court of Galveston county, and that by law the decision of that tribunal was final. Under the law then in force the decision of that court, sitting as a board of equalization, on a question of valuation properly referred to it, was final. I. & G. N. R. R. v. Smith County, Tyler Term, 1880. As stated in the petition, the question here was not one of valuation, nor does it appear that the county court or board of equalization had jurisdiction to grant relief in the case.
The judgment is reversed and the cause remanded.
EeVERSED AM) REMANDED.
[Opinion delivered February 12, 1881.]