Powell v. Board of Supervisors

46 Wis. 210 | Wis. | 1879

Lyon, J.

The averments in the complaint show that the taxes in question were illegally levied for want of the required statements of the district clerk. Matteson v. The Town of Rosendale, 37 Wis., 254.

It is well settled in this state and elsewhere, that money paid by compulsion on account of a void tax may he recovered in an action against the municipality receiving it. There are several decisions of this court to that effect;

It is equally well settled, that, if a person voluntarily pay a void tax, with knowledge of the facts which render it void, he cannot recover back the money thus paid. See Burroughs on Taxation, 267; Philips v. Com'rs Jefferson Co., 5 Kan., 412; and cases cited in briefs of counsel.

No claim is made that the plaintiff made the deposit and redemptions in ignorance of the facts which invalidated the taxes. Hence, the only question to be determined is, Hid the plaintiff pay the taxes under compulsion, or voluntarily?

There was no necessity whatever for making the deposit in the foreclosure action. The want of the statements of the district clerk went to the basis or groundwork of the tax, and was available to the plaintiff as a defense to the tax deed without the deposit. Philleo v. Hiles, 42 Wis., 527. The deposit was therefore entirely voluntary.

We think the redemptions also were voluntary. When made, there was no process by which payment of the taxes could be enforced. The plaintiff was not liable to arrest, nor his goods to seizure therefor. If the certificates or deeds were apparent clouds upon his title to the land, he had a sure and easy remedy to remove such clouds without redeeming from the tax sales.

We have been referred to no case which holds that a person may recover back money paid on account of an invalid tax, under such circumstances. Neither are we aware of the existence of any rule of law which will sustain such a recovery. In Marsh v. The Supervisors of St. Croix Co., 42 Wis., 355, the judgment went upon an entirely different principle. In that case “ lands were sold to the county for the nonpayment of taxes assessed thereon, but to which they were not subject, and the owners purchased the outstanding certificates from the assignee of the county, and also took quit-claim deeds from him of such of the lands as had been conveyed to him by tax deed.” It was held that this was not a voluntary redemption of the land, and very clearly it was not. The plaintiffs recovered in the right of their assignor, and their recovery was limited to the amount which he might have recovered had the action been brought by him before he assigned. The transaction contains no element of a redemption or of payment of the taxes.

It is a matter of serious doubt whether this claim or demand is not one which should have been presented to the board of supervisors for allowance, under the statute. But, having disposed of the case on its merits, it is unnecessary to determine the question.

The order overruling the demurrer must be reversed, and the cause remanded for further proceedings according to law.

By the Gowrt. — So ordered.