Sowles v. Soule

59 Vt. 131 | Vt. | 1886

The opinion of the court was delivered by

Veazey, J.

If the payment by the plaintiff was voluntary in legal sense he cannot recover. It was hold by this court in Barnes v. Hall, 55 Vt. 420, that bank stock could not be legally taken and sold on a tax warrant, on the ground that it Avas personal property of such character, and was so situated, that actual possession could not be taken, and that there was no statutory provision for distraining the same by leaving a copy in the town clerk’s office or elsewhere. If therefore the defendant had had a tax against the plaintiff, which he had not, he could not have taken and sold his bank stock on a tax warrant. The defendant had no possession of the íavo hundred shares. A sale by the defendant would therefore have been utterly void in legal effect. The plaintiff’s possession had not been disturbed, and the threatened sale Avould not have disturbed the plaintiff’s title. Knowing all the facts, and charged with knoAvledge of the law, the plaintiff made the payment. ‘ ‘ If the payment is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain or retain possession of the property except by submitting to the payment,” then it is compulsory and not voluntary. Maxwell v. Griswold, 10 How. 242; Harmony v. Bingham, 2 Kern. (12 N. Y.) 99; Astley v. Reynolds, 2 Strange, 915. The defendant had no advantage over the plaintiff. Where the parties stand on an equal footing then there is the free exercise of will, and compromise or payment is voluntary and binding. Beckwith v. Frisbie, 32 Vt. 559. It is not alone the illegality of the demand paid that constitutes ground for relief. There must be, in addition, some compulsion or coercion attending its assertion, by the actual or threatened exercise of poAver possessed, or supposed to bo possessed, by the other party, from which the party making the payment has no other means of immediate relief than by advancing the money. In Mays v. Cincinnati, 1 Ohio St. 268, the court say this : “A payment of money upon an illegal or unjust demand, where the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it.” To the same purport are Forbes. v. Appleton, 5 Cush. 115; Brumagim v. Tillinghast, 18 Cal. 265; Bucknal v. Story, 46 Cal. 589; and many other cases. Shaw, Ch. J., in Wright v. Boston, 9 Cush. 233 (241), states the proposition thus: “The only ground upon which a party is allowed to pay a tax or assessment under protest, and after-wards maintain an action to recover it back, is when the tax was wholly void — a more nullity;' when a party can have no action or take no appeal, and when the collector appears with his warrant, he must pay or have his person arrested or property taken, then he pays under a species of duress.” See Noyes v. Haverhill, 11 Cush. 338. The plaintiff did not pay, or have to pay, to save either person or property from being taken or detained. Although the tax was not assessed against the plaintiff, but against his trustee, and therefore was void as against the plaintiff, yet it is easy to see why he should pay it, and rvhy he probably did pay it.

"VYe fail to see how this payment can be treated other than purely voluntary.

Judgment reversed, and judgment for the defendant for costs.