42 Wis. 315 | Wis. | 1877
It is not alleged in the complaint that any demand was made of the defendant city to refund the money paid by the plaintiff for the tax certificates. It is claimed by counsel for the defendant, that the complaint is fatally defective foivwant of such an averment. On the authority of Lawton v. Howe, 14 Wis., 241, we think the objection is well taken. That was an action to recover money paid for certain school land certificates which turned out to be invalid; and it was held, on demurrer, that the complaint was defective in substance because it contained no allegation of a demand of the money before the commencement of the action. NrxoN, O. J., delivering the opinion of the court, says: “ The money was received by the respondent as a payment, not as a loan; and it would be most unjust and oppressive to subject him to an action before demand, or notice that he is required to refund.”
The doctrine of Lawton v. Howe applies with peculiar force to a case like this. Because of some jurisdictional defect in the proceedings preliminary to a tax sale, all of the certificates issued pursuant to such sale may be void, and the city or county liable to refund the money paid for them. If actions could be maintained to recover such money without a previous demand, the city or county might be subjected to the costs of scores or even hundreds of actions, when, had demand been made, the money would have been refunded without a contest. This would be intolerable.
It is to be observed that the above doctrine does not apply to an action for money loaned, but is confined to a case like this, where the money has been paid as the price of something sold and delivered to the vendee or payeej and where, because of some fact or circumstance not contemplated by either party
Other grounds of demurrer to the complaint were assigned, and other questions were ably argued at the bar; but it is deemed unnecessary to consider them.
By the Court. — Order affirmed.