Tooker v. Roe
44 N.J.L. 591
N.J.
1882
Check Treatment

The opinion of the court was delivered by

Scedder, J.

The reasons assigned for reversal will be considered in their order. The objection that the action should have been an action on the case, and not in debt, is not tenable. The claim was to recover money had and received for the use of the plaintiff, and in that form, it was a demand founded on simple contract, for the payment of money only, and the suit therefor must be in the name, and style of an action for debt, in the court for the trial of small causes. Rev., p. 543, § 22. The next exception is that the collector, having paid the amount received by him for' a tax legally assessed against the lands of Daniel Rutan, to the township, before suit brought, or • notice to retain it, is not liable, but the suit, if maintainable, must be brought against the township. This is not a valid objection, for if the collector knew, as it appears in the case he did, that the warrant, tax sale and declaration of sale were illegal, and that the plaintiff took no title thereunder, before he paid over the money to the township, the payment was made at his risk, and he may be sued for repayment, if the action is maintainable against either him or the township. The remaining reasons for reversal are not merely formal, but go to the merits of the action, and will be considered together. It is alleged that the declaration of sale is without authority of law, and *593a nullity; that there is, consequently, an entire failure of consideration, and the plaintiff is entitled to recover back the consideration price paid by him. It will be observed that there is no charge of fraud or deceit in the sale, but that it was illegal. The action is not, in form, an action on the case for fraud or deceit, but in debt, for the price paid. Is, then, the defence that is urged available in this action? That the sale made by the collector was void, cannot be disputed. A warrant for taxes was issued by the township committee, directed to any constable of the county of Sussex, according to section 3 of “ An act to make taxes a lien on real estate, and to authorize sales for the payment of the same,’' approved March 17th, 1854, {Rev., p. 1163,) and it was delivered by them to the collector of Frankford township, who executed the same, under section 29 of a supplement, to “ An act concerning taxes,” approved April 14th, 1866. Rev., p. 1159. 'The sale under this warrant was clearly without authority. See Dinsmore v. Westcott, 10 C. E. Green 470.

The form of the declaration of sale is not given in the state of the case, but it was undoubtedly in the usual form, reciting the proceedings and the sale of the land to the purchaser for the term of four years. Being without covenants for title, the purchaser could have no remedy, either at law or in equity, for a failure of title, if it purported to convey a freehold estate; but as it only assured á conveyance for a term of years, or an estate less than freehold, it will be held, under the authority of Phillips v. City of Hudson, 2 Vroom 143, (1864), that the purchase money may be recovered back in an action of assumpsit, on a covenant of title implied from the words of leasing. But in my judgment, the authority of this case is shaken by the dissenting opinion, and by the subsequent case of Hampton v. Nicholson, 8 C. E. Green 423, (1873), in which the Chancellor says: “Purchasers frequently accept deeds by which no title is conveyed, under a misapprehension of the law. When there is no mistake or misrepresentation as to the facts, and no fraud and no warranty of title, they have no redress at law or in equity.” In Lynde v. Melrose, 10 *594Allen 49, (1865), where, upon facts like the present case, the court say: “ Where there is no fraud or imposition, the sale of land without warranty creates no obligation to return the purchase money, in any event.” Add to these the weight of opinions expressed in Rawle on Covenants, ch. 13, and in Cooley on Taxation 567, where the above rule of law is insisted on as a rule of public policy also; and it may well be doubted whether the plaintiff has shown any right to recover back the purchase money, if there were no other reason or authority than those already considered.

But there is a reason assigned for reversal which is decisive. The note given to the collector for the purchase money, was payable one day after date; it remained unpaid from September 2d, 1876, until April 2d, 1878, when it was paid by Tooker to the collector, Roe, who still held it; and this payment was made with full knowledge of all the facts, after he had been told the collector’s deed was not good, and when whatever defence he might have to the payment was as available to him as it ever could be. Without notice or reservation of a right to reclaim the money, he permitted it to be paid over by the collector to the township, before this action was brought to recover back the consideration money. The rule that is applicable, and the reasons for it, are given in Mayor, &c., of Jersey City ads. Riker, 9 Vroom 225. When money is demanded as a legal right, and it is paid without compulsion, and with a full comprehension of the facts, the money so paid cannot be reclaimed by a suit at law. The reason of this rule is, that the party paying had an opportunity to dispute the claim, and having waived it at his own volition, it is impolitic to permit him to bring suit for it. Here the note was past due, in the hands of the original holder; there was no danger to be apprehended from a transfer to a bona fide holder for value, nor any possibility of cutting off a defence, if the plaintiff had a legal one. If, in this position, he paid the note to the public officer, who, in the discharge of his duty, in payment of a tax legally assessed and due, paid the money received *595over to the township, the plaintiff is not in' a position to sue him and recover it back.

The judgment below should be reversed.