Montgomery v. Cowlitz County

• Decision Date: 10 March 1896
• Citation: 44 P. 259,14 Wash. 230
• Parties: MONTGOMERY v. COWLITZ COUNTY.
• Court: Washington Supreme Court

44 P. 259

14 Wash. 230

MONTGOMERY v. COWLITZ COUNTY.

Supreme Court of Washington

March 10, 1896

Appeal from superior court, Cowlitz county; A. L. Miller, Judge.

Action by J. B. Montgomery against Cowlitz county. There was a judgment for defendant, and plaintiff appeals. Reversed.

R. E Moody and Stott, Boise & Stout, for appellant.

E. W Ross, for respondent.

GORDON J.

Appellant brought this suit to recover from Cowlitz county taxes paid by him under protest on the 8th day of September, 1885, to the sheriff of said county, amounting to $823.61, and also to recover the further sum of $357.10 for taxes paid by him (also under protest) on the same day to the treasurer of the respondent county. All of the taxes so paid were levied and assessed upon lands lying in said county purchased by appellant from the Northern Pacific Railroad Company; said lands being a part of the grant made by the United States to the railroad company by the provisions of the act of congress of July 2, 1864. On July 15, 1870, this act was amended by providing "that before any land, granted to the Northern Pacific Railroad Company by the United States, shall be conveyed to any party entitled thereto, *** there shall first be paid into the treasury of the United States the cost of surveying, selecting and conveying the same by said company or party in interest"; and it appears that, up to the time of payment by appellant of the respective sums which he seeks in this action to recover, "the cost of surveying" the lands had not been so deposited. The case was tried in the lower court without a jury, upon the stipulation of parties as to the facts; and, having made its findings of fact, the court rendered judgment for the respondent county, from which judgment the case has been appealed. No exceptions were taken below, nor is any objection made here, to any of the findings of the lower court, but it is argued by counsel for appellant that the findings do not justify the conclusions nor judgment.

It is conceded that, under the acts of congress above referred to, the lands were not taxable at any time prior to the time when appellant made the payments in question. Railway Co. v. Prescott, 16 Wall. 603; Northern P. R. Co. v. Traill Co., 115 U.S. 600, 6 S.Ct. 201.

As the circumstances surrounding the payment to the sheriff differ from those attending the payment to the treasurer, we will first consider the right of appellant to recover the amount paid to the sheriff. This amount was paid for taxes levied and assessed upon the lands prior to the year 1885. Bearing upon this question, the lower court found "that all of said taxes were delinquent, and that the said sheriff had notified the plaintiff that he would sell the said lands for said taxes assessed thereon against plaintiff, unless the same were paid by plaintiff, and that the said sheriff had given public notice of the sale of said lands for said taxes, by publishing the delinquent list, with the total amount of said taxes, as provided by law, and threatened proceeding to sell said lands for the said taxes assessed thereon, when the same were paid by plaintiff." There is much conflict in the authorities as to whether, under the circumstances of a given case, a payment is to be regarded as voluntary or compulsory, especially where the payment is made to prevent a threatened sale or interference with real estate. Without attempting any analysis of the many cases bearing upon that question, we are satisfied to adopt the rule announced in Detroit v. Martin, 34 Mich. 170: "How would such sale have affected plaintiff's right or title thereto? Would such sale have constituted a cloud upon his title? Assuming that it would, in order to prevent this, he could have paid the amount under protest, and afterwards have maintained an action to recover it back. If a sale, under the facts stated, would not have constituted a cloud upon his title, then it may be at least doubtful whether the plaintiff has any remedy." And we may add that there is much authority to be found in support of this view. Bruecher v. Village of Port Chester, 31 Hun, 551 (affirmed in 101 N.Y. 240, 4 N.E. 272); Mills' Guardian v. City of Hopkinsville (Ky.) 11 S.W. 776; Whitney v. City of Port Huron (Mich.) 50 N.W. 316; Bucknall v. Story, 46 Cal. 589; State v. Nelson (Minn.) 42 N.W. 548; Seeley v. Town of Westport, 47 Conn. 294; Guy v. Washburn, 23 Cal. 111; Stephan v. Daniels, 27 Ohio St. 527; Valentine v. City of St. Paul, 34 Minn. 446, 26 N.W. 457.

This brings us to the question of whether the sale which was here threatened would, if consummated, have created any cloud upon appellant's title. Upon the part of the respondent it is contended that the lands were not subject to taxation, and that the assessment and all subsequent proceedings were absolutely void, and that by a sale, as was contemplated, no cloud would have been created upon appellant's title. "A cloud upon one's title is something which constitutes an apparent incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole, or some interest in it. An illegal tax may or may not constitute...