Russ v. Everson
| Decision Date | 05 January 1933 |
| Docket Number | 6076 |
| Citation | 246 N.W. 649,63 N.D. 146 |
| Court | North Dakota Supreme Court |
Rehearing Denied February 20, 1933.
Appeal from the District Court of McLean County, Jansonius J.
Affirmed.
Hyland & Foster, for appellant.
Property of the state is exempt from taxation. N.D. State Constitution, para. 176.
Under such provision the ownership and not the use to which the property is put, nor even the purpose for which it is acquired, affords the test of immunity. San Francisco v McGovern, 28 Cal.App. 491, 152 P. 890; Colorado Springs v. Freemont County, 36 Colo. 231, 84 P. 113; Walden v. Whigham, 120 Ga. 646, 48 S.E. 159; Sumner County v. Wellington, 66 Kan. 590, 72 P. 216; State v. Burleigh County, 55 N.D. 1, 212 N.W. 217.
When a municipal corporation acquires property the title which the state takes by the tax collector's deed is merged in the larger title which the municipality holds under the trust for the public. Smith v. Santa Monica, 162 Cal. 221, 121 P. 920; Reid v. State 74 Ind. 252; Flanagan v Land Development Co. 145 La. 843, 83 So. 39; Foster v. Duluth, 120 Minn. 484, 140 N.W. 129, 48 L.R.A.(N.S.) 707; Laurel v. Weems, 100 Miss. 451, 56 So. 451; State v. Locke, 29 N.M. 148, 219 P. 790, 30 A.L.R. 407, Gasaway v. Seattle, 52 Wash. 444, 21 L.R.A.(N.S.) 68, 100 P. 991; State v. Snohomish County, 71 Wash. 320, 128 P. 667.
The payment of taxes to avoid a penalty, a portion of which taxes are illegal, but the legal portion cannot be paid, or at any rate will not be received without the payment of the illegal part, and which penalty will be incurred upon the nonpayment of the taxes, is a payment under compulsion and is recoverable from the county. Chicago, M. & P.S. Ry. Co. v. Bowman County, 31 N.D. 150, 153 N.W. 986; Farrington v. New England Invest. Co. 1 N.D. 118, 45 N.W. 191; Arkansas Bldg. & L. Asso. v. Madden, 175 U.S. 269, 44 L. ed. 159, 20 S.Ct. 119; Schaffner v. Young, 10 N.D. 245, 86 N.W. 733; Minneapolis St. P. & S. Ste. M.R. Co. v. Dickey County, 11 N.D. 107, 90 N.W. 260; Adrico Realty Corp. v. New York, 250 N.Y. 29, 164 N.E. 732, 64 A.L.R. 1.
A payment to relieve the pressure upon real property carrying heavy penalties is a payment under a mistake of law mingled with a mistake or confusion of the facts, and not purely under a mistake of law. Harmony v. Bingham, 12 N.Y. 99.
A party ought not to be exposed to any more risks in loss in relieving his lands of an apparent cloud upon title than in protecting his goods against an illegal sale. 3 Cooley, Taxn. (4th ed.) para. 1283; Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280, 56 L. ed. 436, 32 S.Ct. 216, Ann. Cas. 1913C, 1050.
A payment of a tax, made to avoid the onerous penalties of the act imposing the tax for its nonpayment, is not a voluntary payment. United Typewriter Co. v. Chamberlain, 92 Conn. 199, 112 A. 601; AEtna Ins. Co. v. New York, 153 N.Y. 331, 47 N.E. 593; Western U. Teleg. Co. v. Mayer, 28 Ohio St. 521; Dexter v. Boston, 176 Mass. 247, 57 N.E. 379.
When compulsion or duress exists, it is generally held that a protest is not necessary in order to render involuntary a payment of taxes. Meek v. McClure, 49 Cal. 623; Howard v. Augusta, 74 Me. 79; Pere Marquette R. Co. v. Luddington, 133 Mich. 397, 95 N.W. 417; Koewing v. West Orange, 89 N.J.L. 539, 99 A. 203; Horgan v. Taylor, 36 R.I. 232, 89 A. 1058; Wyckoff v. King Co. 18 Wash. 256, 51 P. 379; Segfred Constr. Co. v. New York, 209 N.Y. 429; State ex rel. McCarthy v. Nelson, 41 Minn. 25, 42 N.W. 548, 4 L.R.A. 300; Seaboard Air Line R. Co. v. Allen, 82 Fla. 191, 89 So. 555; St. Anthony & D. Elevator Co. v. Bottineau Co., 9 N.D. 346, 83 N.W. 212; Erskine v. Van Arsdale, 15 Wall. 77, 21 L. ed. 63; Clough v. Boston & M.R. Co. 77 N.H. 222, 90 A. 863, Ann. Cas. 1915B, 1195.
In the absence of a special statute to the contrary, the fact that an illegal tax is or is not paid under protest is of no importance. 26 R.C.L. 459; Cox v. Welcher, 68 Mich. 263, 36 N.W. 69; Dicese of Fargo v. Cass County, 28 N.D. 209, 148 N.W. 541.
G. A. Lindell, for respondents.
In the absence of circumstances showing a payment of taxes to have been made under legal duress, such payment cannot be presumed to be involuntary. Hathaway v. Addison, 48 Me. 440.
A payment of taxes is not made involuntary by the mere fact that it was made to facilitate a sale of the payer's land to a third party. Weston v. Luce County, 102 Mich. 528, 61 N.W. 15; Gage v. Saginaw, 128 Mich. 682, 84 N.W. 1100; Moffit v. Salem, 81 Ore. 686, 160 P. 1152; Cameron County Water Improv. Co. v. Handley (Tex.) 275 S.W. 298; Forrest v. New York, 13 Abb. Pr. 350; Tripler v. New York, 125 N.Y. 617, 26 N.E. 721.
Whether or not such an urgent necessity exists as will amount to legal duress in the payment of a tax is a question to be determined in the light of all the circumstances of each particular case. State ex rel. McCarthy v. Nelson, 41 Minn. 25, 42 N.W. 548, 2 L.R.A. 300; Vaughn v. Port Chester, 135 N.Y. 460, 32 N.E. 137; Chesebrough v. United States, 192 U.S. 253, 48 L. ed. 432, 24 S.Ct. 262; United States v. New York & C. Mail S.S. Co. 200 U.S. 488, 50 L. ed. 569, 26 S.Ct. 327; Lingle v. Elmwood Twp. 142 Mich. 194, 105 N.W. 604; Blackwell v. Gastonia, 181 N.C. 378, 107 S.E. 218.
The payment of taxes is voluntary when it is made with knowledge of the facts and without protest, and without any threatened seizure of the payer's property or arrest of his person or other act of compulsion. Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 105 N.W. 563; Shirley v. Waukesha, 124 Wis. 239, 102 N.W. 576; Rand v. United States, 249 U.S. 503, 63 L. ed. 731, 39 S.Ct. 359; Mays v. Cincinnati, 1 Ohio St. 268; Waubaunsee County v. Walker, 8 Kan. 431; Gaar, Scott & Co. v. Shannon, 52 Tex. Civ. App. 624, 115 S.W. 361; Helena v. Dwyer, 65 Ark. 155, 45 S.W. 349; Brumagin v. Tillinghast, 18 Cal. 265, Hopkins v. Butte City, 16 Mont. 103, 40 P. 171.
Birdzell, J. Burr, Burke and Christianson, JJ., and Hutchinson, Dist. J., concur. Mr. Chief Justice Nuessle did not participate, Hon. Wm. H. Hutchinson, Judge of the Third Judicial District, sitting in his stead.
OPINIONThe plaintiff and appellant presented to the county of McLean two separate itemized statements for refund of taxes paid upon lands which she had acquired from the county. The county commissioners disallowed the claims for such refunds and the plaintiff appealed to the district court where the appeals were consolidated and tried together. A judgment of dismissal was entered and the instant appeal is from such judgment. The first claim is for the aggregate amount of $ 719.31 and the second for the amount of $ 642.91. In the first claim there are eight items and in the second, twenty-one. While each item stands upon its own foundation, and while the facts are not identical for all the items included in a single claim, it is not necessary, as we view the case, to present the facts pertaining to the various items separately. The pertinent facts may be stated as follows:
In 1926 and 1927, with one exception to be noted below, the county of McLean procured tax deeds to a number of tracts of land which were subsequently sold to the plaintiff. The plaintiff's husband, Carl Russ, acted for her in the purchase and in all other transactions with McLean county concerning the lands. The tax deeds to the county were based upon certificates of tax sales for the years 1920, 1921, 1922, 1923 and 1925. Most of them, however, were for the years 1921 and 1922. Thereafter the plaintiff purchased the lands from the county and paid taxes levied subsequent to those attaching to the lien of the certificates, on account of which the deeds issued to the county. The taxes so paid by the plaintiff and included in the first claim for refund of $ 719.31 were for the years 1926 and 1927 and had been spread before the plaintiff became the purchaser of the lands. The taxes represented in the second claim were, except as to one item, the taxes for 1926 and were similarly spread before the plaintiff became the purchaser. As to the excepted item, the county procured a tax deed on May 1, 1929, on a tax certificate issued in December, 1925. The plaintiff became the purchaser on August 6, 1929. Her deed was recorded August 19, 1929, and on August 26, 1929, she paid the tax of $ 52.64 spread for the year 1928.
The attempt in this proceeding is to obtain a refund of all the taxes so paid on the theory that such taxes were illegal, that they should have been cancelled by the county immediately upon acquiring the tax deed (see Chapter 266, Session Laws of 1927), and that they represented payments made by the plaintiff in such circumstances that the payments were not voluntary. The circumstances relied upon as showing that the payments were not voluntary differ in some respects for various items of taxes paid. As to some, it is the contention that they were required to be paid in order to record the deeds to the plaintiff. As to other items, it is contended that the plaintiff sold the lands to third parties and was required to pay the taxes in order to make clear title and so as not to lose the benefit of the sale; and as to others, that a loan upon the land was secured from the state school fund and in order to procure the completion of the loan the mortgagee required payment of the taxes, deducted the necessary amount from the loan and, in effect, paid the taxes with the appellant's money.
In the absence of any statutory regulation defining the character of protest requisite to enable a taxpayer to recover back a tax which he was under no legal liability to pay, there...
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