State v. Moore

• Decision Date: 16 August 1893
• Citation: 34 P. 461,7 Wash. 173
• Parties: STATE EX REL. BALDWIN v. MOORE, COUNTY AUDITOR. [1]
• Court: Washington Supreme Court

34 P. 461

7 Wash. 173

STATE EX REL. BALDWIN v. MOORE, COUNTY AUDITOR. ^[1]

Supreme Court of Washington

August 16, 1893

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Petition for mandamus, on the relation of Clinton Baldwin, against C M. Moore, county auditor of Thurston county, to record a deed of assignment. A demurrer to the petition was overruled, and judgment rendered for relator. Defendant appeals. Affirmed.

Milo A. Root, for appellant.

W. I Agnew, for respondent.

SCOTT J.

The question presented in this case involves the validity of that part of section 11 of the act approved March 11, 1893 relating to the duties of county auditors, (Sess. Laws 1893 p. 284,) providing that the auditor shall refuse to receive or record any deed of real property unless it is accompanied by a certificate of the county treasurer "that all taxes theretofore levied, and which have become a charge on said property according to the books and records of his office have been fully paid and discharged," and, if valid, whether or not a deed of assignment conveying real estate to an assignee in an insolvency proceeding, in trust to be disposed of therein for the benefit of creditors, is within the terms of the act. The The first point stated will be first considered. If the act is held invalid, the second question becomes immaterial.

In State v. Register of Deeds of Ramsey Co., 26 Minn. 521, 6 N.W. 337, a law substantially like this was held constitutional, and no case has been called to our attention directly holding otherwise; but it seems to be against the principles established by a number of cases in deciding somewhat similar questions. No provision is made in the act whereby an interested party can test the validity of the tax, or the truthfulness of the record. No matter how illegal or unwarranted the tax may have been, even if void, it must be paid before the grantee can have his instrument recorded. If it has been paid, and the records in the treasurer's office fail to show it, the same result must follow, as the matter is made to depend entirely upon what is shown by the treasurer's records. It is argued that a person is not compelled to record his muniments of title, and that, as the right to have such instruments recorded is given by the law, the legislature may prescribe such terms and conditions therefor as it deems fit, if its action is only legislative in character, and that the act in question does not interfere with guarantied property rights. But in our opinion it cannot stand the test. Among the rights guarantied the citizen by the constitution is the right to acquire, hold, and enjoy property, and that no person shall be deprived of his property without due process of law, and that private property shall not be taken for public use without just compensation having been first made or paid into court for the owner. The right to alienate property is essential to its use and enjoyment, as well as the right to acquire it, and both are constitutional rights. It cannot be said that this law does not interfere with the right to dispose of and acquire property, for unless the deed of transfer is recorded a subsequent purchaser for value without notice will take the title, and this is made so by other legislative enactments, and thus the original purchaser is placed without the protection of the law. Surely, such a state of affairs will most seriously interfere with and impair the right to sell and acquire; and when an unjust, illegal burden or restraint is imposed thereon, it is an unwarranted interference.

It is argued that if the tax is illegal the party may pay it, and then bring suit to recover it back; and in State v Nelson, 41 Minn. 25, 42 N.W. 548, it was held that a payment under protest, of illegal taxes, to secure the recording of a deed, was not a voluntary payment. But whether this is within the weight of the authorities there may be some question. Only those payments which have been made under a claim involving the use of force have generally been regarded as involuntary, and not those which are merely unwillingly made, and as a choice of evils or of risks. Cooley, Tax'n, (2d Ed.) pp. 809-815, and cases there cited. But, however this may be, it is no answer or justification if an action will lie to recover it back after payment, for if it is an illegal or void demand the state has no right to collect it in the first instance. The law in question is not a regulation of the matter of recording, but it imposes an independent, distinct burden upon the privilege and protection afforded by the recording...