Union Ins. Co. v. City of Allegheny

• Decision Date: 20 November 1882
• Citation: 101 Pa. 250
• Parties: Union Insurance Co. <I>versus</I> The City of Allegheny.
• Court: Pennsylvania Supreme Court

101 Pa. 250

Union Insurance Co. versus The City of Allegheny.

Supreme Court of Pennsylvania.

October 9, 1882.

November 20, 1882.

October 9th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas No. 1 of Allegheny county: Of October Term 1882, No. 84.

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Thomas C. Lazear for the plaintiff in error.—The lien of the taxes was discharged by the sheriff's sale: Allegheny City's Appeal, 41 Pa. St. 60; Burgwin v. Burchfield, 11 Pitts. L. J. (N. S.) 13: Payment with protest under circumstances amounting to duress puts it in the power of the plaintiff to recover back the money paid: Grim v. Weisenberg School Dist., 57 Pa. St. 443; Allentown v. Saeger, 8 Harris 421; Hospital v. Philadelphia, 24 Pa. St. 231; Stinger v. Commonwealth, 26 Pa. St. 426; McCrickart v. Pittsburgh, 88 Pa. St. 133; Erskine v. Van Arsdale, 15 Wall. 75; Bank v. Watkins, 21 Mich. 483; Allen v. Burlington, 45 Vt. 214. The distinction taken in the court below between a payment made to prevent a sale of land and one made to prevent a seizure of goods is without authority. The duress is the same in both cases: Lamborn v. Commissioners, 97 U. S. 181; Guy v. Washburn, 23 Cal. 112; Stephen v. Daniels, 27 Ohio St. 544; Mariposa Co. v. Bowman, Deady 228.

W. B. Rodgers, city solicitor for the defendant in error.— The payment in this case was voluntarily made under a mistake of law and therefore cannot be recovered back: Boas v. Updegrove, 5 Pa. St. 516; Espy v. Allison, 9 Watts 462; Carson v. McFarland, 2 Rawle 118. A protest without compulsion is unavailing: Thomas v. Phila. & Reading R. R., 1 W. N. C. 621; 2 Dillon Municipal Corp. § 947.

Mr. Justice MERCUR delivered the opinion of the court, November 20th 1882.

This suit was to recover money paid by the plaintiff under the following circumstances. One Logan owned certain lands, in the City of Allegheny, and in August 1874 executed a mortgage thereon to the plaintiff in the sum of $4,000. The latter obtained judgment, issued execution, sold the property at sheriff's sale, bid it in for $50 and obtained a deed therefor in July 1877.

Municipal taxes had been assessed on the property for the years 1875 and 1876 which could not be collected for want of goods and chattels on which to levy. In March 1878 claims for these taxes were filed in the Prothonotary's office under the Act of 14th July 1863, which provides for the entry of judgment thereon, the issuing of execution forthwith, and a sale of the real estate. Execution had issued on one of the judgments thus obtained, the real estate then owned by the plaintiff was levied on, and advertised to be sold. The plaintiff paid the judgment under protest. A year thereafter the city solicitor demanded of the plaintiff payment of the other judgment for the taxes of 1876 with threat unless paid he would proceed to enforce payment by sale of its property. The plaintiff thereupon paid this judgment under protest. This action is to recover the sums thus paid for the taxes, interest and costs covered by both judgments.

It is conceded now that the lien of these taxes was discharged by the sheriff's sale of the property made in 1877. The filing of the claims the year thereafter created no lien on the property. Does the fact that they were paid under protest when they were no lien, to prevent the form of sale being had, give a right to recover the sums so paid?

It is well settled as a general rule of law, that money voluntarily paid on a claim of right, where there has been no mistake of fact, cannot be recovered back on the ground that the party supposed he was bound in law to pay it when in truth he was not: Clarke v. Dutcher, 9 Cowen 674. He shall not be permitted to allege his ignorance of the law, and it shall be considered a voluntary payment: Id. In Brisbane v. Dacres, 5 Taunt. 144, Mr. Justice GIBBS said, where a man demands money of another as a matter of right, and he pays it with a full knowledge of the facts on which the demand is founded, he can never recover back the sum he has so voluntarily paid. The same principle is ruled in Morvall v. Wright, 1 Wend. 355; and Lyon v. Richmond, 2 Johns. Ch. Rep. 51. Mr. Chief Justice WAITE in pronouncing the judgment of the court in Railroad Co. v. Commissioners, 8 Otto 541, which was a suit to recover back, taxes which the company had paid, declared it to be a rule of the common law that "where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without immediate and urgent necessity therefor, or unless to release his person or property from detention or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary." He evidently referred to personal property of which the owner might summarily be dispossessed.

In Colwell v. Peden, 3 Watts 327 it was held that assumpsit would not lie against a landlord for money paid by a tenant after a warrant of distress had issued in good faith to recover rent alleged to be in arrear, although in fact no rent was actually due. It was there argued that the payment was not voluntary, that the tenant must either pay or have his furniture sold; yet the court held the tenant could not recover by reason of there being no rent due. He might have maintained either trespass or replevin. Espy v. Allison, 9 Id. 462, was the case of a purchaser of land at sheriff's sale, who, under the impression that he was liable to pay a bond, secured by mortgage on the property purchased, paid the same, and afterwards discovered that he was not bound to pay it by reason of the mortgage having previously been satisfied of record, it was held he could not recover the money back, as the holder of the bond had conscientiously received the same. In Boas v. Updegrove, 5 Barr 516, an execution had issued on a judgment against the former owner of the land to sell it. The terre-tenant supposing the judgment to still be a lien on the land after it was advertised for sale paid the money to the sheriff who returned the writ "money made by" the terre-tenant. Before the return day of the writ the latter ruled the money into court and proved that the judgment was no lien and that he had paid it under a mistake. It was held to be a voluntary payment which the...