Shane v. City of St. Paul , 26 Minn. 543 ( 1880 )

Cornell, J.

Upon the allegations of the complaint, the tax judgment under which plaintiff’s land was sold, and the certificate of sale was issued, was void for want of jurisdiction, and for matters appearing upon its face showing its nullity, besides being founded upon an illegal and void reassessment, made without authority; 'of all which facts plaintiff had full knowledge when he paid to the city treasurer, for the redemption of the property from such sale, the money which he now seeks to recover from the defendant, on the ground that such payment was made under protest, and was not voluntary. The only compulsion complained of was the. threatened execution, on the p>art of the city, to the holder of the tax certificate, in case no redemption was had within the time fixed by law, of a tax deed to the premises, which would operate as an apparent cloud upon plaintiff’s title, by reason of the prima-facie character given to such instruments as evidence of title.

It is evident, from these facts, that the payment was made-under the influence of no duress or coercion, actual or threatened, affecting either the person or property of the plaintiff. Not even any demand for the redemption appears to have been made upon him on the part of the defendant. He was remaining in the quiet and undisturbed possession of his property, and there is no pretence that the city authorities contemplated any interference therewith, by process or otherwise. The execution and delivery of .a tax deed, in accordance with the alleged threat, could work no disturbance of that possession, for, being founded upon a judgment void upon its face, its invalidity could always be shown to defeat any claims that might, at any time, be asserted under it. There was, therefore, no necessity for plaintiff to make any redemption in order to protect his possession of the property. Neither was he required to do so to avoid any injurious consequences which might arise by reason of the apparent cloud which might be cast upon his title, for, upon the facts stated, he had a perfect and adequate remedy by action for the removal of such apparent cloud, whenever created.

The payment, therefore, was a voluntary one, unless the protest which accompanied it gave it a different character. This it could not do. If, in fact, the party was under no duress, restraint or compulsion when he made it, it cannot be said that he acted under the influence of any coercion in making it, because he accompanied the act of payment with a written or verbal protest. A protest is of no avail except in the case of a payment made under duress or coercion, and then only as evidence tending to show that the alleged payment was the result of the duress. McMillan v. Richards, 9 Cal. 365, 417. As the payment in this ease, therefore, was purely a voluntary one, made with full knowledge of all the facts, this action for its recovery cannot be sustained. Burroughs on Taxation, 267, 442; Cooley on Taxation, 566, and cases cited; Smith v. Schroeder, 15 Minn. 35; Powell v. Board of Sup’rs St. Croix Co., 46 Wis. 210.

Judgment affirmed.