This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Payments unlawfully coerced as taxes may be recovered.1 On the other hand, if a tax is paid voluntarily its illegality is no ground for an action to recover it.2 While there is practical unanimity of opinion upon these general propositions, there is a decided lack of harmony in the adjudications upon the question of what degree of compulsion amounts to a coercion so that the tax may be recovered if it proves to be illegal. This lack of harmony is in part due to a difference in the powers granted by the various states to their taxing officers in making summary collection of taxes. After eliminating these reasons for divergence, however, there remains a clear conflict of authority as to what amounts to coercion of payment of taxes. Payment of taxes has been held to be made under duress where record, money paid to redeem from such sale may be recovered,13 So if a levy on property14 or seizure of property is threatened,15 or by statute the tax is made a lien upon specific personalty, such as bank stock,16 payment is held to be made under compulsion. So where land cannot be conveyed until the tax is paid,17 or redemption from a tax sale is necessary,18 recovery has been allowed. Where the tax collecting officers have power to collect a tax by summary process without giving to the alleged delinquent a right to be heard in court upon the question of the illegality of the tax, he should not be obliged in order to protect his rights to wait until his property has been actually seized before making payment. When the circumstances are such that unless he pays, his property is liable to summary process in the ordinary routine of collection there is, in justice, no reason for further delay to protect his rights. Accordingly it has been held that under such circumstances payment is under compulsion,19 even if a considerable time must elapse before the collectors are bound to collect summarily,20 and even if the warrant has not yet issued.21 In some jurisdictions the courts are far less liberal in allowing recovery of payment of taxes. Payment of customs without objection or protest is held to be voluntary."2 Payment of illegal taxes under protest, before the collector has made any demand therefor,23 or before any process has issued for its collection,24 or before any legal steps have been taken to compel payment,25 or before the collector has any power to collect taxes by legal proceedings or summary process26 is voluntary. Publication of a delinquent tax-list, under the method of collecting taxes in force in some states does not constitute compulsion.27 Where such publication is one of the steps leading up to a sale, this rule could not apply except where the sale itself would be held not to amount to compulsion. Payment to avoid a money penalty for non-payment is held to be voluntary,28 though in some jurisdictions such payment is held to be voluntary.29 The reductio ad absurdum of the former view is found in those decisions which hold that payment made to prevent the sale of realty for a void tax is voluntary and cannot be recovered.30 This holding is based on the theory that the owner's method of testing the validity of the tax is to allow the sale to proceed and then to attack it whenever the attempt is made to deprive of his realty under it. A jurisprudence which can devise no fairer means than this of attacking the validity of a tax, and which has grown up in a country where not all taxes are valid by divine right, is indeed inadequate. One who pays for revenue stamps without notifying the collector of their intended use and without making protest cannot recover such payment.31 It is always possible for the government to do justice and to order voluntarily the payment of taxes illegally exacted.32 Statutes authorizing repayment of illegal taxes arc for the benefit of the parties making such payments, and hence even if permissive in their terms are construed as mandatory.33 Moved by the injustice of the rules in force in many jurisdictions, some legislatures have made more or less liberal provision for the recovery of payments of illegal taxes.34 The effect of such statutes often is to eliminate the question of duress entirely, and to allow recovery of payments of illegal taxes even if made voluntarily.35 Thus a statute may provide for re-20very of illegal taxes paid voluntarily, if a proper ground of objection to such tax is contained in the protest made at the time of such payment.36 The provisions of such statute must be complied to enable recovery thereunder. If the statute requires a specific protest, voluntary payment under a general protest cannot be recovered.37 A payment extorted by compulsion may, however, be recovered without complying with these statutes.38
19 Benson v. Christian, 129 Ind. 535; 29 N. E. 26.
20 Coleman v. Goben, 16 Ind. App. 346; 45 N. E. 194.
1 Eyerly v. Jasper County, 72 la. 149; 33 N. W. 609; Connelly v. Board, 64 Kan. 168; 67 Pac. 453; Newport v. Ringo, 87 Ky. 635; 10 S. W. 2; National Bank v. New Bedford, 155 Mass. 313; 29 N. E. 532; Wheeler v. Board, etc., 87 Minn. 243; 91 N. W. 890; Benton
79 v. Goodale, 66 N. H. 424; 30 Atl. 1121; Raleigh v. Salt Lake City, 17 Utah 130; 53 Pac. 974; Wyckoff v. King County, 18 Wash. 256; 51 Pac. 379.
2 Dear v. Varnum, 80 Cal. 86; 22 Pac. 76; Board, etc., v. Springs Co., 15 Colo. App. 274; 62 Pac. 336; Johnson v. Atkins. - Fla. -; 32 So. 879; Jeem v. Ellijay, 89 Ga. 154; 15 S. E. 33; Odendahl v. Rich, 112 la. 182; 83 N. W. 886; Montiarrest was threatened ;3 or criminal proceedings ;4 or where the omission to pay an excise tax was made a crime ;5 or where property is withheld ;6 or seizure7 or sale thereof is threatened ;8 such as will cast a cloud upon the owner's title,9 or terminate the owner's rights;10 as where the collector threatens to sell lands on a tax warrant, or the holder of a tax title threatens to claim a tax deed unless the land is redeemed.11 If a tax sale casts a cloud on the title, money paid to redeem property from such sale is not paid voluntarily and may be recovered.12 Thus, while as a general rule, a mortgagor or one claiming under him who buys at a tax sale, cannot assert any claim by reason thereof as against a mortgagee, yet if the purchaser at a tax sale is the equitable owner holding under an assignee of a second mortgagee and his interest does not appear of cello, etc., Co. v. Baltimore, 90 Md. 416; 45 Atl. 210; Foley v. Haverhill, 144 Mass. 352; 1l N. E. 554; Falvey v. Board, etc., 76 Minn. 257; 79 N. W. 302; State v. R. R., 165 Mo. 597; 65 S. W. 989; Hopkins v. Butte, 16 Mont. 103; 40 Pac. 171; Baker v. Fairbury, 33 Neb. 674; 50 N. W. 950; Bates v. York County,