City of Denver v. Evans

Mr. Justice Goddard

delivered the opinion of the court:

Counsel for appellant urge as a ground for reversal that the money sought to be recovered was paid voluntarily, and, in support of such contention, rely upon Redmond v. Mayor, 125 N. Y. 632 , and Tripler v. Mayor of N. Y., 125 N. Y. 617 , which were cases brought to- have certain assessments de *493 elared void, and to recover back the money paid in satisfaction thereof. An examination of these cases will disclose a state of facts very different from those in the case at bar. In the Ttedmond case, the conclusion reached was that the great lapse of time during which the assessment remained without demand or steps taken to collect it, the want of diligence in the parties to pay it, or to move its vacation; the fact that, when payment was finally made, it was made without any coercion and for purposes of convenience, and immediately thereupon a claim was filed, and as soon as possible placed in suit for the restitution of the money on the1 ground of the illegality of the proceedings leading up to the assessment — that all these were circumstances which should preclude the court from - granting the relief demanded. In the Tripler case, the decision was predicated upon the fact that, although notice of the confirmation of the assessment and demand of payment within sixty days was published, the plaintiff did not comply with the demand, and the city took no steps towards enforcing the payment, and six years thereafter the amount of the assessment, with interest, was paid by one to whom plaintiff had sold the land, out of the consideration money, that there was written evidence on file in the public offices showing the invalidity of the assessment, and the fact that the court had, in two reported cases, decided similar assessments which were attacked upon precisely the same ground to be, invalid; these facts were held sufficient to authorize the inference that plaintiff, at the time of payment, had knowledge that the assessment was void, and that there-was no coercion in fact or law.

In the 'case at bar, none of those reasons appear; but, on the contrary, at the time the payments set out in the first and second causes of action were *494 made, the assessor was about to sell the property for the non-payment of the assessments,'which appeared to be a valid lien against the same. The payments set out in the third and fourth causes of action were made under protest, and with notice to the treasurer that it was solely to redeem the property from the apparent lien and with the intention on the part of the administratrix to recover the amount in the event that the assessment should subsequently be declared illegal. In the fifth cause of action, it is alleged that the property had been sold for the non-payment of the assessment, and a certificate of purchase was outstanding. In such circumstances, after the assessment has been set aside as illegal, the money paid in good conscience belongs to the party paying it, and it is held by the city for his use. —Mayor v. Riker, 38 N. J. Law 225; Jersey City v. O’Callaghan, 41 N. J. Law 349.

In these cases, the question at issue was the same as in the case at bar, to wit: whether a party who had paid an assessment for the benefit of his property by the construction of a sewer could, after such assessment had been adjudged illegal and had, for that reason, been set aside, recover the money so paid. The court, while recognizing the general rule that where a party voluntarily pays a tax assessed upon his property he cannot maintain an action to recover the same, held that this rule is not applicable where an assessment like the one in question has been set aside by judicial decision. In the former case, Beasley, chief justice, declares:

“Had this suit been brought upon the payment of the tax, and before any change in the situation had occurred, the case would have been the ordinary one presented in the reports and ruled by the' decisions. But that is not so ; there is a new element here, and that is, the tax which was paid has been set aside. *495 The consequence is, the payment has nothing, either in theory or in fact, to rest upon.”

We think the judgment of the court below is supported by the rule announced in these latter cases, and is in accordance with the principles of common honesty. It is therefore affirmed.

Decision en banc. Affirmed.