
    Pelton v. Bemis.
    
      Revised Statutes, Sec. 5848 — Action to recover bach illegal assessment— Pleading — Averment of legal conclusion — Limitation of action — Assessment in installments.
    
    1. In an action brought under section 5848, of the Revised Statutes, to recover back an assessment that has been collected, on the ground that it ■was illegally assessed, it is not sufficient to aver that the assessment is illegal and void, such averment being simply a legal conclusion; the facts must be stated so that the court may judge whether or not the same is illegal and void.
    2. When, for the purpose of collection, an assessment is divided into two or more installments, payable annually or otherwise, the limitation of time in which the action can be brought, as provided in said section, begins to run against such installment from the time of its collection, and not from the collection of the last installment.
    Error to the District Court of Cuyahoga county.
    
      The plaintiff below, Fred. C. Bemis, commenced his action in the court of common pleas, under sections 5848 and 5850 of the Revised Statutes, to recover back certain assessments upon his property that he had paid to the defendant as treasurer of the county. The petition, containing a cause of action for each payment (four in all),'was filed June 24, 1879. The averments of the first cause of action are as follows:
    “The plaintiff alleges:
    “ 1. That during the years 1876, 1877, and 1878, the defendant, Frederick W. Pelton, was treasurer of Cuyahoga county, and the plaintiff was and still is the owner of sub-lots 29, 30, and 31, of Nicola and Judson’s allotment of a part of original lot 328, all of which lots have a frontage and are situated on Kinsman street, in the city of Cleveland, county and state aforesaid.
    “ 2. That on the fifth day of September, a. d. 1876, the city of Cleveland, a municipal corporation under the laws of the State of Ohio, by the passage of a so-called ordinance by the city council of said city, caused a special as-' sessment for the grading, draining, paving, and improving of Kinsman street, in said city of Cleveland, to be made and levied upon all of the aforesaid lots, in the total sum of nine hundred and eighty-two dollars and five cents ($982.05), payable in five annual installments to the treasurer of Cuyahoga county, the first installment payable 'on or before the 20th day of December, a. d, 1876, and one installment annually thereafter until all should be paid; and that said city of Cleveland caused and procured said special assessment to be entered upon the general duplicate for the collection of taxes in and for said county of Cuyahoga.
    “And this plaintiff further alleges and avers that said special assessment, so made, levied, and entered upon said^ general duplicate as aforesaid, was and is wholly illegal and void.
    “3. This plaintiff further says that on the 8th day of November, a. d. 1876, the defendant, Frederick W. Pelton, then treasurer of Cuyahoga county, at his office in said city of Cleveland, refused to receive from said plaintiff the state, county, and city taxes, exclusive of said special assessment, charged on the duplicate against the aforesaid lots of this plaintiff, and thereby illegally and wrongfully forced and compelled this plaintiff to pay to said defendant, and this plaintiff did, then and there, under said force and compulsion, in order to save the aforesaid lots from being returned as delinquent and sold, pay to said defendant the sum of $98.20, the said sum being the first half of the first installment claimed to be due upon said special assessment, so as aforesaid made, levied and entered upon said duplicate.
    “And this plaintiff further says that at the time of making the aforesaid payment to said defendant ho entered his solemn protest against the payment of the same.”
    The second cause of action is substantially as the first, except that the payment was made June 15,1877.
    The third cause of action was substantially as the first, except that the assessment was for the sum of $1,309.40, and covered an additional lot, and the installment of $130.94 sought to be recovered back was paid January 18, 1878.
    The fourth cause was substantially as the last, except that the installment $98.20 was paid on the 24th of June, 1878, just within the year prior to the commencement of the action.
    The defendant demurred separately to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; and, finally, upon the same ground, to the entire petition.
    The court sustained the demurrer to the first, second, and third, and overruled it as to the fourth cause of action ; and there being neither amendment nor further pleading, judgment was rendered for the defendant upon the first three causes of action, and against him for the sum of $98.20 on the last one.
    On error, the district court of the county affirmed the judgment of the common pleas on each cause of action. And this proceeding is now prosecuted in this court on the petition of defendant below to reverse the judgment against him upon the fourth cause of action ; and by the plaintiff below upon a cross-petition to reverse the judgment against him upon the first three causes of action.
    The demurrer to the first three causes of action was sustained on the ground that each one was barred by the limitation contained in section 5848 of the Revised Statutes, to wit, one year from the payment of the assessment. And this is assigned for error by the plaintiff below upon his cross-petition.
    The plaintiff in error' claims that, (1) it does not sufficiently appear in the petition that .the assessment was illegal, and (2) the petition does not show an involuntary payment ; and for these reasons asks that the judgment against him be reversed.
    
      Kain, Sherwood § Bunts, for plaintiff in error.
    It does not sufficiently appear in the petition that the assessment was illegal.
    The petition simply asserts a conclusion of law.
    Whether or not the assessment was illegal and void was the very essence of the action, and was for the court to determine from facts, alleged or proved.
    ' The right to recover depended chiefly upon whether or not the tax was illegal, and the court erred in taking for granted upon an allegation of plaintiffs, the very matter Which it was its duty to determine from facts presented.
    “ Matter of law is never matter to be alleged m pleading. No issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them without allegation the courts pronounce and apply the law. This is true alike in respect to statutes and to the common law.” Pomeroy’s Remedies and Remedial Rights, § 530; People v. Commissioners, etc., 54 N. Y. 276-279; Commonwealth v. Cook, 8 Bush, 220-224; Clark v. Lineberger, 44 Ind. 223, 228, 229; Peterson v. Roach, 32 Ohio St. 374; Railroad Co. v. Moore, 33 Ohio St. 384.
    
      
      James Fitch and John F. Fnsign, for defendant in error.
    It is not claimed by the plaintiff in error, and it nowhere appears in the record that any question as to the sufficiency of the averment in plaintiff's petition as to the illegality of the assessment, was in fact raised by the defendant below, or that the question was considered, passed upon ordetermined.
    •Questions as to the sufficiency of the averments in pleadings can only be raised by motion to make definite and certain, or to strike out, and not by demurrer, and if the defect in the statement of facts does not amount to a want of a cause of action, or defense, but the facts or the ultimate fact can be resolved into, or, if well stated, would constitute a valid cause of action or defense, a demurrer is not proper, but a motion to make definite and certain is the proper mode of objecting. Pom. Rem., § 549; Bliss Code Pl., §213; School Sec. 16 v. Odlin, 8 Ohio St. 293, 297; Schrock v. Cleveland, 29 Ohio St. 499; Union Bank of Massilon v. Bell, 14 Ohio St. 208; Swan’s Pl. 153-157; Thompson v. Cook, 21 Iowa, 472; Gilmore v. Norton, 10 Kan. 491.
    The averment in the petition, that, “ said special assessment, so made, levied and entered upon said general duplicate as aforesaid, was and is wholly illegal and void,” is not merely a conclusion of law. Although it is a conclusion from certain other facts not represented, it is, nevertheless, an averment of a fact. Ithas some of the elements of fact in it; it is a statement of an ultimate fact, or of an admitted fact, or it may be a statement of a fact judicially determined by a court of competent jurisdiction.
    There can be no doubt that if the plaintiff' in error had answered that averment in the court of common pleas by a general denial, proof could have been offered of the illegality of the assessment under the issue as thus made up, and the plaintiff in error would have thereby waived any objection as to the sufficiency of the averment. So by filing his demurrer he has waived any objection that he might have made to the averment by motion.
    The authorities cited by counsel for plaintiff in error in support of his proposition that the averment of the petition as to the illegality of the assessment, is a conclusion oflaw, decide that a demurrer to a pleading admits facts only which are well pleaded, and not mere conclusions of law. We do not dispute the authority of those cases at all, but whether or not his demurrer admits the truth of the allegation in the petition, it certainly stands admitted by his failure to answer and deny it.
    That such an allegation is an averment of fact, see Higgins v. Pelton, 4 Cin. L. Bull. 751; Bates Pl. & Pr. 132.
    There are several exceptions to the general rule thatfacts and not conclusions of law must be averred. Code of Civil Procedure of 1853, §§ 121, 122, 124, 558.
    So the act of 1856, under which this action was brought, having been passed after the code was adopted, provided a special remedy for relief against illegal taxes and assessments. And we think that act, if fairly construed, authorizes an action of this character to be maintained by averring and showing two facts: (1) That the tax or assessment is illegal; and, (2) That it has been collected by those authorized by law to make the collection of such taxes or assessments.
    If illegal taxes or assessments can be collected, then it seems proper to aver in a petition that such taxes or assessments are illegal, and have been collected.
   Minsiiall J.

It is claimed that an assessment is an entirety, and that the statute does not begin to run, where the assessment is divided into installments, until the payment of the last one. We are of a different opinion. It may be conceded that as respects the making of an assessment, it is to be regarded as an entirety — the sum the land should bear as its proportion of the cost of the improvement, according to benefits conferred; but it does not follow that it must be so regarded as respects the mode of collection. When, for the latter purpose, it is divided into installments, one of which is to be paid each successive year until all are paid, each is to be regarded as a separate demand; and, if the assessment itself is illegal, each involuntary payment of an installment, constitutes a wrong for which a remedy is given by an action to recover back the amount so paid, within the period of one year from the collection thereof. JBy way of illustration, the purchase-money agreed to be paid as the consideration for the conveyance of a piece of land, is, as to the consideration, an entirety; but where, by the agreement of the parties, it is divided into certain annual installments, the statute in such case begins to run as to each, from the time it becomes due aud payable. The only difference in the two cases is, that in the former the right of action arises from the collection of an installment of an illegal assessment, under circumstances which show that the payment was involuntary; and, in the latter, it arises from the omission of the purchaser to pay an installment of the purchase-money according to the terms of his agreement. The involuntary payment of that which is an illegal assessment on the lands of the plaintiff, is the gravamen of the action, whether the amount paid is the whole or but a part of the assessment. Any other construction would be uhjust to assessment payers and inconvenient to the public. The fact that the right of action is limited to a year after the “assessment” has been collected, should not, as we think, have the controlling effect claimed for it by counsel for the plaintiff below. It does no violence to the probable intention of the legislature in this regard, to say, that, in the use of the word “ assessments,” installments are included; that is where an assessment is, for the purpose of collection, divided into installments, each installment is to be regarded as an assessment. Therefore the judgment of the district court affirming the judgment of the court of common pleas upon the demurrer of the defendeut beiow to the first, second and third causes of action contained in the petition, should be and is affirmed, the action not having been commenced within a year from the payment in either case.

It remains to be considered whether the judgment rendered against the plaintiff in error upon the fourth cause of action should be reversed. We are of the opinion that it should, for the principal reason.that it does not appear as a matter of fact, that the assessment, an installment of which is sought to be recovered back, was illegal. The averment as to this, in the pleading, is simply that it was illegal and void. But this is a legal conclusion, and does not present an issue of fact. The facts from which it is claimed the illegality arises, should be stated, that the court may judge whether the assessment was illegal or not.

There are certain cases in which legal conclusions, stated in connection with certain averments of fact, have been held sufficient at least after verdict; as, for instance, an averment of indebtedness on account of goods sold and delivered, or of work and labor performed, at the request of the defendant; for the facts stated import an indebtedness. But we know of no case, and certainly none has been cited, that has gone to the length of holding that an averment that the defendant is indebted to the plaintiff, would support a recovery in any instance; and yet such an averment is no more purely a question of law, than an averment that an assessment is illegal and void. The rule of pleading with its distinctions in this regard, is treated by Bliss in his work on Code Pleading, at § 213 and § 334, which see with the cases cited by the author; also Pom. Rem., § 530, and the cases cited in the note thereto.

It is claimed by counsel'for the defendant in error that this question was not made below. However this may be, it is made by the demurrer to the cause of action on which the judgment was rendered against the plaintiff in error; is now insisted on by his counsel, and, being an error apparent on the record and assigned for error, can not be disregarded by this court on the statement of counsel that it was not insisted on below. Judgment must be given upon and not against the record.

As to the point that the petition does not show an involuntary payment, there is an unresolved doubt in the minds of the court. "Whether the only compulsion to which the plaintiff was subjected, was that unless he paid his taxes proper, his lots would be returned delinquent and sold, and thereby, and for no other reason, he was compelled to pay the assessment, is not clear. If it were clear that this is the proper, construction of the pleading, then a doubt arises as to whether a payment made under such circumstances only would amount to an involuntary one. But inasmuch as the judgment must be reversed and cause remanded for further proceedings for the reason already given, it is not deemed advisable to pass on the question in the form presented.

Judgment affirmed upon the first three causes of action; and reversed upon the fourth, and cause remanded to the court of ■ common pleas for further proceedings  