
    Woolley v. Staley, Treasurer.
    1. Money paid under a mistake of facts, and without consideration, may, as a general rule, be recovered back.
    2. Where a tax-payer, under a belief, justified by the circumstances, that there is a legal charge against his property upon the tax duplicate in the hands of the treasurer, pays the amount thereof to such treasurer, when, in fact, no such charge appeared on the duplicate, and the payer was under no legal or moral obligation to pay the same, he may recover it back as a payment made under mistake of fact.
    3. Where a bill of exceptions discloses all the evidence offered on the trial, and this court, upon examination thereof, finds that all the facts which such evidence in any degree tends to prove will not sustain the judgment, it must be reversed.
    Motion for leavé to file a petition in error to the District Court of Hamilton county.
    Plaintiff in error commenced an action in the superior court of Cincinnati, against the defendant, to recover back the sum of $121.81, paid to the defendant as treasurer of Hamilton county, upon an illegal demand, and under a mistake of fact. The petition alleges the facts substantially as they are hereafter recited. The defendant filed the following answer :
    “ Defendant says that in December, 1880, there was due and unpaid on said premises, taxes to the ¿mount of $121.81. That plaintiff came to the auditor of Hamilton county, and admitted to him an indebtedness in said sum as taxes on said premises, and asked the said auditor for a bill of the same, and an order upon which he, the plaintiff, could pay the said taxes to the treasurer of said county, and that upon said order from the auditor, duly presented to the treasurer at his office, said taxes were received by the defendant from the plaintiff as such taxes on said premises.
    “ Defendant says that said payment was made by the plaintiff voluntarily, and with full knowledge of all the facts; that no demand was made for the same by any one legally authorized to make or enforce such demand.”
    “ And he denies all other allegations of the petition not herein specifically admitted.”
    It was admitted upon the trial, that in 1871, one Lucien Ford was the owner of lot seven, in Kemper’s subdivision, in the city of Cincinnati, that the decennial appraisement of real estate was made that year, and this lot returned by the assessor at $5,000. The Decennial Board of Equalization increased the amount to $6,250; which amount was subsequently equalized and reduced by the county and state boards of equalization to $1,180, at which valuation it was placed on the tax duplicate. In 1871 Ford sold a part of the lot to the plaintiff, and the remaining part to one Evans. The auditor divided the total valuation between the two parcels, by placing the part bought by plaintiff on the duplicate at $2,480, and the part bought by Evans at $2,000. Afterwards, during the same year, Evans sold his part to plaintiff, who thereupon became the owner of the whole lot. The separation made on the tax duplicate, however, was continued; the lot appeared upon the duplicates from 1871 to 1880, inclusive, as follows:
    
      
      
    
    The taxes charged thereon for each of said years were duly paid. In 1880 the commissioners of the county entered into a contract with one C. F. Hornberger, by which said Hornberger was employed to ascertain and furnish to the county auditor such facts and evidence as were necessary to authorize him to subject to taxation any property improperly omitted therefrom, etc.; agreeing to pay him as compensation therefor twenty-five per cent, of all sums collected and actually paid into the county treasury as taxes on such omitted real property.
    That plaintiff owned the said lot seven, and had regularly paid all taxes thereon, and that there was no charge for back taxes upon the duplicate against said property.
    That plaintiff received a written notice from C. F. Horn, berger, notifying him that he was employed by the county commissioners to hunt up property omitted from the tax duplicate — that some of plaintiff’s property had been omitted, and that he was indebted for back taxes on said property, and requested',him to call on him.
    That plaintiff, in company with C. F. Hornberger, went to the auditor’s office; that a wrangle over this matter took place there ; that the auditor asked plaintiff if the tax was all right; plaintiff said: “Lf I have to pay the tax, I presume it must be all rightthat the auditor gave plaintiff an order on the treasurer, in terms authorizing the treasurer to receive “ $424.84 tax from 1872 to 1880, on $1,800 value, on part of lot seven aforesaid omitted from duplicate,” and signed the same as auditor. Plaintiff thereupon paid the same to the treasurer, taking his receipt therefor as for taxes from 1872 to 1880 on part of lot seven, valuation $1,800 omitted from tax duplicate.
    
      All the above recited facts were admitted on the trial.
    The plaintiff then offered by his own testimony to prove, and was prepared to testify, and would testify, “ that in obedience to said notice, he called on C. F. Hornberger; that said Hornberger represented to him that he was regularly employed by the county commissioners to hunt up property omitted from the tax duplicate; that a part of lot number seven had never been returned by the decennial assessor of 1870, and had been omitted from the tax duplicates of 1871 to 1880, inclusive ; that there were taxes due on the omitted part of said lot, amounting to over $400 ; that the same, were charged on the duplicate against him; that if he did not pay them, penalties would be added, and the lot placed on the delinquent list and sold.
    The defendant objected to said evidence, the objection was sustained by the court, to which the plaintiff at the time by his counsel excepted.
    The plaintiff then testified as follows: “ At the time I paid said taxes, I believed that said taxes were charged up against my property on the tax duplicate, and that the auditor had so certified the said taxes upon the -tax duplicate to the treasurer for collection, and that these charges of back taxes existed against my property, in the auditor’s and treasurer’s offices. I did not find out that these taxes- were not charged against me on the duplicate, until some time after I had paid them.”
    The defendant then called E. W. Pettitt, who testified as follows: “ I am the deputy auditor. I drew the order on the treasurer to receive this. This tax was for part of lot seven, owned by plaintiff, and claimed by us to be omitted from the duplicate. This tax was never charged upon the duplicate. 1 generally attend to the business of making out orders; sometimes the auditor does it. These back taxes on this omitted land was unpaid.”
    The defendant also called W. S. Cappellar, who testified as follows : “ I am the county auditor. These taxes are for an omitted part of the land in lot No. 7, Kemper’s estate, belonging to plaintiff, not returned by the decennial assessor of 1870.”
    
      And this was all the testimony offered in the ease.
    Judgment was rendered for the defendant. The district court affirmed that judgment, and leave is now asked to file a petition in error in this court to obtain a reversal of such judgment.
    
      John R. Von Seggern, for the motion,
    on the question as to the right of recovery of back taxes, cited Stephan v. Daniels, 27 Ohio St. 517; Bank v. Doty, 9 Ohio St. 508; Covington v. Powell, 2 Met. 226 ; 15 Vt. 460 ; 51 Miss. 27; 77 N. Y. 342; Ins. Co. v. Britton, 8 Bosw. 154.
    
      O. J. Cosgrove, contra.
   Doyle, J.

That the judgment of the superior court is erroneous seems to us quite clear, and if we have power to review it, in tbe manner in which the question is. presented, it must be reversed.

The question arises in the case, how far and for what purpose, if at all, we can look at the bill of'exceptions to determine whether the judgment was based upon any evidence to sustain it, under the act of April 18, 1880, 80- Ohio L. 169.

That we cannot consider the weight of the testimony, or examine the bill of exceptions to determine whether the verdict or judgment is against such weight, is clear.' Watson v. State, ante. If there is any evidence in the record which, if true, would support the judgment it cannot be reversed here, whatever the fact may be as to where the clear preponderance is.

There is, however,-in the record before us no evidence-which, in view of the admitted facts, tends to establish that-any tax was due from the plaintiff upon the lot in question, or that any was in fact charged to him upon any duplicate in the hands of the treasurer; which duplicate is alone his authority to receive or collect any money as taxes from the citizen. That which was admitted upon the trial clearly shows that the. plaintiff had,paid all the taxes assessed or charged against his lot for the years in question; that no part of such lot had ever been omitted from the tax duplicates; that there was no error to correct, and the auditor never .exercised the power granted him by sections 1038, 1039, 1010, Revised Statutes, to correct errors' in the duplicate; that the payment was made under a mistake to an officer having no authority to receive it, wholly without consideration, and under circumstances which justified the plaintiff in error in believing that it was charged against him on the duplicate, and that he was obliged to pay it.

These facts are not questioned here, but the judgment is sought to be maintained on the ground that the payment was voluntary, and hence no action to recover back the money thus paid, can be maintained.

The error, which appears to us manifest in this position, is in calling this the payment of a tax. If it be conceded that the payment was voluntary, in the sense that there was no legal process in the hands of the treasurer, and no duplicate containing the charge upon which he could distrain, or by returning the property delinquent sell the land, it nevertheless remains true that it was not the payment of a tax, but of a sum of money under a mistake to persons having no authority to receive it, although claiming such authority.

It was not a tax. It was never levied by any authority. It was never assessed, legally or illegally, upon any property or against any person. It was never charged upon any duplicate, either originally or by the auditor in the way of correction. It had no semblance of a tax, which may be so paid by the voluntary act of the party as will prevent him from recovering it back.

The paymeht was made, however, in pursuance of a demand made by this agent of the county commissioners, upon an order from the county auditor to the treasurer, authorizing him to receive it, and the delivery by the treasurer of a receipt for it as taxes. Assuming that these officers acted in good faith, and upon the belief that the sum was due, it was a mistake. The fact that they thus acted was sufficient to justify the belief, on the part of the plaintiff, that the requisite'steps had been taken to charge his lot with this tax on the duplicate. That alone would justify the treasurer in receiving it, and the plaintiff had the right to assume that he was acting legally, however illegal the tax might be. It was, therefore, a payment of money under a mistake of facts, and the question of whether it was voluntary or not, is not involved.

We find nothing in the oral testimony given ou the trial, 'which tends to qualify or contradict these admitted facts. If there was any conflict in the testimony as to whether this was a payment under mistake, we would still be compelled to reverse the judgment.

Upon that question, if it was disputed, the testimony offered by the plaintiff as to what occurred between himself and Hornberger was competent. He offered to show that Hornberger, who, it is admitted, was employed by the county commissioners, represented to him that this property was omitted from the duplicate; that over $400 was due from plaintiff for taxes upon such omitted part; that they were now charged against him on the duplicate, and that if he did not pay them penalty would be added, and his land placed on the delinquent list and sold. Taken in connection with the admitted facts, that every one of the statements thus made was untrue; that Hornberger accompanied plaintiff to the auditor’s office; that the auditor and treasurer both acted as if such statements were true, and received his money, which they would have no authority to do unless they were true, it was clearly competent for him to show that the statements of Hornberger led him into the mistake under which both himself and the officers acted. To determine whether that money was, in fact, paid under a mistake, all the circumstances attending such payment were competent to be proved.

We are not required, however, to place the decision upon that ground. We will assume that the officers acted in good faith, but under a mistake of the facts; that their action justified the belief by the plaintiff that this money was charged to him as a tax upon his property, and that he paid it undei that belief is quite clear.

Seeing nothing, therefore, in the record to support the judgment of the court, we think we have the power to reverse it. Whether there is any evidence to support a verdict or judgment is a question of law. It is as if, had the case been tried to a jury, the plaintiff had requested the court to direct a verdict in his favor. If the action had been thus tried, we think it would have been the duty of the court to have directed the jury to return a verdict for the plaintiff at the close of the evidence.

In view of the admitted facts in the case, the testimony of the auditor and his deputy was wholly immaterial and incompetent. They say that these back taxes on this omitted land. were unpaid, and that these taxes are for an omitted part of the land not returned by the decennial assessor. It amounts to nothing more than saying that this $424.84 was unpaid, and that they claimed it was due for omitted land. But as it is admitted that no land was omitted, and no taxes due, it is of no importance whatever, and is wholly immaterial.

Motion granted and judgment reversed.  