
    Trustees v. Thoman et al.
    
      Recovery — Effect of Possession — Illegal taxes — Involuntary payment of — Remedy—What is not involuntary payment oj — Delinquent lands — Sale—How redeemed.
    
    1. It is a general principle in the law of recovery that a party’s possession of a thing cannot be disturbed by one who cannot show a better right to it. Therefore, irrespective of his own title, a party to a suit has the right to object to an order requiring him to pay money in his possession, or that of his agent, to one who shows no better title to it.
    . 2. A suit cannot be maintained by one taxpayer on behalf of himself and others, to recover back taxes, alleged to have been illegally assessed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action on his own behalf.
    3. A taxpayer commenced a suit on behalf of himself and other taxpayers against the county treasurer to restrain the collection of a tax alleged to have been illegally levied, and obtained a temporary order restraining the collection of the tax until the final hearing on the merits. Subsequently he filed a supplemental petition, alleging that since the commencement of the suit — the injunction being in full force and unmodified — all had been involuntarily compelled to pay the tax by the refusal of the treasurer to receive the taxes due from them, though tendered, unless they paid the taxes that had been enjoined, and threatened to return their lands as delinquent and cause them to be sold, unless they did so: ' Held, That a payment made under such circumstances is not an involuntary one, and a recovery back cannot be had.
    4. Where the lands of a person have been sold at delinquent tax sale, he must, in the first instance, apply to the auditor of the county for their redemption, under the provisions of the statute in such case made and provided. Section 2889, et seq.
    
    (Decided April 24, 1894.)
    Error to the Circuit Court of Crawford county.
    Formerly the territory, now included in Jackson and Jefferson townships "of. Crawford county, formed one township by the name-of Jackson. In 1872, the township was divided so 'as to form two new ones, one retaining the name oUJackson, and the other was called Jefferson. At tho time of the division, the old one was indebted in .the sum of $800 on bonds that had been issued foi the purpose of paying bounties to veteran volunteers, that had been credited to the township. Subsequently the township that retained the name of Jaókson paid off these bonds, the last one having been paid in 1885. Whereupon the trustees of t¿\is township, claiming to act under the provisions otf § 1386, Revised Statutes, made a levy upon the tax-, able property of Jefferson township to compensate their township for the payment of the portion which they claimed was due it from Jefferson, the amount. levied being $283.38, or one-third of the sum paid by their township. The levy having been certified to the county auditor, and by him placed on the duplicate against the taxpayers of Jefferson, Henry Thoman for himself and two hundred and thirty-eight taxpayers of that township, commenced a suit in the common pleas court against Shonert, treasurer of the county, for the purpose of restraining the collection of the tax on the ground that its assessment was illegal and without authority of law, and obtained a temporary injunction. The trustees of Jackson township were made defendants. The defendants answered, separately, but substantially the same. Each denied that the suit was brought with the consent or at the request of the other taxpayers. And the trustees, as one of their defenses, averred: “That in the year 1872, the said township of Jackson in said county embraced the territory now comprising said Jefferson township; that at the same time and prior thereto, the said Jackson township, by reason of an act of the general assembly of the state of Ohio, entitled an act to provide bounties for re-enlisted veteran volunteer soldiers, had become liable for the payment of certain veteran bounty claims in aggregate some $849.08, the exact amount defendants are unable at this time to state; that said liability extended to and embraced the whole of the territory aforesaid which was then all in and a part of Jackson township aforesaid.
    “These defendants say that in the year of 1872, aforesaid, the said township of Jackson was divided and the township of Jefferson aforesaid was erected and created out of the territory of Jackson aforesaid, and said Jefferson township received $1,323.00 or more, the exact amount they are-unable to state more particularly, of the funds then and theretofore in the treasury of said Jackson township, being one-third of the said Jackson township funds, and said Jefferson township then and thereby became liable in law and in fact for the payment of one-third the liabilities of said former township of Jackson.
    
      “These defendants further allege that said Jackson township as now constituted, was compelled to pay and did pay the whole of said indebtedness, and that said Jefferson township paid no part thereof, although often requested so to do: that the amount and portion of said liability and indebtedness which said Jefferson township owed and were bound to pay was and is $283.02, and that the territory of Jefferson township and its taxable property is bound for the payment of said indebtedness, and for the purpose of obtaining payment thereof in pursuance of the statute in such case made and provided, these defendants, in the rightful exercise of their powers and duties, caused the same to be certified to the county auditor for taxation and collection.”
    An amendment to the petition having been made, in obedience to the order of the court, stating facts that as claimed made the tax illegal, Shonert, the treasurer, answered, and, after denying the averments of the petition as to the invalidity of the tax, and the right of the plaintiff to sue for the other parties, as a second defense, averred:
    “That on or about the 19th day of September, AM). 1886, said trustees of Jackson township, procured from said county auditor a certified abstract of all the taxable property of said Jefferson township, and proceeded to and did levy said sum of two hundred and eighty-three dollars and two cents on the taxable property of said Jefferson township, and certified an abstract thereof to the auditor of said county. That said county auditor entered the same upon the tax list and duplicate of said county and designated on said, duplicate the said levy of said township trustees as a ‘special tax,’ which, said duplicate, together with said abstract and the certificate of said trustees certifying for what purpose said levy was made, were by said county auditor delivered to this defendant as such treasurer for collection on or about the — day of October, A. D. 1886. And this defendant alleges that said abstract and cer-. tifieate were by him in his official capacity kept at his office for inspection by the taxpayers of said Jefferson township, and were by this defendant presented for inspection to all of the taxpayers of said Jefferson township who asked for an explanation of said tax at the time of the payment of their respective taxes on the duplicate charged against them. This defendant says that he has received the whole of said tax, that prior to the payment thereof he made no effort as such treasurer to collect the same, or to enforce the payment thereof by any process authorized for that purpose, but received said taxes when payment thereof was offered in the usual course of his official business as such treasurer. That said tax levied by said township trustees of two hundred and eighty-three dollars and two cents was all paid voluntarily, and without protest or objection.”
    The plaintiff replied to these answers; and, also, at the same time filed by leave of the court what is termed a supplemental petition, in which he averred: “That since the commencement of this action, and since the allowance and service of the injunction heretofore granted herein, which injunction has not been modified and is still in full' force and effect in law, the said defendant, Christian H. Shonert, as treasurer of said county, unlawfully, in violation of said injunction, and in contempt of this court, did collect and receive the whole of said ‘ special tax.’ in the petition mentioned and set forth, and now has the same in the county treasury of Crawford county, Ohio, as such treasurer : that said treasurer unlawfully, as aforesaid, and against their will and earnest protest, enforced and compelled the payment of said • ‘special tax’ by said two hundred and thirty-eight other taxpayers in this way; that when said taxpayers, or any of them, came to pay their lawful taxes to said treasurer, on the tax. duplicate assessed against their said lands, the said treasurer in each and every instance, refused to take, or accept said lawful taxes, or any part thereof, unless said taxpayers, or any of them would, at the same time, pay said ‘special tax, ’ and threatened that in case the whole of said tax, including said ‘ special tax’ was not paid, that the lands of each taxpayer so refusing to pay, would be by said treasurer, returned delinquent, and the collection of the same enforced by delinquent tax sale, and that to save their lands from such sale, said two hundred and thirty-eight taxpayers paid said ‘special tax’ under protest and against their will, in order to save their lands from being sold as aforesaid.”
    He further avers that he many times tendered “the lawful taxes” due from him on his lot; that the treasurer, disregarding the injunction, refused to receive the same, unless he paid the “special taxreturned his land as delinquent, and sold the same at delinquent tax sale to Peter Bauer, who holds the auditor’s certificate therefor; that the same is void and should beset aside; thatShonert’s term having expired, he turned over to his successor, Frank Blick, the whole of the special tax so illegally collected; that Bauer and Blick, together with the auditor of the county, Adam High, should be made parties. He then renewed the prayer of his former petition, and also prayed for an order restraining the treasurer from paying the money to any one until the final determination of thecase; .that the sale made by the treasurer should be setaside, and the plaintiff restored to all things lost by reason thereof; and, finally, that the treasurer, or his successor, “should be ordered to pay back to each and every of said taxpayers, and this plaintiff, the full amount of said special tax so unlawfully collected. ”
    The various defendants answered: Shonert, the former treasurer, denied that he collected the tax from any of the parties by braking threats of any kind. Blick, his successor, admits that he has in his possession as treasurer of the county, some $270.00, received by his predecessor and which he received from him. He had not collected any of it. Bauer averred that the property of the plaintiff had been returned delinquent for the taxes of 1885 and 1886; that it was duly advertised, and purchased by him at the tax sale in 1887 for the taxes due upon it, $5.13; that he has since paid the taxes thereon, and is willing to transfer the auditor’s certificate to the plaintiff on receiving the amount so paid, $13.73. The court at the hearing upon the pleadings and evidence found for the defendants and dismissed the action of the plaintiff. It was then appealed to the circuit court, where the defendants moved for judgment upon the pleadings. The motion was overruled and a hearing had upon the pleadings' abd evidence ; and, as appears from the record first filed in this court, the court at the request of the defendants, made a finding of the facts separate from the conclusions of law, and rendered judgment thereon, that the costs be paid out of the fund, and that the balance $115.20 be paid on the order of the county auditor to the trustees of Jefferson township; dismissed the “claim.” of Peter Bauer, and of the other parties, and taxed the cost of the treasurer and auditor of the county to the trustees of Jackson township. Subsequently, as appears from a record filed since the commencement of proceedings in error in this court, the circuit court, by a nunc pro tuno order, struck out the finding of fact as having been made without authority.
    Error is now prosecuted by the trustees of Jackson township and the other parties affected, for a reversal of the judgment of the circuit court on the ground that it is contrary to law, and should, upon the pleadings, have been for them.
    
      S. R. Harris, for plaintiff in error.
    There is no allegation in last petition that plaintiff has authority to sue Blick for the other men’s money. Each must sue for himself. Plaintiff does not stand in the same class with them. He did not pay his assessment. They did. Plaintiff can not maintain his action against Blick for any of the money in Blick’s hands, because he paid none of it.
    The plaintiff not standing in a position similar to the others cannot sue in their behalf. The men who paid the money for plaintiff below have no pleadings on file showing how much they severally paid, or that they want their money back. On "the contrary, all have acquiesced in it until they are
    
      barred by the statute. Sec. 5008, Revised Statutes; Quinlan v. Myers, 29 Ohio St., 508.
    A court of equity will not stand on the order in which the money came into the county treasury. It is sufficient that it was paid by property owners of Jefferson township who owed it, for the use of the Jackson township that was legally and equitably entitled to it. Pomeroy’s Equity, section 378.
    The action is barred by limitation. All taxes were collected before September 18, 1887. Wilson v. Pelton, 40 Ohio St., 306; Younglove v. Hackman, 43 Ohio St., 69.
    Remedy for illegal tax after sale. Section 32, Sw. & Or., page 104. Re-enacted, Revised Statutes, section 2880.
    The judgment is palpably erroneous for -the reason that it does not follow the pleadings. That the judgment must be in accordance with the pleadings, is elementary, and hardly needs argument. 3 Blackstone, 395, 396; Freeman on Judgements, section 2; Wright’s Rep., 518; 2 C. S. C. R., 167; 1 W. L. M., 699.
    
      Finley & Bennett, Cahill & Cahill and Dan Babst Jr., for defendants in error.
    Was the action rightfully brought? We brought the action under section 5008 of the statute.
    The facts are set out in the petition, and the right of each one to bring an action is supported by the decisions of this state. Upington v. Oviatt 24 Ohio St., 232; Manetho v. Golden, 5 Ohio St., 261; Umsted v. Buskirk, 17 Ohio St., 113.
    
      Did the trustees of Jackson township have any authority to levy the tax ? The answer to that question is to be found by reference to sections 1385 and 1386 of the Revised Statutes of Ohio.
    The holder of these tonds could have enforced a levy of a tax^ for the payment of them, and the trustees of Jackson township could have in making the levy to pay them, included the whole territory. Bates v. Richland township, 20 Ohio St., 362; Cass township v. Dillon, 16 Ohio St., 39; State v. Harris, 17 Ohio St., 608.
    Before or after the division, the trustees of Jackson township had power to levy the tax on the whole territory payable in installments, to pay these debts. 63 Ohio Laws, 188; 64 Ohio Laws, 232; 77 Ohio Laws, 294; Revised Statutes, sec. 1386; 20 Ohio St., 362.
    3. The facts found must be presumed to have been proved by the evidence. Dallas v. Ferneau, 25 Ohio St., 637-8.
    The judgment must be presumed to be sustained by the facts found. The court is vested with a discretion to try the case upon the evidence outside of the pleadings where no objection is made and to render judgment thereon, and judgment so rendered, will not be disturbed by a reviewing court. 41 Ohio St., 299, 407, 408; 34 Ohio St., 68, et seq.; 15 Ohio St., 216; 21 N. Y., 502; 116 Pa. St., 565; 12 Wend. Rep., 60; 13 Wend. Rep., 860; 71 Iowa, 71; 72 Cal., 251; 40 N. W., 265; 37 Minn., 68; 12 Ohio St., 8.
    4. Counsel argue very earnestly that this is an action to recover back taxes, and that it is barred by the statute of limitations. It i s answer enough to say that the prayer to recover back, cuts no figure in the case. The parties did not recover back whether the right to recover existed or not. The right to have the treasurer enjoined from paying over the money to Jackson.township was not barred.
   Minshall, J.

It may well be questioned whether the plaintiff was entitled to an injunction ag’ainst the tax levied by the trustees of Jackson township, upon the case made by him in his original and amended petition. It will appear from an examination of the statute authorizing the division of townships, now embraced in sections 1385 and 1386, Revised Statutes, that the original township and all parts and portions of the same, remain liable for all claims and demands existing against it at the time of the division. At the time of the division in 1872, the original township of Jackson was, by an act of the legislature, liable for the payment of bounties to the veteran volunteers that had been credited to it. This liability was discharged by the new township, retaining the name of Jackson, with money obtained by an issue of bonds that it subsequently paid off. But the liability discharged was as much a liability of Jefferson in proportion to the value of its property for taxation, as it was of the township of Jackson; and there is no question but that under the statute, its trustees might, instead of issuing bonds, have made a levy upon the taxable property in both townships, for that purpose; or might have done so to pay the bonds as they matured. Instead of this, Jackson township paid the bonds and made a levy upon the taxable property of Jefferson for its estimated portion of the indebtedness, one-third, that being the part of the funds received by Jefferson belonging to the original township at the time of the division. Now all that can be alleged against the course pursued is, that it was irregular, and may be in excess of the amount for which a levy could rightfully be made. So that, without an averment, and which is not made, that the amount assessed was in excess of the amount justly due, what standing had the plaintiff in equity ? That a part was due there can be no doubt; 'and if he claimed an excess he should in equity have tendered the amount due, and asked an injunction against the balance, according to the maxim, that he who asks equity must do equity. But the argument is, that the township of 'Jackson, by paying the indebtedness, extinguished it, and cannot, therefore, assert any claim upon it against Jefferson. This, however, is contrary to the well settled principle, that where one of two or more jointly or severally liable for the payment of a debt, pays it, the one so paying, has in equity a claim for contribution against his co-debtors. Payment under such circumstances, does not extinguish the debt as to them, but keeps it alive for the purpose named; and no reason is perceived why it should not apply to this, as to any similar case. But we do not dispose of the case on this ground.

The judgment ordering the payment of the costs out of the fund created by the payment of the special tax, and the remainder to Jefferson township, is erroneous; no reason is perceived for it, and it must be reversed. Jefferson township is not a party to the suit, and if it was, it, as a township, is not shown to have had any interest in, or title to the fund whatever. The taxes were paid by persons residing in it; and, if wrongfully levied and collected, each, as an individual, had the right in a proper ease, to recover back what he paid. The suggestion that if Jackson township was not entitled to the money, it cannot complain of the order made, is without force. It is a fundamental principle in the law of recovery, that a defendant’s possession of a thing cannot be disturbed by one who fails to show a better right. In this case the treasurer’s possession of the money was that of Jackson township; and it has therefore, a perfect right to complain of the order made.

But it also appears as we think from the pleadings, that judgment should have been rendered for the defendants, dismissing the petition; and that the court erred in overruling the motion for such judgment. By the amended and the supplemental petition, it appears that, since the commencement of the suit, the taxes had all been paid by those assessed, except that of the plaintiff, whose lands having’ been returned delinquent, were sold and the taxes, some 14 cents, paid by the purchaser. So that as to him there was nothing to enjoin, the tax having been paid; and there was nothing for him to recover back, as he had paid nothing. Having’ permitted his land to be sold, without enforcing the injunction against it, as he might have done, his remedy thereafter was to apply to the auditor of the county for its redemption, under the provisions • of the statute in that regard, for the redemption of delinquent lands. Section 2889 and the following sections. The remedy is an adequate one, but can not be had in this suit, which, under the supplemental petition, is an action to recover back the tax, alleged to have been unlawfully assessed, and paid under duress. But if he, as the others, had paid the tax, there is no rule of pleading or practice by which he for himself and the others can prosecute an action to recover back the money so paid. A suit to recover back is quite different in the grounds upon which a recovery can be had, from a suit to enjoin a tax. In the latter case, each is not only interested in the question involved, but a judgment may be rendered in favor of all as a class, upon substantially the same case, and terminate the litigation. Not so in an action. to recover back money paid under duress. In such case the judgment must not only be for each according to the amount due him, but must depend upon whether each as an individual, paid voluntarily or involuntarily.

But beyond this question of practice, it is shown by the supplemental petition that the payment by all of those who made payment was a. voluntary act on the part of each; and that there is no ground for a recovery back by any of them. It appears from the record that at the commencement of the suit a temporary order was made restraining the •collection of the tax until the further order of the court; and that it was during the pendency of this order that the payments were made. The averment of the supplemental pleading’ is: “That since the commencement of this action, and since the allowance and service of the injunction heretofore granted herein, which injunction has not been modified, and is still in full force and effect in law, the defendant, Christian Shonert, as treasurer of said county, unlawfully, in violation of said injunction, and in contempt of this court, did collect and receive the whole of said ‘special tax,’ and now has the same in the county treasury.” In this state of the case it is not possible to perceive how the parties, or any of them, can he said to have involuntarily paid any part of the tax for which a recovery is now sought. /They were under no legal compulsion to do so. If they paid because of the threat of the treasurer to return their lands as delinquent and cause them to be sold, or to take any other coercive step, it was their own folly, during the pendency of the injunction, to have listened to or been influenced by such threat. With the injunction in force, the treasurer was powerless to adopt any compulsory steps whatever. If he had attempted to do so, he could at once have been attached and punished by the court for disobeying its order. So that each must have paid with entire freedom from - anything like duress in law. It may not have been done with alacrity, but it was none the less a voluntary act. ^ Ample protection is afforded by law to the taxpayer against illegal levies. He may in the first instance enjoin the collection; or, having been compelled to pay under circumstances, deemed duress in law, and against his protest, he may recover back the amount paid; but it is unnecessary and contrary to its policy to permit both remedies to be adopted and pursued at the same time. Where the remedy by injunction is resorted to and a temporary restraining order obtained, he cannot be coerced into payment during its pendency,.and payment under such circumstances must be deemed a voluntary act, or as a waiver of any objection to the validity of the tax. \

Jtidgment reversed, and judgment for the defendants beloto, dismissing the aeUon of the plaintiff.  