[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 623
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 624 The petitioner in the above proceeding is the executor of the will of Lydia M. Wilcox, who died in the year 1890. A part of the property disposed of by the will consisted of a farm of one hundred and thirty-one acres. There was no specific devise of the farm, but the testatrix gave various pecuniary legacies to her children, amounting in the aggregate to about $12,000. She then devised and bequeathed the residue and remainder of her estate, real and personal, to her eight children by name, to be equally divided between them, but the residuary share of one of them was in trust to the executors until the child arrived at the age of twenty-five years, and the executors were authorized in the meantime to expend such portion of the share for the support and maintenance of the beneficiary as might be necessary. A general power of sale was given to the executors to sell any or all the real estate at discretion. For five years after the death of the testatrix the farm was assessed by the assessors of the town where it was situated to the "Estate of Mrs. L.M. Wilcox," except in the year 1892 it was was assessed to "Heirs L.M. Wilcox." In the years 1892, 1893, 1894 and 1895 the farm was sold by the county treasurer for non-payment of general taxes levied by the board of supervisors upon the assessments above described. The land was purchased upon each of these sales by the same persons and at least two conveyances delivered to the purchaser by the treasurer.
In the year 1896 the executor desired to dispose of the farm, and a purchaser was ready to buy it, but on examination of the abstract of title he refused to take it unless the taxes *Page 625 were paid and the apparent cloud removed. The executor then, upon notice to the purchaser at the tax sale, applied to the county treasurer under chapter 107, Laws 1884, § 23, to cancel the sales on the ground that the assessments were void and the application was refused. In the year 1896 he presented a petition to the board of supervisors of the county, under chapter 686 of the Laws of 1892, § 16, asking that the taxes and expenses which he was compelled to pay, amounting to $287.07 with interest, be refunded. This application was refused, although it appeared that the petitioner had paid the taxes in order to make sale of the land under the power contained in the will.
The executor then brought this proceeding by petition to the County Court for an order directing the board of supervisors to refund the amount so paid on account of the taxes referred to. The application was denied, apparently upon the ground that the executor was not obliged to pay the taxes, and hence his action in that respect was voluntary, and that in such cases the party making the payment had no right to have the money refunded. The Appellate Division has reversed the order of the County Court and granted the relief prayed for in the petition. That the assessments were void and the tax sales made under their authority a nullity is not seriously denied by the learned counsel who has argued in support of the appeal.
But by ch. 107, § 10, of the Laws of 1884, which is applicable to the county of Monroe, the deed given at the sales is made conclusive evidence of the regularity of the sale and presumptive evidence of the regularity of the previous proceedings.
This is not a common-law action to recover an illegal tax paid under duress in law or in fact, nor is it an action in equity to remove a cloud upon title. The former action generally requires proof of duress of some kind and in some degree, and the latter is based upon the theory that the incumbrance does not appear upon its face to be void, but requires extraneous evidence to show that it is void in fact. This is a proceeding *Page 626 under a special statute which confers power upon the supervisors to refund to any person the amount of an illegal tax collected from him, and upon the county judge power to direct that it be refunded in case the board refuse or neglect to perform the duty implied in the statute. (Matter of Buffalo M. Gas L. Co.,144 N.Y. 228.)
There are two questions which have been discussed at considerable length by counsel that do not appear to us to be of much importance in the disposition of this appeal: (1) Whether the payment of the taxes in question by the executor was voluntary or under compulsion or duress. (2) The duty or obligation of the executor to pay the taxes as the representative of the estate or under the power of sale or as trustee under the trust of the share of one of the children.,
Whatever the interest of the executor was in the real estate or whatever the nature of the trust, it is quite clear that he stood in such relation to the property as warranted him in paying the taxes under the circumstances; and, upon any accounting with respect to the proceeds of the sale, he could, we think, properly insist upon being allowed for what he had thus paid.
With respect to the other question, all that the statute requires a party who makes such an application to the supervisors to show is that the county, through its proper officer, had collected from him a tax illegally or improperly assessed or levied. It would not be very difficult to show that the payment in this case was compulsory; but whether it was or not, the executor had the right to have the money refunded, since the statute was intended for the benefit of a party who pays an illegal tax voluntarily, as well as one who pays under what the law terms duress.
This proceeding was not governed by the technical rules that apply to actions at law to recover money voluntarily paid, or to suits in equity to remove a cloud upon title. The statute furnishes a convenient and summary remedy which enables the county to restore, without litigation or expense, what it ought not to retain; and a citizen who has paid an illegal tax, *Page 627 without waiting to have his property advertised and sold, to obtain justice.
The benefits of the statute are not confined to parties who have paid an illegal tax upon compulsion, but extend to all persons who have paid taxes that they were not legally bound to pay.
It is said that the petitioner has proceeded under the wrong statute; that he should have procured the sale to be canceled under the local statute (Ch. 107, Laws of 1884), and not have applied under section sixteen of the County Law. The former statute was intended mainly to enable a purchaser who had purchased land upon an illegal sale to withdraw from the transaction and have the purchase price refunded to him after the sale had been canceled. The latter is a general law for the benefit of any one from whom an illegal tax has been collected. There is no conflict between the two statutes. The petitioner did proceed under the local statute and failed to obtain the relief. This did not preclude him from making application to the board of supervisors. The former application was not a bar to the latter. Moreover, it does not appear that any such point was raised or considered below.
The application of the taxpayer to the board of supervisors and the county judge is informal, and not governed by any established rules of procedure.
We think the order appealed from was right and should be affirmed, with costs.
All concur.
Order affirmed. *Page 628