The object of this action is to recover a sum of money alleged to have been paid to the defendant to relievo the plaintiff’s property from distraint for taxes assessed upon N. K. Howard, for the years 1879 and 1880. There is no conflict in the evidence and can be no dispute as to the material facts. Whether the plaintiff was the owner of the property or the title was in Bowditch, Webster and Company, is not important. When N K. Howard gave to the plaintiff the release or bill of sale of October 27, 1880, and the plaintiff took possession under it as he did, the next day, he became the owner. If the' transaction with Bowditch, Webster and Company, about the same time, amounted to a sale, it still left the plaintiff interested, in the proceeds which he could not realize so long as the threatened distraint was pending. So that his rights would be the same' in either case and in either case the title and all interest of N. E. Howard had ceased as early as October 28, 1880. Hence the goods could not be distrained as his property. Nor could they be for his tax unless by virtue of a lien therefor.
If the city had any such lien it must be under the law of 1878,, c. 77, the material part of which is as follows : "When personal property is mortgaged or pledged, it shall, for the purposes off taxation, be deemed the property of the party who has it in possession and may be distrained for the tax thereon.” Whether this statute would authorize a distress of property thus taxed for the tax thereon, after a change in the title, it is not necessary at this time - to decide. The property in question was not under mortgage when the tax of 1879 was assessed; other property contributed to the tax of 1880, and in both years a poll tax was. added. The collector pi'oposed to make the distress not only for the tax assessed thereon, but for these other sums which were' included. If there might have been a lien for the particular part of the tax assessed thereon, there certainly was not for the amount proposed to bo, and wbicb in fact was enforced. It is too well established to need the citation of authorities to show, that when non lien claims are joined with those which otherwise might be enforced by virtue of a lien, it is destructive of the lien. It was not for the plaintiff to select such as might be secured by a lien *84and mate a tender for that amount, or for the court at this time 'to distinguish between the two and give judgment for such an amount as was not secured. The defendant made its election to levy for the whole and it must abide the consequences.
Another consideration of weight, is the fact that this tax was ■ assessed in April and so far as the mortgage is material, upon a ■stock of goods in a store undergoing a constant change. The statute evidently contemplates a distress upon the identical and ■ specific property mortgaged and taxed. It is not enough that the mortgage should be so made that it would include as between the parties, other property purchased to take the place of that ■ sold. Even if it were so, that subsequently purchased would not bo the same and there are no means of ascertaining from the •evidence in this case how much, -if any of the property that was 'taxed, remained on the third of November, when the distress was made.
But it is objected that the protest under which the money was paid was not sufficient to take it out of the class of voluntary •payments, or that no protest was made against the payment of ■ any part of the tax except such as was assessed upon the stock. It is true that the receipt recognizes the whole amount as assessed upon the stock. But this is not in accordance with the truth and no estoppel arises from the admission. The collector testifies that his purpose was to levy the whole tax and that but a part of it was assessed upon this property.
But in fact no protest was necessary. As we have seen the •plaintiff was, or stood in the place of the owner. If we can believe the collector and there is no reason to doubt his testimony, he was prepared to and would have made the levy but for the payment. That the full amount jmid, was necessary to protect the property from distress. It was then a compulsory payment. A person is not bound to wait until his property is actually taken by a legal process, one which he cannot properly resist, and cost made before he pays the claim upon it. It is sufficient if the circumstances are such as fairly lead to the conclusion that the waste and expense can be avoided only by payment. Here, the distress was begun, the illegal claim paid to prevent its consumiría-*85lion and the plaintiff is entitled to recover it back. As the caso' does not show when the money-was paid into the city treasury, interest can be recovered only from the date of the writ.
Judgment for the plaintiff for ‡ 81.76 and interest from the date of the writ.
AppletoN, C. J., Walton, Barrows, Virgin and Peters, JJ., concurred.