Order Number Eight Hundred of the Board of Supervisors of the City and County of San Francisco, which was afterwards ratified by the Act of the Legislature of March 27th, 1868 (Stats. 1867-8, p, 379), prescribed as one of the conditions on which any person should be entitled to the benefit of the Act of Congress of March 8th, 1866 (14 Stats, at Large, p. 4), the payment by the claimant of certain taxes and assessments on the lands claimed. But no provision was made for a conveyance to the claimant of the legal title in such form that it could be made a matter of record. The Act of March 14th, 1870 (Stats. 1869-70, p. 353), was intended to remedy this defect; and prescribed the method of *60proceeding, by which the claimant may obtain a conveyance in due form, from the city and county.
By the terms of the Act, the claimant is required to present to the Board of Supervisors a petition stating, amongst other matters, that he has paid to the Tax Collector the taxes and assessments on the land already referred to, and if the Board, on hearing the petition and proofs, is satisfied that the claimant is entitled to the land, it shall enter an order awarding it to him. The Board is then to publish a notice of the award; after the due publication of which the Mayor is authorized to execute a conveyance to the claimant; “provided however, that in case a suit shall be pending between the petitioner and some third person, involving the right of possession of the tract, or some portion thereof petitioned for, and such third person shall file with the Clerk of the Board of Supervisors a copy of the complaint filed in said action before the deed shall have been executed and delivered to the petitioner, and also competent proof that such third person, or the person through whom they claim or derive possession, has paid the taxes and assessments mentioned in the first section of this Act; then, and in that case, the deed shall be withheld until such suit shall be finally determined, and there shall thereafter be executed a deed of conveyance of so much of the tract of land as shall be involved in the said suit to the party in whose favor the said suit shall be finally determined as aforesaid.”
It appears from the agreed statement of facts in this case, that on the 21st of April, 1870, Winters and others paid to the Tax Collector all the taxes and assessments on certain lands, in conformity with the foregoing requirements, and presented their petition in due form to the Board of Supervisors, asking that said lands be awarded to them; that the Board proceeded to act on the petition, and before a deed was executed and delivered to the petitioners the plaintiff in this action on the 6th day of May, 1870, paid to the Tax *61Collector, in due form, all the taxes and assessments on a portion of the same land, and took his receipt therefor; that the plaintiff thereupon filed with the Clerk of the Board a copy of the complaint in an action then pending, in which the present plaintiff was plaintiff and said Winters and others were defendants, involving the right of possession of said lands, and also filed competent proof that , he had paid the taxes as above stated, and protested against the execution of a conveyance to Winters and others; that in September, 1871, the plaintiffs presented a petition to the Board asking leave to withdraw the protest and proofs, and the moneys he had paid for taxes and assessments. The petition was referred to the Committee on Outside Lands, which made a report recommending that the prayer of the petition be granted, which report was approved and adopted, and thereupon the Clerk was directed to return to the plaintiff the protest and Tax Collector’s receipts, which was done. The plaintiff then offered to surrender the receipts to the Tax Collector, and informed him of the action of the Board, and demanded a return and repayment of the money paid by the plaintiff for taxes and assessements. This demand was refused, the Tax Collector, “claiming that he had a right to hold the said moneys both as against the said Board of Supervisors and the said Randall—that he was not subject to the Board of Supervisors in the premises.”
After the protest and proofs were withdrawn by the plaintiff, the Mayor conveyed the land to Winters and others, and this action is brought, to recover from the Tax Collector the moneys paid to him by the plaintiff for taxes and assessments.
A judgment was entered for the plaintiff, from which the defendant appeals.
It is very evident that neither the Board of Supervisors nor the Legislature contemplated the collection of the taxes and assessments twice on the same land; and it is equally *62clear that they were intended to be paid by the person or his predecessor in interest who was in possession March 8th, 1866, or had been wrongfully deprived of the possession and was entitled to recover it. (Dupont v. Barton, 45 Cal. 446.) The proviso in the third section of the Act of March 14th, 1870, which we have quoted, was intended to cover a case in which there was a pending controversy in the Courts in respect to the right of possession, and makes it the duty of the Supervisors to award the title in favor of the successful party to the action.
But, inasmuch as it was doubtful which of them would ultimately prevail, and as the taxes and assessments would be rightfully due from the successful party, and not from his adversary, the statute provides that each of them shall pay the taxes and assessments pending' the litigation, in order that the title may be awarded to the proper party when the litigation is ended. Practically it is a mere deposit of the taxes and assessment by each to await the result of the controversy in the Courts, and though it is not expressly provided that the unsuccessful party may withdraw his deposit, we have not the least doubt that such was the intention of the Legislature. It could not have been intended that the taxes and assessments should be twice paid, as we think is perfectly apparent from the whole scope and spirit of the Act.
When it appeared, from the record of the proceedings of the Board, that the controversy was ended, the unsuccessful party was entitled to withdraw his deposit. If the consent of the Board was necessary before he could withdraw the -money, the plaintiff in this case obtained it, His petition to that effect was granted, and the Clerk was directed to return his papers, including the Tax Collector’s receipts.
This was a sufficient authority to the defendant to refund the money, and would have protected him from further responsibility.
*63The rule that voluntary payments cannot be recovered back has no application to the case, nor is there any force in the argument that the action should have been brought against the city and county instead of the Tax Collector. The money has never been in the treasury of the city and county; and if it was incumbent on the Tax Collector to place it there, he has not done so; and if it be assumed that it was his duty to pay it into the treasury—a point on which we express no opinion—he is nevertheless responsible to the rightful owner, so long as he improperly retains the money in his hands. He will not be allowed to set up that which would be a breach of his official duty as a defense against an action by the rightful owner of the fund.
Judgment affirmed.