The opinion of the court was delivered by
Ross, J.It is found that the grand list of the plaintiff town for 1872 was not sworn to by the listers. This invalidate^ that list for the purposes of taxation. All taxes assessed thereon while it remained in that condition, were invalid, and their collection could not be enforced by law. If paid under protest, the tax-payers could recover them back from the town. Houghton v. Hall, 47 Vt. 333. The act of the Legislature, purporting to legalize that grand list, need not be considered in disposing of the questions which arise in this case, inasmuch as, if it should .be conceded that the act rendered the grand list legal and valid from and after its passage, it could not affect the validity of the tax which had been assessed on that list while it was illegal and invalid.
The receipt given by the collector, Smith, to the town authorities, is not to be construed to import an absolute agreement on his part to collect and pay over to the proper treasurers therein named, *653the amount of the rate-bills so received, whether the taxes were legal or illegal, collectible or uncollectible. There was an implied agreement on the part of the town that taxes so assessed and receipted for were valid and collectible. The obligation and liability of the collector is not particularly enlarged by giving the receipt. By receiving the rate-bills and warrants, the collector impliedly agreed to collect and pay over the taxes according to the directions accompanying each rate-bill and warrant. There is always attached to this agreement of the collector to collect and pay over taxes, an implied condition that he will do so, provided the tax is legal and collectible. A collector is, neither by his receipt as ordinarily given, nor by the implied agreement arising from his receiving the rate-bill and warrant, bound to do an impossible nor illegal act. Hence, the taxes assessed on the grand list of 1872, and receipted for by the collector, being illegal and uncollectible, neither the collector nor his sureties on the bond, can be held liable for so much of said taxes as remain uncollected. The County Court, therefore, erred in holding the defendants liable for these uncollected taxes, and the judgment must be reversed for this reason alone.
The consideration of the legality of the warrant attached to the town tax, is unimportant. Although the taxes assessed on that list were illegal, and their collection could not be enforced, the tax-payers could waive the defect, and did so, so far as they voluntarily paid said taxes to the collector. All taxes thus paid to him, he received in the discharge of his duties as collector, and in such a manner that the money thus received became absolutely the money of the town, freed from the right of the tax-payer to recover it back. For all the money thus collected and not paid over, but misappropriated or misapplied, the defendants are liable on the bond in suit. It is found that the collector has paid over to the town treasurer all the money which he has collected on the tax, but that he directed $1000 of it to be applied on receipts held by the treasurer for taxes assessed for previous years. This was a misapplication of that sum so far as regards the collector. Whether the town treasurer at the time he so applied that sum was aware that it was a part of the tax of 1872, and that the *654collector was directing a misapplication of it, is not found. It may be, if the treasurer was made aware of that fact, that the sureties on the bond would not be bound by such misapplication, though' the collector would. We do not now decide that question, because the facts are not fully found in regard to it. The trial in the County Court appears to have proceeded on the basis that the collector was absolutely liable on his receipt, and that if the collector directed a misapplication of any of the money collected, his sureties would be bound by it, although the town treasurer knew of and consented to the misapplication. The town has the $1000, and if it is to be applied on this receipt, then there is no liability on the bond by the sureties or collector, as that sum should be so applied at the time it was received, so that the town would not be entitled to interest on it. If the application of that flUOO by the collector, under the circumstances, was a misapplication of that sum, binding on the collector’s sureties on his bond, then the town is entitled to interest on it from the time of the misappropriation by the collector. As the facts found are insufficient'to enable- this court to determine whether that application by the collector was in fact binding on his sureties on the bond or not, though the trial was by the court, the case must be remanded.
Judgment reversed, and cauSe remanded.