I do not concur in the foregoing opinion. The payment of real estate taxes for the purpose of avoiding a sale is held ordinarily to be a voluntary payment, for the reason that, even though the proceeding ripen into a tax deed, such deed may be set aside where the tax is void, or the sale may be removed as a cloud on the tax-payer's title. (Swanston v. Ijams, 63 Ill. 165; Falls v. City of Cairo, 58 id. 403; Stover v. Mitchell, 45 id. 213; Elston v. City of Chicago, 40 id. 514; Bradford v.City of Chicago, 25 id. 411.) Where, however, it is alleged in the declaration, as in this case, that a trust deed exists, by the terms of which the premises may be subjected to foreclosure proceedings if the property is allowed to go to sale for taxes, an entirely new and separate element of duress appears. Payment under such compulsion presents a situation not within the rule applied by the opinion and the cases cited in support thereof; nor is it within the reason for the rule, which is, as above noted, that property sold for a void tax may be recovered as against the holder of a tax deed issued on such sale. Such reasoning cannot be said to apply to a case where failure to pay the sum demanded involves a default of a condition in a trust deed or mortgage on the premises. The land owner by such default is subjected to the danger of loss in defending such foreclosure and loss of the land by such proceeding.
The rule is, that to render a payment compulsory such pressure must be brought to bear upon the person paying as *Page 335 to interfere in some way with the free enjoyment of his rights of person or property. (Falls v. City of Cairo, supra; Stover v. Mitchell, supra; Bradford v. City of Chicago, supra.) Compulsory payment is a question of fact. Neither the character of the payment demanded nor the person or agency making the demand is of consequence in determining whether the payment was, in fact, compulsory. It is well settled in this State that where one, to prevent injury to his person, business or property, is compelled to make payment of money which the party demanding has no right to receive, such payment is, in law, made under duress and may be recovered from the party receiving it. (Cook County v. Fairbank, 222 Ill. 578; City of Chicago v.Northwestern Mutual Life Ins. Co. 218 id. 40; State v. Nelson,41 Minn. 25.) In Cook County v. Fairbank, supra, this court approved the following reasoning of the Supreme Court of Minnesota in State v. Nelson, supra: "Nor is it necessary, in order to constitute compulsory as distinguished from voluntary payment, that the unlawful demand be made by an officer who is prepared to enforce it by process. There may be that kind and degree of necessity or coercion which justifies, and virtually requires, payment to be made of the illegal demands of a private person who has it in his power to seriously prejudice the property rights of another and to impose upon the latter the risk of suffering great loss if the demand be not complied with." Nor is it the rule, as the opinion seems to hold, that the person protesting must disclose to the one demanding payment the basis of his protest. His right to recover is dependent on the fact of duress and not on giving notice of the basis of his claim for relief from payment.
While, in cases where the only consequence of failure to pay a void real estate tax is a sale of the property, from which it could later be relieved, it is held that such protested payment is not made under duress, no case, so far as I am informed, holds that proof of risk of damage to the tax-payer *Page 336 or loss of his property by foreclosure of a lien does not constitute proof of duress. On the contrary, it seems quite clear that it does show duress. The rule applied in the opinion ought not be extended to a case such as is here averred in the declaration. The tax was void. The property had been duly exempted according to law. The fact that a tax deed issued on such sale might be set aside does not relieve the appellant from danger of injury to it through foreclosure proceedings. Duress was averred in the declaration and the demurrer thereto should have been overruled.
Mr. JUSTICE DUNCAN, also dissenting.