author: Spear, J.

text:
    McNeill, Assignee, v. Hagerty, Auditor. Goebel, Trustee, v. Schott, Treasurer.

      Taxation of assets of insolvent debtor.

    Personal property, whether in the form of moneys, bills receivable, bonds, certificates of stock, or otherwise, held by an assignee of an insolvent debtor whose estate is being settled in the probate court, is not subject to taxation, and it is not the duty of such assignee to make return of the assets of such estate to the county auditor for taxation.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Hamilton county.
    The case of McNeill, assignee, was commenced by the filing in the court of common pleas of Hamilton county, of a petition of which the following is a copy, viz.: .
    “The said plaintiff, Aaron McNeill, says that he is the assignee of The Metcalfe & Mackey Company, a corporation duly organized under the laws of Ohio, for manufacturing purposes, but which is now insolvent, and duly assigned all its property and assets to this plaintiff, in trust, for the benefit of creditors ; that the amount of property and assets in the hands of this plaintiff, as such assignee, on the 10th day of April, 1892, being the day preceding the second Monday in April in said year, was as follows :
    “Notes received for property sold by this plaintiff, as such assignee, amounting to $16,290; other notes and accounts, probably collectible, amounting’ to $2,620, making a total amount of notes and accounts in the hands of this plaintiff, as such assignee, as aforesaid, at the time aforesaid, of $18,910; this plaintiff also had in bank, to his credit, as such assignee, the sum of $7,000.90, making a total of cash, notes and accounts, comprising the entire assets in the hands of this plaintiff, as such assignee, of $25,910.90; that claims have been presented to this plaintiff, as such assignee, by creditors' of said The Metcalfe & Mackey Company, duly proven, aggregating the sum of $65,000; that the assets in the hands of this plaintiff, as such assignee, after paying’ the necessary costs and expenses of such assignment, will only pay a dividend of between thirty and thirty-five per cent upon the claims so proven and allowed, as valid claims, against the said assignor, by this plaintiff; that the said defendant, John Hagerty, as auditor of Hamilton county, Ohio, has duly made demand upon this plaintiff, as such assignee, to return said assets to him, as such auditor, to be placed upon the tax ■ duplicate of Hamilton county, Ohio, for taxation; that this plaintiff refused to make such return until said auditor threatened to take legal steps against this plaintiff, for failing to make such return, and thereupon this plaintiff made a statement and return to the said auditor of the assets in his hands, as such assignee, as hereinbefore set forth, and also for the amount of the claims proven against said The Metcalfe & Mackey Co., as hereinbefore set forth, and the said defendant as such auditor, threatens, and is about to place upon the tax duplicate of said county of Hamilton, the amount of said assets, for taxation, against this plaintiff, as such assignee, and unless restrained from so doing will place on the tax duplicate of said county the sum of $25,910.90; the taxes upon which will-be charged to this plaintiff, as such assignee.
    “The said plaintiff denies that the said assets in the hands of plaintiff, as such assignee, are, under the laws of Ohio, taxable, and denies the right of defendant to place the same upon the tax duplicate, as subject to taxation. The amount of said assets being far less than the amount of the liabilities of said assignor, and the said assets being in the hands of this plaintiff, as an officer of the probate court, subject to an order of distribution by said court, as soon as the same can be made, and to the extent of the value of the claims against said assignor of the creditors of said assignor are, under the laws of Ohio, required to be returned for taxation, by said creditors, and not by this plaintiff, -as such assignee, and to charge the taxes upon said assets against this plaintiff, as assignee, would be a great- and irreparable injury, for which this plaintiff has no adequate remedy at law.
    “Said plaintiff therefore prays that a temporary injunction may be allowed herein, enjoining and restraining the said defendant, as such auditor of Hamilton pounty, Ohio, from placing upon the tax duplicate the said assets in the hands of this plaintiff, as such assignee, the taxes upon which to be charged against this plaintiff, as such assignee, and that upon the final hearing hereof that said injunction may be made perpetual, and for such other and further relief as may be just and equitable.”
    In Goebel, trustee, against the treasurer, the property was described as moneys subject to draft, and as moneys invested in bonds, stocks, joint stock companies and otherwise. In other respects tbe petition was substantially the same in its allegations as the one copied above, and as to relief desired.
    A demurrer to the petition in each case was overruled by the court, and, defendant not desiring to plead, judgment allowing perpetual injunction was rendered against defendant, and for costs. On error to the circuit court the judgment in each case was reversed for error in overruling the demurrer, and giving judgment for plaintiff, that court holding that the common pleas erred in ruling that the money, and the bonds, certificates of stock, etc., were not subject to taxation as against the assignees. To reverse these judgments the present proceeding’s in error are prosecuted.

      Follett & Kelley, Goebel & Bettinger and Archer & McNeill, for plaintiffs in error.
    If the assignee is required to return the same for taxation the result would be double taxation, and, in the construction of statutes relating to taxation, courts will always avoid such construction as results in double taxation, if possible, and will adopt such construction only when the legislative intent is clear. Cooley, Taxn., 2d. ed., p. 225.
    The assignee was not bound to list the property for taxation. Lancaster School Directors v. Rathvon, 30 Pa. St., 533; Brooks v. Hartford, 61 Conn., 112.

      Spiegel, Bromwell & Foraker, for defendant in error.
    Investments in bonds, stocks, etc., cannot be off set by debts. Payne v. Watterson, 37 Ohio St., 121; Fayette County v. People's & D. Bank, 10 L. R. A., 196, 47 Ohio St., 503.
    As to the bills receivable and accounts receivable it may be admitted that there is some question as to whether they do not fall within the class of credits against which the debts of the estate may be deducted. Campbell v. Wiggins, 85 Tex., 424; Campbell v. Riviere (Tex.), May 11, 1893.
    The right of a state to collect its tax ag’ainst property in the hands of an assignee is sustained in two Illinois cases. Jack v. Weinnett, 115 Ill., 105; 55 Am. Rep. 129; Dunlap v. Gallatin County, 15 Ill., 7.
   Spear, J.

It was the judgment of the circuit court that, by force of the statutes relating to taxation, it became the duty of an assig-nee for the benefit of creditors, acting under our insolvent laws, to return for taxation all moneys, the proceeds of the sale of assets of the assignor, which he might, as such assignee, have on hand, or on deposit in bank, on the day preceding the second Monday of April, and all investments in bonds, stocks, joint stock companies,- or otherwise, held by him as assignee, which, under the law, would be taxable if held by an individual, resident of the state.

That court was further of opinion that from the value of such property so to be returned the assignee could not legally deduct the sum. of the legal bona fide debts owing by his assignor at the time of making such return.

The reasoning in support of these conclusions is, in substance, that it was the purpose of the statute, enacted conformably with section 2 of article 12, of the constitution, that the assignee should represent the estate of his assignor, and that the return for taxation should be made by the assignee substantially in the same manner as if the property still stood as that of the assignor; and that this purpose is expressed by the statute itself, section 2731, that ‘ ‘ all property whether real or personal in this state, and whether belonging to individuals or corporations; and all moneys, credits, etc., * * * of persons residing in this state, shall be subject to taxation, except only such as may be expressly exempted therefrom. ” No exemption existing in favor of property so held, it must be regarded as included within the language quoted. Although the statute does not seem to make taxes on personal property a lien thereon, yet it does provide that “all personal property subject to taxation shall be liable to be seized and sold for taxes.” And if the tax levied by reason of the return made by the assignee is paid by him, he could, under the provisions of section 6357, be allowed for such payment as part of the legitimate expenses of the trust; and, in default of payment, that distraint might be made by the tax collector by force of the authority above quoted. The mere fact that the assignee or trustee of an insolvent estate is not specially mentioned in section 2734, which points out who shall list personal property, is not a legislative declaration that such trustee is not bound to return personal property in his hands for taxation, because the statute says it shall be returned by the trustee for every person for whose benefit property is held in trust, and this is not limited to cases where the trustee has the assets invested in some permanent form from which income or interest may be derived. The moneys so on hand receive the protection of the state and ought to pay their proportion of the taxes levied to furnish that protection. The fund does not belong to the individual creditors until the estate is settled and order of distribution made; nor does the mere fact of insolvency of the assignor put the fund in any different position with respect to the claims of creditors. If the fund represented credits, then debts might be deducted, and as the latter exceed the former there would be nothing to return; but the fund on hand is not a credit. Nor are the investments in bonds, stocks, etc., credits. Large amounts, in the aggregate, are at all times in the hands of assignees, and the legislature could not have contemplated the escape of so vast an amount of property from the burden of taxation; and, unless taxed in the hands of assignees, the property would escape, because, even if treated as belonging to the creditors, still it would not be practicable for even an honest creditor to make his return on such claims because he would have no means of knowing their value. These conclusions are supported directly by the opinion of the very able court whose judgement is here brought in review (7 O. C. C. R., 388), and by Dunlap v. Gallatin County, 15 Ill., 7. And as bearing upon the question, the following citations are given: Campbell v. Wiggins, 85 Texas, 424; Campbell v. Riviere, 22 S. W., 993; Jack v. Weiennett, 115 Ill., 105.

While recognizing the cogency of the reasoning, we have been unable to agree with this view of the law as bearing upon these eases.

Por the purpose of the inquiry it may be assumed that the money in bank is as much subject to taxation as though it were in the personal possession of the assignee. Whether such of the assets as are in the form of stocks or bonds are credits within the meaning of the decisions of this court giving construction to section 2730, Revised Statutes, we do not regard it necessary to discuss.

It may be further assumed that there is no specific exemption of property in the hands of assignees from taxation, either in the statute, or in the constitution.

It is to be noted that the question is not whether the assets of the insolvent may be subjected to payment of taxes owing by him. But the question is whether or not the fund itself in the hands of the assignee is subject to taxation.

The constitutional requirement (section 2, of article (12), is that: “Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks,” etc., and the statute relating to the subject is embraced in section 2730, Revised Statutes, and following.

Looking at these sections alone, it is, we concede, natural to conclude that a duty would devolve on assignees to return for taxation property in their hands, except perhaps that which might be in the form strictly of credits. But the purpose of the legislature is to be arrived at by a consideration of all the legislation bearing upon the subject, and not by a consideration of a-portion only.

Our statutes, sections 6335 to 6358, place the disposition of insolvent estates within the control of the probate court, and direct the duties of the assignee, and the procedure in the administration of the trust. ' When once acquired, the jurisdiction is exclusive. Sayler v. Simpson, 45 Ohio St., 144; Clapp v. Banking Co., 50 Ohio St., 528. There is thus provided a convenient, expeditious and inexpensive tribunal for the distribution of the assets of insolvents ratably among creditors. Necessarily that court, by operation of law, upon the filing' of the instrument of assignment, acquires control of all the property and estate embraced therein, subject, of course, to all liens and just claims then existing upon the property, whether by the state or by creditors. Though the legal title is in the assignee, after his qualification, it is so only because he has qualified, and because his appointment has received the sanction of the court, and he, as well 'as all persons claiming an interest in or upon the fund, are subject to the summary jurisdiction of the court. The person named by the insolvent assign- or may not qualify; or having qualified, he may be removed and another, called a trustee, appointed ; and, in either ease, the legal title to the property . follows the order of the court, and is lodged in such person or persons as may, by the court’s order, be given its actual custody.

It-is made the duty of the assignee to convert the assigned property into money, and, at the expiration of eight months, file an account, as a step preliminary k> an order distributing the money to creditors, which is to be done without unnecessary delay, according to their respective claims and rights. The effect of the assignment is to devote the property absolutely to the satisfaction of the debts of the assignor, just as they existed at the time of the assignment, subject, necessarily, to be depleted by the expenses of the trust.

The assignee has no power to create any new lien, nor to divert the property from the purpose contemplated by the law.

Provision is made for the payment by the assignee of preferred liens upon the property, if any exist, and for the payment of taxes in preference to any other claim against the assignor. The language in this regard is significant: All taxes of every description assessed against the assignor upon any personal property held by him before his assignment, shall be paid by the assignee or trustee, out of' the proceeds of the property assigned in preference to any other claims against the assignor.” Nowhere is it in terms provided that the assignee shall list the property for taxation, nor is provision made for the payment of any taxes save those existing against the assignor. This omission seems to us significant when contrasted with the duty enjoined by other sections of the statute upon other trustees. By section 2734, returns must be made of the property of every ward by his guardian, “of every estate of a deceased person, by his executor or administrator; of corporations whose assets are in the hands of receivers, by such receivers. ” It is made the duty of every executor or administrator “to apply the assets to the payment of debts in the following order: * * Fourth, public rates and taxes, and sums due the state for duties on sales at auction.” For such payments of taxes the administrator or executor is allowed in the settlement of his accounts. The provision relating to the payment of taxes by assignees is that ‘ ‘ all taxes of every description assessed against the assignor upon any personal property held by him before his assignment, shall be paid by the assignee,” etc., and if we apply the familiar rule expressio unius exclusio alteriua, it would seem that those are the only taxes, payment of which may properly be included in his accounts.

The omissions referred to would seem also to suggest a distinction between the relation of an assignee to creditors of. the assignor and to the trust property held by him, and the relation sustained-by a guardian, an administrator, or a receiver of a corporation, to beneficiaries interested in the trust property, as well as to the property itself; and, we think a distinction is observable between the relation sustained by creditors of an insolvent assignor to the assigned property, and that of beneficiaries of property in charge of the other functionaries above named.

The relation of guardian to the ward is, while it lasts, a permanent one. He manages the estate for the benefit of the ward, and it is his duty to so manage as to make profit and interest for the ward. As to the property, the ward has no power over it, nor duty respecting it.

As to administrators, it is true that property in their hands is subject to the payment of the debts of the decedent, and that creditors are expected to list their claims as credits, and often it happens that the debts consume the entire assets. But usually there is in fact, as well as in contemplation, a residue going to widows and legatees or heirs, and they are not required to list for taxation any amount until it is actually received.

The duty enjoined upon receivers to list is confined to receivers of corporations. Such receivers are usually empowered to prosecute the business for the benefit of the parties interested. This carries the idea of a continuance of the business as by the corporation, and its eventual surrender to the- corporation again. Receivers for partnerships, concerns whose affairs are to be wound up and dissolved, are not named. Certainly this omission is also significant. Such receivers perform duties similar, in many ways, to the duties of assignees of insolvents, and had it been intended to enjoin upon them the duty of listing property in their hands for taxation, one would suppose that the discrimination found in the statute would not have been made.

It is, however, urged that the clause of section 2734 which requires that the property of every person for whose benefit property is held in trust must be listed by the trustee, furnishes authority for requiring such listing by an assignee of an insolvent. It is true that, in a general, broad sense, an assignee is a trustee, and, in other sections of the Revised Statutes, the terms “assignee” and “trustee” are coupled, as though the words mean the same.

But it does not follow that the term “trustee” is used in this broad.sense in this clause of the statute, for equally, in the same sense, is a guardian or administrator, or a receiver, a trustee, and if the term had been intended in so broad a sense as to include assignees of insolvents, it would, also embrace the other trustees named, and the special provisions regarding them would be superfluous. We think the purpose of this clause is fully satisfied by confining its application to that large class of trusts where title and possession are placed in one for the benefit of others, in some permanent form, and from which, in general, interest income or profit, is expected to be derived.

That portion, of the estate which is described, in the petition as being bonds and stocks can, we think, in fairness, hardly be included under the head of “investments in bonds, stocks,” etc., because, as said by McIlvaine, J., in Payne v. Watterson, 37 Ohio St., 125, “the common understanding is, that money invested is withdrawn from ordinary trade and active business and placed at interest for the sake of interest.” These securities are not held by the assignee as an investment for the sake of interest, but are in that form for temporary purposes only, being held subject to the order of the probate court, and may be required to be converted into money, and that money distributed at any time.

To hold that property in possession of an assignee, as in these cases, must be listed and taxes paid on it is, in effect, to hold that the creditors must be taxed twice on the same value. While the legal title to the property is in the assignee, it is so only for the purpose of facilitating the settlement of the trust. Equitably, the property is vested in the creditors. Every dollar paid in taxes by the assignee reduces by that amount the dividend which the creditors' will receive. That it is the duty of creditors, under the law, to list their claims as creditors, admits, we suppose of no doubt, and, we submit, that it is no answer to say that creditors cannot know the value of such credits. Such condition attaches to a very large proportion of credits held by the commercial, and especially the mercantile, world. Nor, is it any answer to say that, as matter of fact, they will not list the claims. No good reason why they should not exist, unless it would be furnished by arequirement compelling the assignee to do so. A statutory construction which, to use the languageof Judge Cooley, “requires that one person, or any one subject of taxation, shall directty contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once,” is to be avoided, because, in the judgment of that author, it is duplicate taxation, and is not permissible under a constitution which requires equality and uniformity. This proposition seems to be applicable to the present eases, as our constitution requires both equality and uniformity. It is not necessary to hold that the legislature might not include assignees in the class of trustees who are required to list property in their hands, even though duplicate taxation results; it is enough, for the disposition of the present cases, if the purpose to do so has not been expressed.

The assignee is, in every essential particular, an officer of court. The fund is in his hands as such, and he is bound to do with it just what the court directs. The fund, therefore, is really in the custody of the court, and, as before stated, the beneficial interest is in the creditors. They cannot, 'it is true, receive their own at once, but that is because it requires some time to reduce the assets to money, and for the adjustment of the debts and claims. To require the listing of any of the property thus held by the assignee, and the payment of taxes on it, would manifestly interfere with the orderly execution of the trust. And if, as is claimed in argument, in case payment of taxes so levied is not voluntarily made by the assignee, distraint might be resorted to by the tax collector, and the property seized and taken forcibly from the possession of the assignee, thus taking it from the control of the court, so much the moré apparent is it that the construction claimed by the defendant in error is inadmissible because it would result in unreasonable interference with the rightful exercise of authority by the probate court. It cannot have been the purpose of the legislature, by one statute to lodge exclusive jurisdiction and dominion over property in a court, and, by another statute, authorize a taxing officer to cast contempt upon the court by ousting its jurisdiction, and overriding its powers.

If the clause of section 2734, relating to the listing of trust property by trustees, requires a listing of property by the assignee of an insolvent whose estate is being settled in the probate court, no reason can be given why the same duty would not devolve upon receivers of partnerships, clerks of courts, sheriffs or master commissioners, as to funds which may chance to be in tlieir hands on the day preceding the second Monday of April, subject to payment upon order of court. To state such a proposition is to refute it. And this because it is unreasonable to assume that, in the absence of express authority, the duty to list embraces property which the law has taken into its own hands simply to collect and distribute, and of which it has designated a temporary trustee for the better accomplishment of its work.

Our conclusion is that neither by the constitution, nor by the statute, when construction is given to all the sections bearing upon the subject, is it made the duty of an assignee of an insolvent whose estate is being settled in the probate court, to list the property so held by him for taxation.

Authorities bearing one way or the other upon the question are not abundant. But the conclusions here announced are fully supported by decisions in two well-considered cases, one by the Supreme Court of Pennsylvania and one by the Supreme Court of Connecticut. School Directors v. Rathvon, 30 Pa. St., 533; Brooks v. Hartford, 61 Conn., 112. The Connecticut case is especially apt because their statute designating property subject to taxation, and the duty of trustees regarding the same, appears to be substantially similar to our own upon those subjects.

The judgments of the circuit court toill be reversed and those of the common pleas affi/nned.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Insurance Company v. Hull.

      Contracts — Illegal consideration — Recission—Restoration of benefits — When action on insurance policy may be maintained.

    1. A contract, the consideration of which, in whole or in part, is the suppression of a criminal prosecution, is without any legal efficacy, either as a cause of action or as a defense to an action not founded on or arising out of the agreement.
    2. The rule that a party who would rescind a contract must restore what he has received under it, does not apply to contracts founded on an illegal consideration, and void for that reason.
    3. In certain cases where applicable, the rule is satisfied if the judgment sought will substantially restore tne party to the situation he was in when the agreement was made; as, when money paid by him is less than he justly owed the other party, and the same is credited, and the action brought for the balance.
    4. Where a person is induced by threats of a groundless prosecution to accept a less sum than is justly owing to him on a policy of fire insurance, in satisfaction of liis claim, and to surrender the same, he may maintain an action on the policy for the balance due, without returning or tendering back the money so received.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Mahoning county.
    The Springfield Fire & Marine Insurance Company, of Springfield, Massachusetts, on the 1st day of September, 1883, issued a policy to Julia M. Hull, insuring her against loss or damages by fire, to the amount of twelve hundred dollars, on her dwelling-house in Youngstown, and three hundred dollars on furniture and other articles therein, for the period of three years; which policy, at its expiration, was renewed and extended’ for another like period. In October, 1887, the property was damaged by fire to the amount of $315.00, which was paid by the company, and the policy continued in force for the balance, viz:' $1,185.00. Afterward, on the 27th day of December, 1887, while the policy was in force, the property was totally destroyed by fire; and the action below was brought to recover the loss. The petition, to which a copy of the policy is attached, alleges the foregoing facts, and also the performance by the plaintiff of the conditions of the policy on her part to be performed, the proof of the loss in due time, and the payment thereon .of $575.00, leaving a balance of $610.00, for which, with interest, judgment is claimed. The answer denies certain allegations of the petition, and avers as a further defense, that by the terms of the policy the loss was not payable until sixty days after the receipt by the defendant of the proof of the same, and that the next day after the fire, the parties came to a compromise and settlement, which was reduced to writing and duly signed, by which the plaintiff ag-reed to accept the immediate payment of $575.00, in satisfaction of her claim; which sum the, defendant then paid by draft, and the plaintiff surrendered the policy and thereafter collected the draft, and has not offered to repay the amount to the defendant. The reply to that defense alleges that on the day after the property was burned, the plaintiff met the defendant’s ag-ent, at his request, in his room at a hotel where he was stopping, ‘ ‘and while there alone with him, the said ageiit knowing-ly, falsely charged and accused her of being guilty of the crime of setting fire to and burning her own house and furniture, and then and there told her that he had' evidence that would sustain said charge, and said to her that by reason of the proof which he had knowledge of, she could not live in the city of Youngstown, and the company would not permit her to remain in said city, but would send her to the penitentiary for said crime; and said agent then and there presented to her for signature, a paper writing which may have been a receipt, and said to her that unless she then signed said paper writing that she could not live in the city of Youngstown, and would have to leave said city, and that said company would send her to the penitentiary; all of which statements were made by said agent knowingly, falsely, -arid fraudulently, for the purpose of intimidating- and threatening her, and ■ working upon her feelings and fears, so as to coerce her, and place her under duress, and frighten her into sig-ning said paper writing. That she was then in infirm health, and weak and exhausted from the excitement occasioned by said fire, all of which was known and apparent to said agent, and of which he wrongfully, and with, fraudulent intent, took advantage, and reiterated and repeated said threatening statements until she was in such a state of mind and body that she was entirely incapable of knowing and understanding her situation, and she then said to said agent that she desired to consult her counsel before acting in the matter, and thereupon said agent reiterated said threatening statements, and others of a similar import and meaning, and told her that if she did not sign said paper immediately she would never get anything, and that she would have to leave the city of Youngstown and her family, and the company would prosecute her criminally on the charge of burning her house and furniture, and she would have to go to the penitentiary, '.but that all this could be avoided by signing said papers. And plaintiff says that in her said condition of mind, she was compelled to, and did sign some papers, but avers that her signature was obtained through force, duress and fraud, as hereinbefore set forth, and .that if any paper writing is in the possession of said defendant purporting to settle or compromise her said claim, as set forth in her said petition, the same was procured from her by means of the aforesaid fraudulent and criminal acts of said agent of defendant, perpetrated upon her while she was weak in mind and body, and laboring under severe mental strain and excitement, induced by the said agent for the purpose of coercing her into signing the same, and while she was incapable of understanding her rights in the premises, or the effect of her said acts; and that the same are fraudulent and void, and of no virtue or effect in law. ”
    The trial of the issues resulted in a verdict for the plaintiff, upon which judgment was rendered, and that judgment was affirmed by the circuit court. It is sought here to obtain the reversal of the judgments below, for error in the charge to the jury, and the refusal to give in charge instructions requested by the defendant, which will be noticed in the opinion.

      Hine & Clarke, and Thomas Bates, for plaintiff in error.
    Many things must combine in order to constitute fraud, not one of which is proven in this case. Not one single element necessary to prove fraud or duress is proven in this case. Ætna Ins. Co. v. Reed, 33 Ohio St., 283.
    Threats of criminal prosecution do not constitute duress. Moore v. Adams, 8 Ohio, 373; Ruquet v. Roll, 7 Ohio, 70; 37 Ohio St., 383.
    A party cannot rescind a contract of settlement or compromise and retain the consideration which has been paid for such compromise. Before Mrs. Hull could rescind that contract of compromise and settlement, she must put the other party in statu, quo. In other words, she must restore the company to exactly the position and condition it was in before the compromise was made. This is not only the law, but it is common sense and justice as well. Home Insurance Company v. Howard, 111 Ind., 545; Pangborn v. The Continental Insurance Company, 35 Northwestern Reporter, 814; Wilbur v. Flood, 16 Mich., 40; Jewett v. Petit, 4 Mich., 508; De Armand v. Phillips, Walk. Ch., 186; Galloway v. Holmes, 1 Doug. (Mich.), 330; Dunks v. Fuller, 32 Mich., 242; Martin v. Ash, 20 Mich., 166; Lumber Co. v. Bates, 31 Mich., 159; Railroad Co. v. Dunham, 30 Mich., 128; Crippen v. Hope, 38 Mich., 344; Gray v. St. John, 35 Ill., 222; Mann v. Stowell, 3 Chand., 243; McMichael v. Kilmer, 76 N. Y., 46; Brown et al. v. Hartford Fire Ins. Co., 117 Mass., 479; Evans v. Gale, 17 N. H., 575; Bisbee v. Ham, 47 Me., 543; Hogan v. Weyer, 5 Hill., 389; Degraw v. Elmore, 50 N. Y., 1; Bull v. Bull, 43 Ct., 465; Higham et al. v. Harris et al., 108 Ind., 246; Physio-Medical College v. Wilkinson, 9 North-Eastern Reporter, 167; Doane v. Lockwood, 4 North-Eastern Reporter, 500; Turner v. Cruzen, 30 North-Eastern Reporter, 483; Potter v. Taggart, 16 North-Eastern Reporter, 632; Bank of Barnesville v. Yocum, 9 North-Eastern Reporter, 84; Wells v. Neff, 12 Pacific Reporter, 84; Gates v. McLean, 11 Pacific Reporter, 489; Benton v. Marshall, 1 Sorith-Western Reporter, 201; Dean v. Robertson, 1 Southern Reporter, 159.

      R. B. Murray, T. W. Sanderson and C. R. Truesdale, for defendant in error.
    The parties only seriously controverted the question of fraud, coercion, and duress, and the question of compounding- . the crime of arson, which the defendant below, at the time of the settlement, charged her with committing. The only witness to the means and method of bringing about the alleged settlement was the plaintiff herself, the defendant not in any manner undertaking to contradict her statements by any witness.
    We say that under the undisputed evidence in this case that the charge of the court was eminently proper and correct, and really put to the jury the only question of fact which was the subject of contention upon the trial. Wharton on Contracts, sec. 540; Id. 353; 2 Bac. Ab. 156, 7; James
      v. Roberts, 18 Ohio, 562; Foshay v. Ferguson, 5 Hill, 154; Taylor v. Jacques, 106 Mass., 291.
    It was also urged in this case that the complainant was precluded from relief by the fact that she was a party to the illegal contract, and that the rule “in pari delicto potio est conditio defendáis, ” was applicable. This is not so. Roberts v. James, supra; Williams v. Englebracht, 37 Ohio St., 386.
    But the plaintiff in error says, that before Mrs. Hull could rescind that contract of compromise and settlement, she must put the other party in statu quo; in other words, she must restore the company to exactly the position and condition it was in before the compromise was made.
    Here again the plaintiff in error has offered for the consideration of the court, a mass of authoriities which are not applicable to the ease at bar, and are misunderstood by the plaintiff in error. Each ease treats of a contract which is “voidable, ” not “void.” The writer, after a careful examination of each case, fails to find a single case referred to in plaintiff’s brief, except cases where it is sought to avoid a contract on the ground of misrepresentation and concealment. Not a single ease has in it the element of a contract to suppress a criminal prosecution.
    Now, the contract of compromise which the plaintiff in error is seeking to maintain, is now, and always was of that class of contracts, denominated in law as “void”' and not “voidable.” Wharton on Contracts, sec. 1, 28; Pollock on Contracts, 3d Ed., 7.
   Williams, J.

The recora discloses that on the trial the plaintiff gave evidence sustaining the allegations of her petition, and the only defense attempted to be maintained was that which plead the compromise, in support of which, and of the averments of the reply thereto, the parties respectively offered their proof. The court instructed the jury, in substance, that if the parties made a compromise and settlement of the plaintiff’s loss, by which she accepted five hundred and seventy-five dollars in satisfaction of her claim, and a promise that she should not be prosecuted on the charge of burning the property formed no part of the consideration, she could not recover; but if such promise was a part of the consideration, the contract was void, and constituted no defense to the action. To the last proposition, the defendant excepted; and, whether that part of the charge was erroneous, or not, is one of the questions in the case.

It is not disputed that a contract founded upon a consideration which, in whole, or in part is illegal, immoral, or against public policy is void, and will not be enforced at the instance of any party to it; but, it is contended that rule cannot avail the plaintiff, because the contract of compromise was executed by the payment of the sum agreed upon, and the surrender of the policy, and was, therefore, notwithstanding- its infirmity, a bar to the action. We think not. The rule is, that the court will not assist either party to such a contract to enforce it against the other, or to recover what he has parted with under the contract; and the test in determining when it applies to a plaintiff, is whether his cause of action is founded on, or arises out of the illegal agreement. If the action is of that character, whether it appear from his own stating, or is shown by way of defense, he must fail; otherwise, not. The plaintiff’s action was upon the policy of insurance, which, it was admitted was issued by the defendant, and was without taint or blemish. The destruction of the property insured was total; so that, under our statute, the amount owing to the plaintiff was fixed and certain, being’ the amount for which the policy was in force when the fire occurred. Revised Statutes, section 3643. Insurance Company v. Leslie, 47 Ohio St., 409. The petition, to which a copy of the policy is attached, contains all the allegations necessary to entitle the plaintiff to recover upon it, and on proof of those that were denied, to the satisfaction of the jury, the plaintiff was entitled to a verdict, unless the alleged compromise ag’reement set up in the answer should be established and enforced against her. Her cause of action was not founded on, nor did it arise out of that agreement. She predicated no claim upon it, nor, in any way sought its enforcement, or the recovery of anything she had parted with under it. On the contrary, the defendant set it up by way of defense, and sought to make it effectual against the plaintiff, who controverted its validity on the ground that it was illegal, and had been obtained by duress. We see no reason why the plaintiff might not pursue that course. She was not obliged to first bring an action to set aside the agreement, and compel the return of the policy wrongfully obtained from her, or set out in her petition the facts contained in the answer and reply, they were not a part of her ease. The ag’reement was a matter of defense which might, or might not be pleaded; and the necessity of pleading it, as ’well as the burden of proving it, was on the defendant. Larimore v. Wells, adm'r, 29 Ohio St., 13. The plaintiff was not required to anticipate the defense, and assail the agreement, in the petition; and when set up in the answer, it was none the less open to attack by her, than it would have been if made the foundation of an action against her; nor, when attacked, can it be more effective in the one case than in the other. The party asserting it in either way, as the ground of a right which he is seeking to enforce, must be defeated, because of its illegal character. “An instrument may be shown to be void and without legal existence or efficacy, as for want of consideration, or for fraud, or duress, or incapacity of the parties, or any illegality in the agreement.” 2 Parsons Contr. (Eighth Ed.), 670. And that is so, whether the instrument be pleaded as a cause of action, or as a defense to an action not arising out of the agreement. In the cases of Roll v. Raguet, 4 Ohio, 400, and 7 Ohio, 76, the actions were upon instruments given for an unlawful purpose; in the former case, on promissory notes, and in the latter, on a mortgage executed to secure the nptes, which were given for'the sole consideration that a criminal prosecution against one of the makers should be suppressed. In each of the cases the plaintiff failed because his cause of action was founded upon the illegal contract. The plaintiff in the case of Moore v. Adams, 8 Ohio, 372, sought to have a deed executed by ‘ him, set aside on the ground that it was made in consideration that he should not be prosecuted for an alleged crime, of which the grantee accused him. The illegal character of the agreement, and the plaintiff’s connection with it, were alleged in his bill, and constituted the only ground for the relief he prayed for; and it was held that no relief could be granted him-on. such a cause of action. Upon the same principle, the plaintiff, in Thomas, v. Cronise, 16 Ohio, 54, and in Kahn v. Walton, 46 Ohio St., 195, were denied the remedy sought in those cases. And in Hooker v. DePalos, 28 Ohio St., 251, which was an action to recover back money paid in part performance of an illegal agreement, the plaintiff was defeated on the same ground. In all of these cases, and others of like character, where the plaintiff failed to obtain the relief he desired, his cause of action was founded upon, or arose out of, the illegal transaction;-and in that important and decisive feature, the case before us is distinguished from them.

It was held in James v. Roberts, 18 Ohio, 548, that -a court of chancery will restrain the collection of a note and mortgage procured by threats of a groundless prosecution. The court, in distinguishing that case from Roll v. Raguet, supra, say, that in the latter: “Raguet agreed that he would not only not prosecute, but would use his influence to prevent a prosecution, and that he would not appear as a witness against the accused. ” The doctrine of the Roll case is recognized, but in holding that it did not apply to the James case, the court say : “That James was entirely innocent of the crime charged against him, and that was known to all parties concerned; that the charge was got up merely for the purpose of extorting money from him by operating upon his fears, and that fearing the consequence of the prosecution, notwithstanding his innocence, he executed the note and mortgage.” And further, that “a true public policy requires that all groundless prosecutions should, if possible, be prevented, and that every facility shall be afforded to the innocent to escape from such a calamity; and we think an innocent party may with great propriety, ask to be relieved from the consequences of a groundless charge. ” While this ease does not overrule that of Moore v. Adams, supra, or even refer to it, we regard it as containing important qualifications of the doctrine of that case, which are sustained by well considered adjudications elsewhére; among’ them, Heckman v. Swartz, 50 Wis., 267; Atkinson v. Denby, 6 H. & N., 778; 7 H. & N., 903; 30 L. J., 361; Hullhorst v. Scharner, 15 Neb., 57. A party, who in the free exercise of his faculties enters into an unlawful agreement, does not stand in precisely the same position as one who executes such a contract under duress. There is no contract without the consent of the parties to its terms, and there is no consent when the free agency of one party is overcome; and it can be of no practical consequence whether it be overcome through fear of loss of life, or of limb, or through fear of imprisonment. The latter may be as potent as either of the others, and with some individuals more so. Nor, can we think a sound rule requires that the threat of either, should, in all cases,' be such as would operate upon persons of ordinary firmness, and inspire in them a just fear. The question in each case must be whether the person threatened was deprived of his freedom of will; and that is a question of fact, in the determination of which regard should be had to the nature of the threats, the sex, age, and condition of life of the party, and the attending circumstances. In the proper application of the rule to the case made , by the record before us, we are not prepared to say the jury was not authorized to find that the agreement relied on as a defense, was procured from the plaintiff by duress, and therefore void. In that event, she was not in pari delicto, and under the authority of James v. Roberts, supra, might, if necessary, have maintained an action to set it aside. But, as has already been shown, that was unnecessary; the plaintiff might, as she did, resist the agreement on the ground that it was illegal, when set up in defense to her action.

Another objection made to that part of the charge we have, been considering’ is, that it was misleading, in that it implied the plaintiff was guilty of arson, and in effect, required the jury to find in her favor notwithstanding she burned the property. The charge will not bear that construction. To render a contract void on the ground that its consideration was the suppression of a prosecution, the crime charged need not in fact have been committed. It was not pleaded as a defense, that the plaintiff burned the property, nor does that claim appear to have been made, in any way, on the trial. The fact that no such defense was made, may be reg’arded as an admission in the case that there was no foundation for it; and, though that may have inured to the plaintiff’s advantage, it is not probable the jury was misled, as counsel for plaintiff in error suppose. And again, it is said, there was no evidence in the case to which the charge was applicable. We have examined the evidence, and think it was sufficient to authorize the charg’e given.

The only other question deemed of sufficient importance to be noticed in the report, arises out of the refusal of the court to give to the jury an instruction requested by the defendant, the substance of which is, that the plaintiff could not recover because she had not paid or tendered back the money received under the alleged compromise agreement. It is contended that a party who would rescind a contract must restore to the other what has been received from him; and such is undoubtedly the general rule. It is not, however, without exceptions, one of which is found in the case of Bebout v. Bodle, 38 Ohio St., 500, in which this court held that “where a principal debtor, by falsely and fraudulently representing to the creditor that his surety has consented to an extension of time for payment, procures from the creditor an agreement for such extension in consideration that interest be paid, such agreement is, as to the creditor, fraudulent, and he may, upon discovery .of such fraud, even after the period of extension has expired, repudiate such agreement and sue upon the original contract without refunding or tendering back the interest paid under such invalid agreement.” In the opinion of the court by Longwobth, J., it is said: ‘ ‘It is further urged that in order to enable plaintiff to repudiate the contract she-was bound to refund to William the money paid as its consideration, or at least to tender it back. This cannot be true. This sum, which was the interest covering the period of extension, during which the principal remained actually unpaid, was due to the plaintiff from William, irrespective of the question whether the agreement was valid or invalid. We can see no reason why plaintiff should be compelled to pay to this defendant money which was her own in either event, and to which he could not, in any aspect of the case, be entitled.”

The principle of that case, applied to this one, rendered it unnecessary for the plaintiff to return to the defendant the $575, she had received, before commencing her action. The property insured having been totally destroyed, the sum due on the policy was, under the provisions of our statute heretofore referred to, as certainly fixed at the amount for which the policy was in force when the fire occurred, as if it had been evidenced by the company’s note; and she was, therefore, when she brought her action, entitled to receive from the defendant, in the absence of any valid defense, the sum of $1,185. No defense was made except that based on the alleged compromise, under which, it is conceded, she was entitled to the sum paid her; and with that defense determined in her favor, a much larger sum was justly due her, so that the sum paid was owing to her in any event, and no good reason appears why it should have been returned to the defendant. The plaintiff credited the amount on the policy and sued for the balance, thus giving the defendant the full benefit of it, which was equivalent to its restoration. Allerton v. Allerton, 50 N. Y., 670. Besides, the contract being void because resting upon an illegal consideration, its repudiation by one party does not give the other a right to have restored to him what he parted with under it; nor does the retaining by the party of what he has received, amount to a ratification of the contract by him. Such contracts, having no validity from the beginning’, are capable of receiving none by any ratification, however deliberately and formally made; for any attempted ratification must necessarily be as ineffectual as the original contract, because as illegal. The law does not recognize it to be the right of parties to contracts of that nature, to either have them enforced, or have a return of what has been parted with in their performance; it denies both; and hence, there can be no proper application in such cases, of the rules which govern the rescission of contracts. There • is nothing to rescind. The cases from which counsel for plaintiff in error have extensively quoted, are those in which it appears the contract was rescinded, or a rescission sought, on the ground of fraud, and they have no bearing on this case. We ñnd no error in the record, and accordingly the

Judgment is affirmed.


author: Minshall, J.

text:
    Trustees v. Thoman et al.

      Recovery — Effect of Possession — Illegal taxes — Involuntary payment of — Remedy—What is not involuntary payment oj — Delinquent lands — Sale—How redeemed.

    1. It is a general principle in the law of recovery that a party’s possession of a thing cannot be disturbed by one who cannot show a better right to it. Therefore, irrespective of his own title, a party to a suit has the right to object to an order requiring him to pay money in his possession, or that of his agent, to one who shows no better title to it.
    . 2. A suit cannot be maintained by one taxpayer on behalf of himself and others, to recover back taxes, alleged to have been illegally assessed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action on his own behalf.
    3. A taxpayer commenced a suit on behalf of himself and other taxpayers against the county treasurer to restrain the collection of a tax alleged to have been illegally levied, and obtained a temporary order restraining the collection of the tax until the final hearing on the merits. Subsequently he filed a supplemental petition, alleging that since the commencement of the suit — the injunction being in full force and unmodified — all had been involuntarily compelled to pay the tax by the refusal of the treasurer to receive the taxes due from them, though tendered, unless they paid the taxes that had been enjoined, and threatened to return their lands as delinquent and cause them to be sold, unless they did so: ' Held, That a payment made under such circumstances is not an involuntary one, and a recovery back cannot be had.
    4. Where the lands of a person have been sold at delinquent tax sale, he must, in the first instance, apply to the auditor of the county for their redemption, under the provisions of the statute in such case made and provided. Section 2889, et seq.

    (Decided April 24, 1894.)
    Error to the Circuit Court of Crawford county.
    Formerly the territory, now included in Jackson and Jefferson townships "of. Crawford county, formed one township by the name-of Jackson. In 1872, the township was divided so 'as to form two new ones, one retaining the name oUJackson, and the other was called Jefferson. At tho time of the division, the old one was indebted in .the sum of $800 on bonds that had been issued foi the purpose of paying bounties to veteran volunteers, that had been credited to the township. Subsequently the township that retained the name of Jaókson paid off these bonds, the last one having been paid in 1885. Whereupon the trustees of t¿\is township, claiming to act under the provisions otf § 1386, Revised Statutes, made a levy upon the tax-, able property of Jefferson township to compensate their township for the payment of the portion which they claimed was due it from Jefferson, the amount. levied being $283.38, or one-third of the sum paid by their township. The levy having been certified to the county auditor, and by him placed on the duplicate against the taxpayers of Jefferson, Henry Thoman for himself and two hundred and thirty-eight taxpayers of that township, commenced a suit in the common pleas court against Shonert, treasurer of the county, for the purpose of restraining the collection of the tax on the ground that its assessment was illegal and without authority of law, and obtained a temporary injunction. The trustees of Jackson township were made defendants. The defendants answered, separately, but substantially the same. Each denied that the suit was brought with the consent or at the request of the other taxpayers. And the trustees, as one of their defenses, averred: “That in the year 1872, the said township of Jackson in said county embraced the territory now comprising said Jefferson township; that at the same time and prior thereto, the said Jackson township, by reason of an act of the general assembly of the state of Ohio, entitled an act to provide bounties for re-enlisted veteran volunteer soldiers, had become liable for the payment of certain veteran bounty claims in aggregate some $849.08, the exact amount defendants are unable at this time to state; that said liability extended to and embraced the whole of the territory aforesaid which was then all in and a part of Jackson township aforesaid.
    “These defendants say that in the year of 1872, aforesaid, the said township of Jackson was divided and the township of Jefferson aforesaid was erected and created out of the territory of Jackson aforesaid, and said Jefferson township received $1,323.00 or more, the exact amount they are-unable to state more particularly, of the funds then and theretofore in the treasury of said Jackson township, being one-third of the said Jackson township funds, and said Jefferson township then and thereby became liable in law and in fact for the payment of one-third the liabilities of said former township of Jackson.

      “These defendants further allege that said Jackson township as now constituted, was compelled to pay and did pay the whole of said indebtedness, and that said Jefferson township paid no part thereof, although often requested so to do: that the amount and portion of said liability and indebtedness which said Jefferson township owed and were bound to pay was and is $283.02, and that the territory of Jefferson township and its taxable property is bound for the payment of said indebtedness, and for the purpose of obtaining payment thereof in pursuance of the statute in such case made and provided, these defendants, in the rightful exercise of their powers and duties, caused the same to be certified to the county auditor for taxation and collection.”
    An amendment to the petition having been made, in obedience to the order of the court, stating facts that as claimed made the tax illegal, Shonert, the treasurer, answered, and, after denying the averments of the petition as to the invalidity of the tax, and the right of the plaintiff to sue for the other parties, as a second defense, averred:
    “That on or about the 19th day of September, AM). 1886, said trustees of Jackson township, procured from said county auditor a certified abstract of all the taxable property of said Jefferson township, and proceeded to and did levy said sum of two hundred and eighty-three dollars and two cents on the taxable property of said Jefferson township, and certified an abstract thereof to the auditor of said county. That said county auditor entered the same upon the tax list and duplicate of said county and designated on said, duplicate the said levy of said township trustees as a ‘special tax,’ which, said duplicate, together with said abstract and the certificate of said trustees certifying for what purpose said levy was made, were by said county auditor delivered to this defendant as such treasurer for collection on or about the — day of October, A. D. 1886. And this defendant alleges that said abstract and cer-. tifieate were by him in his official capacity kept at his office for inspection by the taxpayers of said Jefferson township, and were by this defendant presented for inspection to all of the taxpayers of said Jefferson township who asked for an explanation of said tax at the time of the payment of their respective taxes on the duplicate charged against them. This defendant says that he has received the whole of said tax, that prior to the payment thereof he made no effort as such treasurer to collect the same, or to enforce the payment thereof by any process authorized for that purpose, but received said taxes when payment thereof was offered in the usual course of his official business as such treasurer. That said tax levied by said township trustees of two hundred and eighty-three dollars and two cents was all paid voluntarily, and without protest or objection.”
    The plaintiff replied to these answers; and, also, at the same time filed by leave of the court what is termed a supplemental petition, in which he averred: “That since the commencement of this action, and since the allowance and service of the injunction heretofore granted herein, which injunction has not been modified and is still in full' force and effect in law, the said defendant, Christian H. Shonert, as treasurer of said county, unlawfully, in violation of said injunction, and in contempt of this court, did collect and receive the whole of said ‘ special tax.’ in the petition mentioned and set forth, and now has the same in the county treasury of Crawford county, Ohio, as such treasurer : that said treasurer unlawfully, as aforesaid, and against their will and earnest protest, enforced and compelled the payment of said • ‘special tax’ by said two hundred and thirty-eight other taxpayers in this way; that when said taxpayers, or any of them, came to pay their lawful taxes to said treasurer, on the tax. duplicate assessed against their said lands, the said treasurer in each and every instance, refused to take, or accept said lawful taxes, or any part thereof, unless said taxpayers, or any of them would, at the same time, pay said ‘special tax, ’ and threatened that in case the whole of said tax, including said ‘ special tax’ was not paid, that the lands of each taxpayer so refusing to pay, would be by said treasurer, returned delinquent, and the collection of the same enforced by delinquent tax sale, and that to save their lands from such sale, said two hundred and thirty-eight taxpayers paid said ‘special tax’ under protest and against their will, in order to save their lands from being sold as aforesaid.”
    He further avers that he many times tendered “the lawful taxes” due from him on his lot; that the treasurer, disregarding the injunction, refused to receive the same, unless he paid the “special taxreturned his land as delinquent, and sold the same at delinquent tax sale to Peter Bauer, who holds the auditor’s certificate therefor; that the same is void and should beset aside; thatShonert’s term having expired, he turned over to his successor, Frank Blick, the whole of the special tax so illegally collected; that Bauer and Blick, together with the auditor of the county, Adam High, should be made parties. He then renewed the prayer of his former petition, and also prayed for an order restraining the treasurer from paying the money to any one until the final determination of thecase; .that the sale made by the treasurer should be setaside, and the plaintiff restored to all things lost by reason thereof; and, finally, that the treasurer, or his successor, “should be ordered to pay back to each and every of said taxpayers, and this plaintiff, the full amount of said special tax so unlawfully collected. ”
    The various defendants answered: Shonert, the former treasurer, denied that he collected the tax from any of the parties by braking threats of any kind. Blick, his successor, admits that he has in his possession as treasurer of the county, some $270.00, received by his predecessor and which he received from him. He had not collected any of it. Bauer averred that the property of the plaintiff had been returned delinquent for the taxes of 1885 and 1886; that it was duly advertised, and purchased by him at the tax sale in 1887 for the taxes due upon it, $5.13; that he has since paid the taxes thereon, and is willing to transfer the auditor’s certificate to the plaintiff on receiving the amount so paid, $13.73. The court at the hearing upon the pleadings and evidence found for the defendants and dismissed the action of the plaintiff. It was then appealed to the circuit court, where the defendants moved for judgment upon the pleadings. The motion was overruled and a hearing had upon the pleadings' abd evidence ; and, as appears from the record first filed in this court, the court at the request of the defendants, made a finding of the facts separate from the conclusions of law, and rendered judgment thereon, that the costs be paid out of the fund, and that the balance $115.20 be paid on the order of the county auditor to the trustees of Jefferson township; dismissed the “claim.” of Peter Bauer, and of the other parties, and taxed the cost of the treasurer and auditor of the county to the trustees of Jackson township. Subsequently, as appears from a record filed since the commencement of proceedings in error in this court, the circuit court, by a nunc pro tuno order, struck out the finding of fact as having been made without authority.
    Error is now prosecuted by the trustees of Jackson township and the other parties affected, for a reversal of the judgment of the circuit court on the ground that it is contrary to law, and should, upon the pleadings, have been for them.

      S. R. Harris, for plaintiff in error.
    There is no allegation in last petition that plaintiff has authority to sue Blick for the other men’s money. Each must sue for himself. Plaintiff does not stand in the same class with them. He did not pay his assessment. They did. Plaintiff can not maintain his action against Blick for any of the money in Blick’s hands, because he paid none of it.
    The plaintiff not standing in a position similar to the others cannot sue in their behalf. The men who paid the money for plaintiff below have no pleadings on file showing how much they severally paid, or that they want their money back. On "the contrary, all have acquiesced in it until they are

      barred by the statute. Sec. 5008, Revised Statutes; Quinlan v. Myers, 29 Ohio St., 508.
    A court of equity will not stand on the order in which the money came into the county treasury. It is sufficient that it was paid by property owners of Jefferson township who owed it, for the use of the Jackson township that was legally and equitably entitled to it. Pomeroy’s Equity, section 378.
    The action is barred by limitation. All taxes were collected before September 18, 1887. Wilson v. Pelton, 40 Ohio St., 306; Younglove v. Hackman, 43 Ohio St., 69.
    Remedy for illegal tax after sale. Section 32, Sw. & Or., page 104. Re-enacted, Revised Statutes, section 2880.
    The judgment is palpably erroneous for -the reason that it does not follow the pleadings. That the judgment must be in accordance with the pleadings, is elementary, and hardly needs argument. 3 Blackstone, 395, 396; Freeman on Judgements, section 2; Wright’s Rep., 518; 2 C. S. C. R., 167; 1 W. L. M., 699.

      Finley & Bennett, Cahill & Cahill and Dan Babst Jr., for defendants in error.
    Was the action rightfully brought? We brought the action under section 5008 of the statute.
    The facts are set out in the petition, and the right of each one to bring an action is supported by the decisions of this state. Upington v. Oviatt 24 Ohio St., 232; Manetho v. Golden, 5 Ohio St., 261; Umsted v. Buskirk, 17 Ohio St., 113.

      Did the trustees of Jackson township have any authority to levy the tax ? The answer to that question is to be found by reference to sections 1385 and 1386 of the Revised Statutes of Ohio.
    The holder of these tonds could have enforced a levy of a tax^ for the payment of them, and the trustees of Jackson township could have in making the levy to pay them, included the whole territory. Bates v. Richland township, 20 Ohio St., 362; Cass township v. Dillon, 16 Ohio St., 39; State v. Harris, 17 Ohio St., 608.
    Before or after the division, the trustees of Jackson township had power to levy the tax on the whole territory payable in installments, to pay these debts. 63 Ohio Laws, 188; 64 Ohio Laws, 232; 77 Ohio Laws, 294; Revised Statutes, sec. 1386; 20 Ohio St., 362.
    3. The facts found must be presumed to have been proved by the evidence. Dallas v. Ferneau, 25 Ohio St., 637-8.
    The judgment must be presumed to be sustained by the facts found. The court is vested with a discretion to try the case upon the evidence outside of the pleadings where no objection is made and to render judgment thereon, and judgment so rendered, will not be disturbed by a reviewing court. 41 Ohio St., 299, 407, 408; 34 Ohio St., 68, et seq.; 15 Ohio St., 216; 21 N. Y., 502; 116 Pa. St., 565; 12 Wend. Rep., 60; 13 Wend. Rep., 860; 71 Iowa, 71; 72 Cal., 251; 40 N. W., 265; 37 Minn., 68; 12 Ohio St., 8.
    4. Counsel argue very earnestly that this is an action to recover back taxes, and that it is barred by the statute of limitations. It i s answer enough to say that the prayer to recover back, cuts no figure in the case. The parties did not recover back whether the right to recover existed or not. The right to have the treasurer enjoined from paying over the money to Jackson.township was not barred.
   Minshall, J.

It may well be questioned whether the plaintiff was entitled to an injunction ag’ainst the tax levied by the trustees of Jackson township, upon the case made by him in his original and amended petition. It will appear from an examination of the statute authorizing the division of townships, now embraced in sections 1385 and 1386, Revised Statutes, that the original township and all parts and portions of the same, remain liable for all claims and demands existing against it at the time of the division. At the time of the division in 1872, the original township of Jackson was, by an act of the legislature, liable for the payment of bounties to the veteran volunteers that had been credited to it. This liability was discharged by the new township, retaining the name of Jackson, with money obtained by an issue of bonds that it subsequently paid off. But the liability discharged was as much a liability of Jefferson in proportion to the value of its property for taxation, as it was of the township of Jackson; and there is no question but that under the statute, its trustees might, instead of issuing bonds, have made a levy upon the taxable property in both townships, for that purpose; or might have done so to pay the bonds as they matured. Instead of this, Jackson township paid the bonds and made a levy upon the taxable property of Jefferson for its estimated portion of the indebtedness, one-third, that being the part of the funds received by Jefferson belonging to the original township at the time of the division. Now all that can be alleged against the course pursued is, that it was irregular, and may be in excess of the amount for which a levy could rightfully be made. So that, without an averment, and which is not made, that the amount assessed was in excess of the amount justly due, what standing had the plaintiff in equity ? That a part was due there can be no doubt; 'and if he claimed an excess he should in equity have tendered the amount due, and asked an injunction against the balance, according to the maxim, that he who asks equity must do equity. But the argument is, that the township of 'Jackson, by paying the indebtedness, extinguished it, and cannot, therefore, assert any claim upon it against Jefferson. This, however, is contrary to the well settled principle, that where one of two or more jointly or severally liable for the payment of a debt, pays it, the one so paying, has in equity a claim for contribution against his co-debtors. Payment under such circumstances, does not extinguish the debt as to them, but keeps it alive for the purpose named; and no reason is perceived why it should not apply to this, as to any similar case. But we do not dispose of the case on this ground.

The judgment ordering the payment of the costs out of the fund created by the payment of the special tax, and the remainder to Jefferson township, is erroneous; no reason is perceived for it, and it must be reversed. Jefferson township is not a party to the suit, and if it was, it, as a township, is not shown to have had any interest in, or title to the fund whatever. The taxes were paid by persons residing in it; and, if wrongfully levied and collected, each, as an individual, had the right in a proper ease, to recover back what he paid. The suggestion that if Jackson township was not entitled to the money, it cannot complain of the order made, is without force. It is a fundamental principle in the law of recovery, that a defendant’s possession of a thing cannot be disturbed by one who fails to show a better right. In this case the treasurer’s possession of the money was that of Jackson township; and it has therefore, a perfect right to complain of the order made.

But it also appears as we think from the pleadings, that judgment should have been rendered for the defendants, dismissing the petition; and that the court erred in overruling the motion for such judgment. By the amended and the supplemental petition, it appears that, since the commencement of the suit, the taxes had all been paid by those assessed, except that of the plaintiff, whose lands having’ been returned delinquent, were sold and the taxes, some 14 cents, paid by the purchaser. So that as to him there was nothing to enjoin, the tax having been paid; and there was nothing for him to recover back, as he had paid nothing. Having’ permitted his land to be sold, without enforcing the injunction against it, as he might have done, his remedy thereafter was to apply to the auditor of the county for its redemption, under the provisions • of the statute in that regard, for the redemption of delinquent lands. Section 2889 and the following sections. The remedy is an adequate one, but can not be had in this suit, which, under the supplemental petition, is an action to recover back the tax, alleged to have been unlawfully assessed, and paid under duress. But if he, as the others, had paid the tax, there is no rule of pleading or practice by which he for himself and the others can prosecute an action to recover back the money so paid. A suit to recover back is quite different in the grounds upon which a recovery can be had, from a suit to enjoin a tax. In the latter case, each is not only interested in the question involved, but a judgment may be rendered in favor of all as a class, upon substantially the same case, and terminate the litigation. Not so in an action. to recover back money paid under duress. In such case the judgment must not only be for each according to the amount due him, but must depend upon whether each as an individual, paid voluntarily or involuntarily.

But beyond this question of practice, it is shown by the supplemental petition that the payment by all of those who made payment was a. voluntary act on the part of each; and that there is no ground for a recovery back by any of them. It appears from the record that at the commencement of the suit a temporary order was made restraining the •collection of the tax until the further order of the court; and that it was during the pendency of this order that the payments were made. The averment of the supplemental pleading’ is: “That since the commencement of this action, and since the allowance and service of the injunction heretofore granted herein, which injunction has not been modified, and is still in full force and effect in law, the defendant, Christian Shonert, as treasurer of said county, unlawfully, in violation of said injunction, and in contempt of this court, did collect and receive the whole of said ‘special tax,’ and now has the same in the county treasury.” In this state of the case it is not possible to perceive how the parties, or any of them, can he said to have involuntarily paid any part of the tax for which a recovery is now sought. /They were under no legal compulsion to do so. If they paid because of the threat of the treasurer to return their lands as delinquent and cause them to be sold, or to take any other coercive step, it was their own folly, during the pendency of the injunction, to have listened to or been influenced by such threat. With the injunction in force, the treasurer was powerless to adopt any compulsory steps whatever. If he had attempted to do so, he could at once have been attached and punished by the court for disobeying its order. So that each must have paid with entire freedom from - anything like duress in law. It may not have been done with alacrity, but it was none the less a voluntary act. ^ Ample protection is afforded by law to the taxpayer against illegal levies. He may in the first instance enjoin the collection; or, having been compelled to pay under circumstances, deemed duress in law, and against his protest, he may recover back the amount paid; but it is unnecessary and contrary to its policy to permit both remedies to be adopted and pursued at the same time. Where the remedy by injunction is resorted to and a temporary restraining order obtained, he cannot be coerced into payment during its pendency,.and payment under such circumstances must be deemed a voluntary act, or as a waiver of any objection to the validity of the tax. \

Jtidgment reversed, and judgment for the defendants beloto, dismissing the aeUon of the plaintiff.