Merrill v. Austin (1879) · DecisionDepot

Merrill v. Austin

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1879 No. No. 5546Published

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Holding. A tax payment made before the tax is returned delinquent is considered a voluntary payment, as the taxpayer is not under legal coercion to prevent the forced sale of property.

Issues

Whether a tax payment made before the tax becomes delinquent constitutes a voluntary payment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The payment was a voluntary payment, because the defendant was not then in a position to enforce the collection by a sale of plaintiff’s property.”

“Until the tax became delinquent, the plaintiff was not under such legal coercion as compelled the payment”

Synopsis

Yoluktaby Payment ob Tax.—The payment to a Tax Collector of the amount of a tax, made before the tax was returned delinquent, was voluntary, although accompanied by a protest in form, and the amount so paid cannot be recovered back.

[380]By the Court :

The payment under protest was -made on the 2nd day of January, 1873, and before the tax (which was on personal property alone) was returned delinquent. Until the tax became delinquent, the plaintiff was not under such legal coercion as compelled the payment in order to save the collection of the amount by sale of his real property or otherwise. The payment was a voluntary payment, because the defendant was not then in a position to enforce the collection by a sale of plaintiff’s property. (Williams v. Corcoran, 46 Cal. 556; Bank of Woodland v. Webber, 52 Cal. 73, and other cases.)

Judgment and order reversed, as of the day of the submission of the cause. Kemittitur forthwith.

Merrill v. Austin

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