#### Fleetwood *v.*The City of New York. Post *v.*The same.

Where the owners of city lots which had been sold for the non-payment of void assessments, redeemed the same by paying to the street commissioner the amounts for which the lots were sold, with interest and costs; *Held,*that the payments being voluntary, and not made under a mistake of fact, or of law, could not be recovered back, in an action against the city.

The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity; and if one be wanting, no title is conferred.

In the absence of either of the proceedings forming an essential part of the record of an assessment title, such title is void on its face.

A void assessment constitutes no cloud upon the title ; and the payment of such an assessment, by the owner of the property, cannot be considered compulsory.

The cases respecting duress of personal property, in which it has been held that payments made for its relief are involuntary, and may be recovered back, are inapplicable to real estate.

*476Where a party, without any legal compulsion or duress of goods, yields to the assertion of an adverse claim, by paying the amount, he cannot detract from the force of his concession, by protesting against the legality of the claim. In such a case the payment nullifies the protest.

(Before Oakley, Ch. J., and Vandekpoel and Sandfoiid, J. J.)

March 6, 9,12 ;

May 12, 1849.

Motions to set aside report of referee. The first of these causes was an action of assumpsit, brought to recover the sum of $2527 22, paid by Fleetwood, the plaintiff, to the defendants, Feb. 27, 1845, to redeem several lots of ground belonging to him, from a sale thereof, made by the defendants on the 13th of June, 1843, under an alleged assessment for *filling the lots.*

The cause was referred to William Mitchell, Esq.

Upon the trial before the referee, it appeared in evidence that the plaintiff had paid the amount for which this action was instituted to the street commissioner, accompanying the payments, by a protest against the legality of the assessment. It also appeared that the plaintiff was the owner of the lots in question, and became such in January, 1845, and that at the time of his purchase, nothing was said, or known by him in reference to any assessment having been made.

It also appeared, by the testimony of the clerk of the common council, that he had searched in his office for an ordinance to fill in the lots in question said to have been passed in December, 1834, but that none could be found; that he had searched the original papers themselves, and could not discover any such ordinance.

The redemption clerk in the street commissioners office, at the time of the alleged passage of the ordinance in question, testified that it was his duty to take charge of redemptions for assessment, and to preserve the evidence of liens; that he had made diligent search, and could discover no papers in reference to this assessment, or the sales of the lots in question for such assessment. That the street commissioner’s office was the place where all original assessments were desposited.

It also appeared that at the time of the payment of the assessment in question, the plaintiff was negotiating for a loan by mortgage upon the premises, but the payment of the assessment *477was required as a condition precedent, it being regarded as a cloud upon the title.

It appeared in evidence, on the part of the defendants, that in the case of filling lots, the course of procedure was, for the city inspector to make out an ordinance which was submitted to the common council and the mayor, for approval. This was termed a *common ordinance.*After approval, the next step was to notify the owner or occupant of the premises, of the passage of the ordinance, giving them a definite time to perform. In case of their failure, a *special*ordinance was then passed, which recited, that for the more speedy execution of the work, it should be done by the common council. The city inspector would then advertise for proposals, and the contract was given to the lowest bidder. The surveyor made actual measurement of the filling of each lot, and returned a statement of the amount.

John Sickles, city inspector from 1835 to 1837, testified that these ordinances were never entered, unless endorsed with the approval of the mayor.

The defendants’ counsel produced in evidence two books entitled, *“ Ordinances for lot*6,” and *“ /Special ordinances for lots, vol.*1,” from the office of the city inspector, and offered to read out of the same ordinance 463 of common ordinances, and 528 of special ordinances. The same were read, subject to objection. These ordinances related to the lots in question, and covered the whole ground, but merely had the name of “ J. Morton, Clerk,” printed at the foot of them, and did not appear to have been approved by the mayor.

Mr. Forbes, who was city inspector at the time of the filling of the lots in question, testified that the course already detailed, was pursued in reference to the lots of the plaintiff, and that he never proceeded to fill in lots without first having the ordinance. That it was not always customary for the mayor to sign each separate ordinance ; but as was frequently the case, where there were several in a package, he would only sign the first one.

The assessment list for filling the lots in question was also produced in evidence. The city surveyor testified to having surveyed the filling of the lots, and having made out the amount *478from which the apportionment was made, which was handed to the comptroller. Other testimony was introduced, which it is not material to set forth; it being sufficiently referred to in the opinion of the court.

The referee reported in favor of the plaintiff, $3172.

The record of these causes, in which Post was the plaintiff, was a similar action to the other, and the facts were the same, except as otherwise mentioned in the opinion of the court. The referee reported in favor of Post for the amount paid by him to redeem his lots, with interest.

*J.*G. *Ferguson*and *E. Sandford,*for Fleetwood.

R. *Mott*and *D. P. Hall,*for Post.

*Willis Hall*and *A. J. Willard,*for the defendants.

By the Court. Sandford, J.

The referee has decided in these cases, that when the money was paid by the respective plaintiffs to the street commissioner, the corporation was not legally entitled to receive it. There were several distinct grounds upon which this conclusion was insisted by the plaintiffs. One of these, the want of any corporate ordinance, directing the lots to be filled, was a question of fact purely, and if found in favor of the plaintiffs, of itself sufficed to show that the assessments were void. As the referee may have reposed his decision on this point, and there was evidence in its support, we are not inclined to disturb the report on this ground; although there is a wide difference between proving the existence of an ordinance affirmatively in order to establish and enforce a legal claim founded upon it, and proving that there never was any ordinance, in an action to recover money paid on the assumption that one existed. Evidence tending to show that there was an ordinance, may be sufficient for a defence in the action for money paid, which would be totally inadequate to establish a title founded upon an assessment sale made by virtue of such ordinance.

The important question remains, can the plaintiffs recover *479back the money paid ? The payments were not made under any mistake of fact. The plaintiffs declared and insisted that the assessments and the sales were void ; and the referee has adjudged that they were void. There was no mistake of law even; for the plaintiffs knew perfectly well that a sale under a void assessment conferred no title upon the purchaser.

It is contended, however, that the payments were involuntary, and were made by compulsion. That the sales constituted a cloud upon the title, which cloud, circumstances compelled the plaintiffs to remove ; and it is intimated by the points made in Mr. Post’s case, that his payment was made through coercion, oppression, imposition, fraud, or by taking undue advantage of his situation, or by wrongfully exacting it, *colore officii.*

1. In regard to the cloud upon the title. The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity, and if one be wanting, no title is shown. Of these links in the chain, the plaintiffs insist that three at least never existed, viz.: the original ordinance directing the filling, the assessment of the expense, and the advertisement for redemption. Each of these preceedings forms an essential part of the record of the assessment title, and in their absence, such title is void upon its face. See the observations of the chancellor, in *Wiggin*v. *The Mayor, &c., of New York,*(9 Paige, 16,) and *Van Doren*v. *The Same Defendants,*(Id. 388.) A conveyance or judgment, void upon its face, does not constitute a cloud upon the title ; and the assertion of a title under such a conveyance, or of a lien by virtue of such a judgment, does not afford a ground for equitable interference ; much less does it constitute legal compulsion. There are cases of duress of personal property, in which payments for its relief, are deemed involuntary, and the money may be recovered back. Most of these have arisen upon seizures of goods under revenue or excise laws, and by public officers acting under process or warrant of law. The principle has been extended, occasionally, to cases where bailees, or others, who came into the possession of goods lawfully, have exacted more than was due, before they would relinquish such possession. It is founded upon the movable and perishable character of the prop*480erty, and the uncertainty of a personal remedy against the wrongdoer. The reasons for the rule .are wholly inapplicable to real estate, and we are not aware of any instance in which it has been applied to that species of property. On this subject of payments compelled by duress of property, we refer to *Chase*v. *Dwinall,*(7 Greenl. 134;) *Ellicott*v. *Swartwout,*(10 Peters, 137;) and *Clinton*v. *Strong,*(9 John. 370.)

It cannot be said therefore, that the payments in question were made through compulsion, coercion or oppression. There is no pretence that there was any imposition or fraud in the case. There was no advantage taken of the situation of the parties, nor was the money in any sense exacted from them. The corporation, whose agent, the street commissioner, received the money, was not only passive in respect of the payment, but so far as the case discloses, had no interest in the matter. The money, if the lots were redeemed, belonged to the purchasers; no part of it was to be retained by the corporation, and it was to the latter totally indifferent whether the redemption should be made or omitted.

The simple truth of the affair is this. The corporate authorities had sold these lots for assessments which they and the purchasers alleged to be valid in fact and in law. The original owners were entitled to redeem, on paying the bids with interest to the purchasers, through the street commissioner. Those owners averred and insisted that the assessments were absolutely void, both in fact and in law, and that the sales and conveyances were equally void. Thus the parties were at issue, each claiming a right, and the plaintiffs fully apprised of the grounds of *the*opposing claim. It became desirable for the one plaintiff to sell his lots, and for the other to mortgage his, and the assessment claims presented an obstacle to the accomplishment of their wishes. The plaintiffs, rather than to forego the opportunity of mortgaging and selling, chose to pay the assessments claimed ; instead of abiding the result of a litigation testing their validity.

In our view, this clearly constituted a voluntary payment, which according to a well settled and valuable principle of law, cannot be recalled. *(Silliman*v. *Wing,*7 Hill, 159; *Supervi*
      *481
      *sors of Onondaga*v. *Briggs, 2*Denio,*26,*39 ; *Brisbane*v. *Dacres, 5*Taunt. 143 ; *Robinson*v. City of *Charleston, 2*Richardson, 317. And see Ege v. *Koontz,*3 Barr’s Penn. R. 109.)

There is one fact in Mr. Post’s case, which distinguishes it from Fleetwood’s. Previous to his payment, the counsel of the corporation promised that his rights under a petition to the common council, should be reserved just as they then were; and both the corporation counsel and the street commissioner said, or assented to the proposition, that the plaintiff could pay the assessment, and reserve his rights against the corporation. These facts are not urged as showing any thing like fraud or imposition, because the officers named made no application to Mr. Post to pay the money, and they did not urge or request its payment, but it is claimed that they prove an agreement that the payment should not affect his rights.

As to the positive promise of the counsel, it relates apparently, to an application to the justice or clemency of the municipal legislature; and the assent of both officers to his being entitled to recover the money back, was rather the expression of an opinion on the law, than a stipulation.

But giving to the proof the broadest scope claimed for it, we do not perceive how it can alter the case. The corporation counsel had nothing to do with the subject matter. He could not receive the money or cancel the sale. As to the street commissioner, it was his duty by law to receive the redemption money, if tendered, for the benefit of the purchaser. He was a public officer, and the plaintiff was bound to know the extent of his authority. There is no proof that he was authorized to bind the corporation by such agreement as is inferred from the evidence; and there is certainly no such authority conferred upon him by law. If the plaintiff chose to redeem on the faith of such a promise, it gives him no rights against the corporation of the city.

The legal effect of the payment is not impaired by the protests made. When a party pays under duress of his goods, a protest may become important as evidence that the payment was the effect of the duress, and not an admission of the right *482enforced by the adverse party. But where there is no legal compulsion, a party yielding to the assertion of an adverse claim, cannot detract from the force of his concession, by saying, I object or I protest, at the same time that he actually pays the claim. The payment nullifies the protest as effectually as it obviates the previous denial and contestion of the claim.

The report of the referee must be set aside is each case, and the rules referring the causes are discharged.