Opinion by
Mr. Chief Justice Moore.
1. Two questions are presented for consideration: Was the tax void? If so, was it paid under such circumstances as to authorize a recovery thereof? These inquiries will be treated in the order stated. An application, under Act Cong. June 4, 1897, c. 2, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541), in conformity to rule 18 of the Interior Department, as set forth in the circular of June 30, 1897 (24 Land Dec. Dept. Int. 593), to surrender to the United States an unperfected bona fide claim to land within a public forest reservation, or to reconvey to the government patented land therein, and to select in lieu thereof unoccupied nonmineral land of equal area, is an offer to exchange real property or an interest therein for other lands, to which latter premises neither an equitable estate attaches nor in which a legal title vests until the proposal is accepted by the Commissioner of the General Land Office. Pacific Live Stock Co. [332] v. Isaacs, 52 Or. 54 (96 Pac. 461); Cosmos Exploration Co. v. Gray Eagle Co., 190 U. S. 301 (23 Sup. Ct. 692: 47 L. Ed. 1064). While both the equitable and the legal titles thus remain in the United States, the premises selected are not subject to taxation. State v. Itasca Lbr. Co., 100 Minn. 355 (41 N. W. 276); Wisconsin R. Co. v. Price County, 133 U. S. 496 (10 Sup. Ct. 341: 33 L. Ed. 687).
2. It is generally held that when payment of the full consideration for public land has been made, and the receiver of the local land office, to evidence that fact, issues a final receipt, • it operates to transfer such an equitable estate in the premises as immediately to render them liable to taxation, though the legal title is held by the United States until a patent is executed. Kansas Pac. Ry. Co. v. Prescott, 16 Wall. 603 (21 L. Ed. 373); Hussman v. Durham, 165 U. S. 144 (17 Sup. Ct. 253: 41 L. Ed. 664). This rule, however, does not apply to the case at bar, for, under the act mentioned, the receiver has no duty to perform respecting land selected, except to transmit the application and accompanying evidence to the Commissioner of the General Land Office for consideration, upon whose approval a patent is issued. Prior to such confirmation the applicant has no interest in the land that is subject to taxation.
3. The law in force when the tax herein is alleged to have been levied required all real property to be assessed on March 1st of each year, at the hour of 1 o’clock A. M. B. & C. Comp., § 3057. It will be remembered that the complaint states that the land selected July 16, 1902, was not approved until June, 1904, and that the selection of July 18, 1902, was never confirmed. Treating as true the averments of the complaint, which is required to be done when the sufficiency of that pleading is challenged by a demurrer, it is manifest that on March 1, 1903, the year when the plaintiff’s land was assessed, the equitable estate in, and the legal title to, the premises were held by the United States.
[333] 4. Nor can the doctrine of title by relation be invoked to uphold the tax, by carrying the plaintiff’s interest in the selected land back to July 16, 1902, when he made the application, for that principle is a fiction of the law which the courts, upon broad rules of equity, apply in furtherance of justice, but never employ except when necessary to give effect to an instrument, the operation of which would otherwise be defeated. Jackson v. Ramsey, 3 Cow. (N. Y.) 75 (15 Am. Dec. 242); Gilbert v. McDonald, 94 Minn. 289 (102 N. W. 712: 110 Am. St. Rep. 368); State v. Itasca Lbr. Co., 100 Minn. 355 (111 N. W. 276).
5. Since the plaintiff, in the year 1903, had no equitable interest in the land alleged to have been assessed, the tax levied thereon is void. A diversity of judicial utterance is to be found respecting the manner of paying an alleged illegal tax, so as to authorize a recovery thereof in an action instituted for that purpose. In Brown v. School Dist., 12 Or. 347 (7 Pac. 357, 358), which was a suit to enjoin the collection of a tax, a part of which was levied to pay interest on bonds that were claimed to be invalid, it was ruled that in order to obtain the desired relief it was incumbent upon the plaintiffs to pay or tender the part of the tax that they admitted to be due; but, not having done so, the suit was dismissed. In deciding that case Mr. Justice Thayer said: “If the appellants are obliged to pay the portion of the tax they claim to be illegal, they will not necessarily lose the amount paid. They can pay it under protest, in order to relieve their property, and, if it be illegal, can recover it back.” As the advice thus given was not based on any question involved in the suit, the language quoted is not controlling herein.
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Opinion by
Mr. Chief Justice Moore.
1. Two questions are presented for consideration: Was the tax void? If so, was it paid under such circumstances as to authorize a recovery thereof? These inquiries will be treated in the order stated. An application, under Act Cong. June 4, 1897, c. 2, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541), in conformity to rule 18 of the Interior Department, as set forth in the circular of June 30, 1897 (24 Land Dec. Dept. Int. 593), to surrender to the United States an unperfected bona fide claim to land within a public forest reservation, or to reconvey to the government patented land therein, and to select in lieu thereof unoccupied nonmineral land of equal area, is an offer to exchange real property or an interest therein for other lands, to which latter premises neither an equitable estate attaches nor in which a legal title vests until the proposal is accepted by the Commissioner of the General Land Office. Pacific Live Stock Co. [332] v. Isaacs, 52 Or. 54 (96 Pac. 461); Cosmos Exploration Co. v. Gray Eagle Co., 190 U. S. 301 (23 Sup. Ct. 692: 47 L. Ed. 1064). While both the equitable and the legal titles thus remain in the United States, the premises selected are not subject to taxation. State v. Itasca Lbr. Co., 100 Minn. 355 (41 N. W. 276); Wisconsin R. Co. v. Price County, 133 U. S. 496 (10 Sup. Ct. 341: 33 L. Ed. 687).
2. It is generally held that when payment of the full consideration for public land has been made, and the receiver of the local land office, to evidence that fact, issues a final receipt, • it operates to transfer such an equitable estate in the premises as immediately to render them liable to taxation, though the legal title is held by the United States until a patent is executed. Kansas Pac. Ry. Co. v. Prescott, 16 Wall. 603 (21 L. Ed. 373); Hussman v. Durham, 165 U. S. 144 (17 Sup. Ct. 253: 41 L. Ed. 664). This rule, however, does not apply to the case at bar, for, under the act mentioned, the receiver has no duty to perform respecting land selected, except to transmit the application and accompanying evidence to the Commissioner of the General Land Office for consideration, upon whose approval a patent is issued. Prior to such confirmation the applicant has no interest in the land that is subject to taxation.
3. The law in force when the tax herein is alleged to have been levied required all real property to be assessed on March 1st of each year, at the hour of 1 o’clock A. M. B. & C. Comp., § 3057. It will be remembered that the complaint states that the land selected July 16, 1902, was not approved until June, 1904, and that the selection of July 18, 1902, was never confirmed. Treating as true the averments of the complaint, which is required to be done when the sufficiency of that pleading is challenged by a demurrer, it is manifest that on March 1, 1903, the year when the plaintiff’s land was assessed, the equitable estate in, and the legal title to, the premises were held by the United States.
[333] 4. Nor can the doctrine of title by relation be invoked to uphold the tax, by carrying the plaintiff’s interest in the selected land back to July 16, 1902, when he made the application, for that principle is a fiction of the law which the courts, upon broad rules of equity, apply in furtherance of justice, but never employ except when necessary to give effect to an instrument, the operation of which would otherwise be defeated. Jackson v. Ramsey, 3 Cow. (N. Y.) 75 (15 Am. Dec. 242); Gilbert v. McDonald, 94 Minn. 289 (102 N. W. 712: 110 Am. St. Rep. 368); State v. Itasca Lbr. Co., 100 Minn. 355 (111 N. W. 276).
5. Since the plaintiff, in the year 1903, had no equitable interest in the land alleged to have been assessed, the tax levied thereon is void. A diversity of judicial utterance is to be found respecting the manner of paying an alleged illegal tax, so as to authorize a recovery thereof in an action instituted for that purpose. In Brown v. School Dist., 12 Or. 347 (7 Pac. 357, 358), which was a suit to enjoin the collection of a tax, a part of which was levied to pay interest on bonds that were claimed to be invalid, it was ruled that in order to obtain the desired relief it was incumbent upon the plaintiffs to pay or tender the part of the tax that they admitted to be due; but, not having done so, the suit was dismissed. In deciding that case Mr. Justice Thayer said: “If the appellants are obliged to pay the portion of the tax they claim to be illegal, they will not necessarily lose the amount paid. They can pay it under protest, in order to relieve their property, and, if it be illegal, can recover it back.” As the advice thus given was not based on any question involved in the suit, the language quoted is not controlling herein.
6. We believe that reason supports the rule that when a tax has been paid without compulsion, but with comprehension of its invalidity, or with means of knowledge of its illegality, the liquidation is voluntary and prevents [334] a recovery of the money disbursed, although the payment may have been made under protest. In an exhaustive note to the case of Mayor of Baltimore v. Lefferman, 45 Am. Dec. 145, 153, it is said: “The rule allowing a party to recover money which he has once paid, on the ground that it was paid under compulsion, is intended only for the relief of those who are intrapped by sudden pressure into making such payments, and who -have no other means of escaping an existing or imminent infringement of their rights of person or property. Where a party has time and opportunity to relieve himself from his predicament without making such a payment, by a resort to ordinary legal methods, but nevertheless pays the money, the payment will be deemed voluntary, and he cannot recover it. This is clearly shown in all the cases on the subject.” Thus in Detroit v. Martin, 34 Mich. 170 (22 Am. Rep. 512), the plaintiff’s lot was assessed for a street improvement, and he was notified by the city attorney that unless, within a stated time, he paid the burden imposed, his property would be sold to satisfy the demand. At the expiration of the time limited the plaintiff paid, under protest, the sum claimed. The assessment was thereafter decreed to be invalid, and in an action to recover the amount so disbursed it was ruled that the payment was voluntary and the money could not be obtained. In a note to the case of Phelps v. Mayor of New York, 2 L. R. A. 626, it is said: “A payment is voluntary if made by a party informed of all the facts connected with the subject-matter of the payment, and under the influence of no distress or coercion, even though accompanied with a protest” — citing many cases in support of the text. To the same effect, see the notes to the case of Phoebus v. Manhattan Social Club, 8 Am. & Eng. Ann. Cas. 667, 669, where it is said: “In accordance with the well-established principle of law that money paid voluntarily and with knowledge of the facts cannot be recovered, it is held that taxes voluntarily paid cannot [335] be recovered, and, in the absence of statute, that the payment of illegal taxes ‘under protest’ does not make the payment involuntary so as to authorize the taxpayer to recover the taxes so paid.” In the very interesting notes to that case are collated decisions from courts of last resort in many states which sustain the legal principle thus epitomized. So, too, when a person engaged in any enterprise reasonably apprehends that the operation of his business will be suspended, or that, by reason of his failure fully to comply with the demands prescribed by some public service corporation, the enjoyment of his property will be seriously interfered with unless an illegal. exaction is liquidated, the discharge thereof under such circumstances is involuntary, and the excessive amount so paid can be recovered in an action of assumpsit instituted for that purpose. American Brewery Co. v. St. Louis, 187 Mo. 367 (86 S. W. 129); 2 Am. & Eng. Ann. Cas. 821.
7. It is impossible to reconcile the many conflicting decisions that have been rendered on the subject under consideration. The rule is settled, however, that when a person whose property' is charged with an illegal tax has been apprehended, or his goods seized, or the tax collector with a warrant threatens immediately to make the arrest to coerce payment, or to levy upon and sell property to satisfy the demand, or to begin a criminal prosecution for non-payment of the tax, thereby inducing the belief that the menace will be put into execution, in consequence of which the invalid exaction is discharged, the payment thus made is involuntary, and the money so disbursed may be recovered. 22 Am. & Eng. Enc. Law (2 ed.) 613; Southern Ry. Co. v. Florence, 141 Ala. 493 (37 South. 844); 3 Am. & Eng. Ann. Cas. 106.
8. It will be remembered that the complaint herein avers that the sheriff of Crook County, obeying the command of the warrant attached to the roll, notified the [336] plaintiff that his land was taxed to the extent of $364.57, informed him that the exaction was just and due, and that unless the sum was paid he would “in due time” collect it by a sale of the property. It is nowhere alleged that the sheriff was either in the act of selling the land, or that he threatened immediately to do so; or that the plaintiff, believing that the menace would be instantly executed, was by the abrupt urgency insnared into meeting the payment, or that he had no other expedient of freeing his property from the lien which the levy of the tax created.
In the case at bar, the complaint fails to allege such a state of facts as to bring the action within any of the recognized rules adverted to, and no error was committed in sustaining the demurrer.
It follows from these considerations that the judgment should be affirmed, and it is so ordered.
Affirmed.