ing of the payments. 3. That the personal judgment against the members of the board of public works is not sustained by the findings or the evidence. 4. That the action was not begun until after the money paid in upon the assessments had been paid out by the city upon the damages allowed in the proceeding for the opening of the street, and that in such a case the money cannot be recovered from the city or its officers. 5. That with respect to some of the assignors of the plaintiffs the action is barred by the two years' statute of limitations. Some minor points regarding rulings upon the admission of evidence will be considered in connection with the question of voluntary payments. We will consider the points in the order above stated.

[1] 1. The general rule is that money paid to an officer upon taxes or assessments which are alleged to be illegal and void is not deemed in law to have been paid under compulsion so as to allow a recovery thereof where there is nothing to induce or compel payment except the mere threat by the officer of a sale of property or a suit for the recovery thereof if payment is not made. There must be in addition some coercion or compulsion which amounts to a duress of the person or property of the payer. (Phelan v. San Francisco, 120 Cal. 5, [52 Pac. 38]; Maxwell v. San Luis Obispo County, 71 Cal. 466, [12 Pac. 484].) In the present case, however, we think the facts show that there was such coercion and compulsion.

The conditions under which the payments were made were as follows: Under the charter of the city of Los Angeles, its board of public works exercised the powers conferred by the act of 1903, aforesaid, on the street superintendent. (Stats. 1905, p. 983.) In pursuance of the ordinance above mentioned, the board made and filed an assessment for the expenses of the street opening and published notice thereof. The assessment charged certain sums of money against lands of the plaintiff's assignors. These assessments thereafter became delinquent and on December 8, 1911, the board published a notice of the sale of the property for such delinquent assessments, stating therein that the property would be sold on December 27, 1911, unless the assessments thereon with penalties and costs were paid in the meantime. Prior to the day of sale the plaintiffs' assignors paid their respective assessments. The act of 1903 provides that if a delinquent assess

ment is not paid, the property assessed must be sold to any person who will take the least quantity of land and pay the assessment, penalty, and costs; that a certificate of sale must be issued to such purchaser, which vests in him the lien of the assessment; that after twelve months from the sale, if the purchaser has given proper notice of his application therefor, a deed of the property sold must be made to him; that at any time prior to the execution of such deed the property may be redeemed from such sale; and that such deed "shall be prima facie evidence of the truth of all matters recited therein, and of the legality of all proceedings prior to the execution thereof, and of title in the grantee." (Stats. 1903, p. 383, secs. 25-29.) The rule regarding payments made under such circumstances is well established by our decisions. Gill v. Oakland, 124 Cal. 335, [57 Pac. 150], is a case in point. That was an action to recover money paid under protest upon a street opening assessment, made under the act of 1889 (Stats. 1889, p. 70), which in all essential particulars, so far as this question is concerned, was identical with the act of 1903. Concerning the claim that payment made after the giving of notice of sale and before the sale was to take place was voluntary, the court said (124 Cal. 341, [57 Pac. 152]): "Under the rule stated in Pixley v. Huggins, 15 Cal. 128, many times approved by this court, the deed would cast a cloud upon plaintiff's title. It has been recently held here that where an officer is about to sell property under a void assessment he may be enjoined. (Chase v. City Treasurer, 122 Cal. 540, [55 Pac. 414].) This remedy was open to plaintiff in the present case. But it was not the only remedy available to him. [2] He also had the right to pay the assessment under protest, setting forth the grounds of its illegality, in order to prevent the sale and clouding the title of his property; and he could look for relief in an action at law, which this is. The facts which gave the remedy of injunction gave the remedy at law, and payment after protest, under the circumstances here disclosed, was payment under duress. Where the deed shows on its face that the tax or assessment was void, or the law under which it was levied was invalid, a payment has been held to be voluntary and not recoverable. Such were the facts in the cases cited by appellant. In the present case, however, plaintiff's rights would have been cut off if he had not paid the assessment or enjoined the sale." The reason for the dis

tinction made between this and the other cases where payment was held to be voluntary is that in those cases the deed upon the invalid sale would, when executed, show on its face its invalidity, so that when the grantee therein sought to establish his right under the deed, his very attempt to do so would defeat such right. In such a case it is well established that equity will not enjoin the making of the sale or the execution of the deed, and it has also been held that the threat of such sale and deed does not constitute sufficient duress of property to make the payment under protest involuntary within the doctrine that an involuntary payment may be recovered. In the present case the proceedings were not void on their face, and the deed, when executed, would have been prima facie evidence of the title of the grantee to the land purporting to be conveyed thereby.. The defect in the description of the boundary was a latent defect. It did not appear on the face of the ordinance, but was made to appear in the case of Walker v. Los Angeles, 23 Cal. App. 634, [139 Pac. 89], by extrinsic proof showing that the calls in the boundary lines. were so uncertain that, when applied to the extrinsic facts, the point to which they would lead could not be ascertained. In any litigation by the property owner with a grantee under such sale, it would be necessary for such owner to establish these facts. [3] For these reasons the case comes within the rule that his property is imperiled by the threatened sale and that he may pay the assessment under protest and subsequently recover it in an action. In the cases of Williams v. Corcoran, 46 Cal. 553, Wills v. Austin, 53 Cal. 152, and Byrne v. Drain, 127 Cal. 663, [60 Pac. 433], cited by the appellant, the deed and the proceedings thereunder were invalid on their face and consequently did not create any cloud upon the title to the land or constitute duress of property sufficient to make such payment involuntary. (Maskey v. Lackmann, 146 Cal. 780, [81 Pac. 115].) They do not conflict with the doctrine stated in Gill v. Oakland, supra.

It is urged that the previous decisions on the subject favorable to the respondent were overruled in Crocker v. Scott, 149 Cal. 575, [87 Pac. 102]. The point now under consideration was not involved in that case. It was a suit to enjoin a sale by the tax collector. The main question discussed was the discretionary power of courts of equity to enjoin the ordinary proceedings for the collection of taxes. It was said to be the

rule that such injunction would not issue unless it was necessary to protect the rights of the property owner, or unless it appeared that he had no adequate remedy at law, and, therefore, that "a court of equity will go no further than is necessary to protect the rights of the property owner, and will not to any greater extent impede the officers of the state in the performance of their duties" (149 Cal. 594, [87 Pac. 110]). Upon this principle the court held that under the law then existing, under which the only thing done on the day of sale would be a formal entry of the sale to the state itself of all delinquent property on the roll, a sale redeemable at any time within five years, and thereafter until the state should receive a deed from the tax collector and should offer the property for resale, that neither the certificate of sale nor anything to be done prior to the execution of the deed, more than five years afterward, constituted prima facie evidence of the validity of the proceedings, and therefore that equity would not interpose to prevent the performance of the preliminary acts by the tax collector. Although not stated in the opinion, it might have been said as another reason for denying the injunction that the property owner would have a remedy at law under section 3819 of the Political Code, by paying the alleged illegal tax and proceeding with the action there authorized to recover it from the county. This case is not in conflict with the rule that in cases not covered by section 3819, where the ultimate result of the threatened sale will be the execution of a deed prima facie valid, the party may prevent the sale by payment under protest, and that such payment will not be deemed voluntary but may be recovered in an action for money paid.

[4] With respect to the protest, the finding is that the owners paid their respective assessments "under protest, and did, at the time of said payment, then and there reserve to themselves and each of them the right to fully recover the same." This is a sufficient finding of the ultimate fact. The evidence in support of this finding is claimed to be insufficient. It appears that the action of Walker et al. v. Los Angeles et al. was begun some time prior to December 4, 1911; that its object was to enjoin the city of Los Angeles and the board of public works from making any sale of the property of plaintiffs therein upon the assessment in question; that the amended

complaint therein was served on the defendants on December 4, 1911; that on December 8, 1911, as above stated, the board of public works gave the necessary notice of sale, fixing the date of the sale as December 27, 1911; that almost all of the plaintiffs' assignors in this action were plaintiffs in the aforesaid action to enjoin the sale; that while this action was pending, the payments herein sued for, with two exceptions to be hereafter noticed, were made to the board of public works. The books of the board show that opposite the entries therein of the assessments against twenty-three of plaintiffs' assignors there was indorsed in red ink at the time of payment thereof by the collecting officer the words, "paid under protest." Ten of the persons whose payments were not so marked testified on the trial that when they made the payments they orally stated to the collecting officer that they paid the same under protest. One or two of these do not appear to have used the word "protest," but merely objected that the tax was unjust, because their property was assessed in greater proportion than the property of some others within the district. As the case must be reversed for other reasons, it is unnecessary to determine here whether with respect to these two persons the protest was sufficient. There was no evidence that any of the persons paying under protest specified at that time, as grounds thereof, that the assessments were void because of the latent ambiguity in the description above referred to. As to those whose payments were marked as paid under protest on the collector's book there was no other evidence of the nature of the protest except the entry on said book. The complaint in Walker et al. v. Los Angeles et al. stated clearly the facts concerning the latent ambiguity in the description upon which the assessment was finally adjudged to be void. From the testimony of the witnesses concerning the conversations at the time of payment, and from the pendency of the Walker case, and the allegations of the complaint therein, the court below might reasonably have inferred that the grounds upon which the parties claimed that the assessments were invalid were fully understood, both by the protesting owners and by the collecting officers, as including those stated in said complaint; and that there was no necessity for further specification to make the reasons for the protest fully understood by such officers.