Page:North Dakota Reports (vol. 3).pdf/204

 recover back the money so paid. A recovery was denied. The plaintiff was in possession, and the court said: “The execution and delivery of the tax deed in accordance with the alleged threat could work no disturbance to that possession, for, being founded upon a judgment void upon its face, its invalidity could always been shown, to defeat any claims that might be at any time asserted under it. There was therefore no necessity for plaintiff to make any redemption in order to protect his possession of the property. Neither was he required to do so to avoid any injurious consequences which might arise by reason of the apparent cloud which might be cast upon his title, for upon the facts stated he had a perfect and adequate remedy by action for the removal of such apparent cloud, whenever created.”

We deem it a well settled rule of law that where a party, with full knowledge of the facts, pays a demand that is unjustly made against him, and to which he has a valid defense, and where no special damage or irreparable loss would be incurred by making such defense, and where there is no claim of fraud upon the part of the party making such claim, and the payment is not necessary to obtain the possession of the property wrongfully withheld, or the release of his person, such payment is voluntary, and cannot be recovered. Nor will the fact that such payment was accompanied by a protest make that involuntary which otherwise would be voluntary. A protest is of no avail unless there be duress or coercion of some character, and then its only office is to show that the payment is the consequence of such duress or coercion. Benson v. Monroe, 7 Cush. 125; Commissioners v. Walker, 8 Kan. 431; Emmons v. Scudder, 115 Mass. 367; Lester v. Mayor, etc., 29 Md. 415; Potomac Coal Co. v. Cumberland & P. R. Co., 38 Md. 226; Gerecke v. Campbell, 24 Neb. 306, 38 N. W. Rep. 847; Mariposa Co. v. Bowman, Deady, 228; Lamborn v. Commissioners, 97 U.S. 181; Powell v. Board, 46 Wis. 210, 50 N. W. Rep. 1013. The District Court is directed to reverse the judgment in this case, and enter judgment for the defendant on the pleadings. All concur.

(54 N. W. Rep. 922.)