Carillo

The illegality of the demand paid constitutes in itself no ground for relief. There must be in addition some compulsion or coercion attending its assertion which controls the conduct of the party making the payment. If he voluntarily pay an illegal demand, knowing it to be illegal, he is entitled to no consideration ; and if he pay in ignorance of the law, he is in no better position. {Brummagen v- Tillinghast, 18 Cal. 271 ; Buclcnall v. Story, 46 Cal. 595 .) The assessment being void, the sale by the Tax Collector would be simply a nullity, and his deed would not be prima facie evidence of title, and therefore would impose no cloud. {Buclcnall v. Story, 36 Cal. 67 ; Law v. Lewis, 46 Cal. 549 .) The payment, therefore, under protest, will not avail her. The payment under protest is to take from the payment its voluntary character, and thus conserve to the party a right of action to recover the money. {McMillan v. Richards, 9 Cal. 417; Brummagen v. Tillinghast, 18 Cal. 267 .) If a party pays an illegal claim under protest, the payment nullifies the protest. (Fleetwood v. City of New Fork, 2 Sanford, 481; Buclcnall v. Story, 46 Cal. 597 .)

Brunson, Eastman & Graves, for the…