13 Wis. 684. There was in Wisconsin at that time an express statute authorizing a recovery; but the court goes further, and pronounces the statute simply declaratory of the common law, and denies the application of therule of caveat emptor to a case of that kind. This case was against a county. The certificate had been issued on a general tax-sale, and was void by reason of irregularities in the tax proceedings. The court makes a distinction, holding, in effect, that as to the title of the party against whom the tax was assessed the tax-title purchaser buys at his peril, but as to the sufficiency of the proceedings to pass that title he takes no chances. No authority is cited in support of the opinion, but it has been repeatedly recognized and followed in Wisconsin. See Van Cott v. Supervisors, 18 Wis. 247; Warner v. Supervisors, 19 Wis. 611; Hutchinson v. Supervisors, 26 Wis. 402; Barden v. Supervisors, 33 Wis. 445. In Chapman vy. City of Brooklyn, 40 N. Y. 372, the common-law right of recovery in a case quite similar to the case at bar was also asserted. In that case the city had assessed certain property for street improvement. Under the law the property had to be assessed in the name of the owner, and upon non-payment such proceedings were to be had as should ultimately terminate in a judgment in a court of record against such party, and on such judgment an execution was to be issued against the personal property of the defendant. If such execution was returned, unsatisfied, then, and then only, could the property against which the assessment was made be sold. In this case the assessment was made and all the proceedings had and judgment rendered against a party who had no interest in the land whatever.
It will be noticed that, under the distinction in Norton v. Supervisors, supra, the case of Chapman v. City of Brooklyn presents the exact conditions for the application of the rule of caveat emptor. The court, however, did not apply the rule, but adverted to the broad equity principle already stated, and said that under those principles it had been repeatedly held that taxes illegally imposed and collected might be recovered back. Now, if judicial decisions can determine anything, it is well settled that illegal taxes voluntarily paid can never be recovered
