Board of County Commissioners v. Ball , 22 Colo. 125 ( 1896 )

Mr. Justice Campbell

delivered the opinion of the court.

This action is not one for damages against the county for casting a cloud on plaintiff’s title, but is for a fixed sum which the' plaintiff alleges she was compelled to pay to Mitchell, the grantee of the defendant, in order to clear her title from a cloud before she could complete a sale. This money was paid to Mitchell. The county received none of it.

The wrong committed by the county, through its officers, was in assessing untaxable property, levying an illegal tax, and selling the property for failure to pay the same. If the county is liable at all to a landowner, under these circumstances, the extent of the liability would not be whatever sum Mitchell should exact, or the plaintiff be willing to pay, or what these persons should mutually agree upon, to have the cloud removed. But for such tortious acts of its officers* or for acts clearly beyond their power, the county, in the absence of a statute, is not liable. Board of County Commissioners v. Bish, 18 Colo. 474, and cases cited; Mechem on Public Officers, sec. 850; 1 Beach on Pub. Corps., secs. 258-263 and chap. 20.

In the absence of direct statutory authority therefor, we know of no law that would make the county liable for money paid by a landowner to one who holds a recorded tax deed for the land, in order to clear his title. If the board of county commissioners fraudulently, or with intent to damage the plaintiff, wrongfully conveyed to Mitchell the plaintiff’s land, of which the county held a tax deed issued under a void tax sale, even if this occasioned a cloud upon the title, the county cannot be held in damages therefor, whatever may be the liability of the officers in their individual capacity, as to which we express no opinion.

The circumstance that the county promised to pay, if the county attorney should so advise, is not important, for the liability of the county for an illegal demand preferred against it is not made legal merely because the county attorney advises that the claim be paid. If the plaintiff has a remedy for the recovery of the money paid to Mitchell, she has mistaken it in the present action.

The judgment is reversed, and the court below ordered to. dismiss the complaint.

Reversed.