39 N.Y. 386 | NY | 1868
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *388
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *389 The assessment in question was illegal. (Laws of 1856, p. 143, § 20.) The certificate is substantially defective. The character requires, that a majority of those interested in paving and grading should petition. The certificate duly states, that a majority of those interested, in all the different and several kinds of work to be done, have petitioned. This certificate might be true, and yet, not one of the persons interested in the paving and grading, for which alone the petition is necessary, have joined in the petition. This question has deen decided in this court, in the cases of Lathrop v. The City of Buffalo, andDolan v. The Same. The only question in the case is, whether the assessment of this tax, and the sale of the premises to pay the tax, and the issuing of the certificate of sale to the defendant, created such a cloud upon the plaintiff's title, as justifies a court of equity to interpose.
This question is easily answered by reference to a few provisions of the defendant's charter, and the well settled rules of equity. In the first place, the charter makes the assessment a lien upon the lots, and it is provided by the thirty-ninth section of title five, that it shall not be necessary in any proceeding for the collection of any tax, or in any suit orproceeding, in which such tax shall come in question, to provethe validity thereof, or the regularity of any of the proceedingsby which the same should have been imposed, but said *390 tax shall be deemed to be valid, regular and conclusive, etc.,
(Laws, 1853, p. 483, § 39.) And the twenty-fourth section of the same title declares, that the certificate of sale shall be presumptive evidence of the facts stated therein. (Laws, 1853, p. 480, § 24.) This certificate of the sale is required to contain a description of the property and the term for which it was sold, and the particular tax, and the amount thereof, with the interest and expenses for which the sale was made, and the time when the right to redeem will expire. (Laws, 1853, p. 477, § 16.) The owner of the land must redeem by paying, etc., within three months after receiving notice, and, if he do not, the common council are directed, and it is their duty to issue a declaration in writing, to the purchaser under the corporate seal, signed by the mayor, and attested by the clerk, containing a description of the premises, the fact of the assessment, advertisement and sale, and the period for which the premises were sold, and which declaration may be recorded as a lease of real estate. (Laws of 1853, p. 477, § 18.) This same section declares, that this declaration shall be presumptive evidence in all courts andplaces, that such tax or assessment was legally imposed, and, that due proceedings to authorize such sale were had. This lease was not issued when this suit was commenced, but the assessment and sale were all proved by the certificate of sale, and the charter makes such certificate presumptive evidence of the facts therein contained, and is evidence in the defendant's possession of a legal assessment and a valid sale, and consequently, the tax, being a lien upon the lots, creates a cloud upon the plaintiff's title, and as the defendant is relieved from showing the assessment whenever he has the certificate, and when he gets his lease may stand upon that alone; it presents a case for equitable relief, the rule being, that, when the claim of the adverse claimant to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved to establish the illegality or invalidity, then a court of equity will interpose to remove the cloud. (Ward v. Dewey,
The judgment should be affirmed.
Concurrence Opinion
This action was brought to set aside certain assessments levied upon the lands of the several plaintiffs, to defray the expenses of paving and grading Niagara street, in the city of Buffalo, and for other purposes; which assessments are alleged to have been illegally made. The main question presented is, whether an action in the nature of a bill quia timet can be maintained to restrain the defendant from taking any proceeding to collect such assessments.
It is insisted by the defendant's counsel, that the question now raised has been decided adversely to the plaintiffs, in the case of Howell v. The City of Buffalo. The case is not reported, but we have been furnished with a copy of the opinion of Mr. Justice MASON, which is relied upon as decisive of the question involved. The learned judge holds, first, that a remedy exists by a common law certiorari to correct errors of this description, and, when this remedy clearly exists, that equity will not entertain jurisdiction; second, that the plaintiffs had no common or joint interest in any of the parcels of land upon which the assessments were severally levied, and they could not unite in an action; *392 and that the subject-matter of the action being land, every plaintiff must be interested in the same piece of the land affected.
On the part of the plaintiffs, it is contended, that the learned judge has manifestly, in his opinion, overlooked the case of Scott v. Onderdonk (
In the case of Scott v. Onderdonk, the land had been sold for the non-payment of a void assessment, but no conveyance or declaration of sale had been made. The Brooklyn charter provided, that the conveyance, when made, should be prima facie evidence of the facts therein recited and set forth; but it does not appear, that the assessment was presumed to be valid, or that the certificate of sale was in any way evidence of the facts therein stated, or that the declaration of sale was evidence in any proceeding, other than that for the recovery of the premises. The case is not as strong as the one before us, and it is, I think, apparent, that the learned judge in Howell's case did not give it the consideration to which it is entitled, and, as it stands as authority, never having been overruled or considered, it is decisive of the principle here involved.
The parties subsequently brought in, by the order of the court, as plaintiffs, would seem to be proper parties to the action, as the order has never been appealed from, and has been sanctioned and made lawful by subsequent legislation. (S.L. of 1865, 635 § 1.)
A number of suggestions are made by the appellant's counsel, which do not, I think, affect the final determination of the case. It must be disposed of on the one to which I have adverted, and, therefore, I have not deemed it necessary to discuss them.
The judgment must be affirmed.
All affirm.
Judgment affirmed. *394