67 N.Y.S. 996 | N.Y. App. Div. | 1901
Upon the facts as above stated the trial court found as conclusions of law: 1. “ That none of said assessment rolls were valid or sufficient to confer jurisdiction to levy any taxes or assessments; ” and, 2. “ That all of said taxes and sales and certificates of sale are null and void.” Which conclusions were obviously reached upon the theory, first, that under the charter of the city of Buffalo, which requires all lands to be assessed as resident lands (Laws of 1891, chap. 105, § 138), the premises in question should have been assessed to their real owner or occupant (1 R. S. chap. 13, tit. 2, art. 1 [1 R. S. 389]; Zink v. McManus, 49 Hun, 583 ; Cromwell v. MacLean, 123 N. Y. 474); and that, inasmuch as they were not thus assessed, the assessment was absolutely void ( Whitney v. Thomas, 23 N. Y. 281); and, second, that the assessment rolls were void because not certified in accordance with the requirements of the statute. (Laws of 1891, chap. 105, §§ 134, 140; People ex rel. Gillies v. Suffern, 68 N. Y. 321.)
It is undoubtedly the rule that where lands are taken under statutory authority, and in derogation of common-law rights, every requisite of the statute which is in any wise beneficial to the owner must be literally fulfilled. (Newell v. Wheeler, 48 N. Y. 486; People v. Hagadorn, 104 id. 516.)
And we are not prepared to say that the application of this rule to the facts of this case, but for one serious obstacle to which we shall presently direct our attention, would not fully warrant the conclusion reached by the learned trial court. At all events, such was apparently the view taken by the légal advisers of the county and city, for it seems that since the commencement of this action the aid of the State Legislature has been invoked to legalize and confirm the very acts and irregularities of the assessors of the city and the supervisors of the county out of which this controversy arose. (Laws of 1900, chap. 773.)
We do not deem it necessary, however, to discuss or determine the question to which we have just adverted, inasmuch as we have ■ reached the conclusion that even conceding that the plaintiffs are
The plaintiffs in their complaint rest their causé 6f action and their prayer for relief upon the judgment which Read recovered in his action against the West Shore Railway Company. .They allege “ that pursuant to said judgment ” the premisesin question were sold by a referee, and that “ pursuant to said judgment- and sale, a-deed of conveyance * * * was duly executed and delivered by. said referee to the plaintiffs.” That thereby the title conveyed by Cromwell to Read became vested in the plaintiffs, “who are now in actual possession of said premises, claiming an estate in fee therein through the conveyances above mentioned.”
■ No reference is made in the complaint to a title in the plaintiffs derived from any other source, and it follows that the right which they are now seeking to enforce must necessarily have originated in such judgment and the deed executed in pursuance thereof. This being the case, it is plain that the plaintiffs took only such title as the judgment awarded, and also took it subject to all the conditions and burdens which the judgment imposed.
By reference to this judgment it will be observed that among-its most important provisions is the one imposing certain conditions, which have been quoted in the preliminary statement of facts, and the proposition seems too plain for discussion that if the .plaintiffs took their deed pursuant to this judgment, whatever-; title they acquired thereby became subject to the very taxes and. . assessments in virtue of which the premises were subsequently sold. to these defendants. Or, in other words, that by taking title “ subject to all taxes and assessments which have become liens subsequent’ to February 21st, 1884,” they recognized the validity of the same taxes and assessments which they are now seeking to have declared void.
In these circumstances we do not see why the doctrine of estoppel ought not to be enforced with some degree of strictness, for, having purchased a valuable piece of property which had been appraised at $14,500 for the nominal sum of $1,000, it would now- be. highly inequitable to allow the plaintiffs to violate' the conditions-upon which they purchased the same, even if the taxes, and- assessments subject to which the sale was made were concededjy .invalid. ■■ This ■
As long ago as 1852 it was held by the Court of Appeals that the purchaser of an equity of redemption, at a foreclosure sale under a junior mortgage, subject to the lien of a prior mortgage, could not set up the defense of usury against such prior mortgage, because it would be releasing the land from an incumbrance which the grantee had expressly agreed it should be subject to and, therefore, contrary to equity. (Sands v. Church, 6 N. Y. 347.)
Subsequently, in Hartley v. Harrison (24 N. Y. 170), it was said that “ The law is well settled in. this state that the purchaser who takes a conveyance of the premises from the mortgagor subject to the lien and payment of a mortgage, cannot set up the defense of usury against such mortgage and thus obtain an interest in the land which the mortgagor never agreed or intended to transfer to him.”
In the case now under review it is obvious that the court did not intend that the purchaser at a referee’s sale should take the premises relieved of all incumbrances in the way of taxes, and if the ¡plaintiffs bought them subject to such incumbrances, and at a price which was unquestionably affected thereby, there certainly would be no justice in permitting them, upon discovering that the taxes subject to which they had purchased were invalid, to transfer money from the treasury of the city and county to their own pockets, and that is practically what, it would amount to if their contention is to be sustained.
The cases to which we have referred are but types of many more recent ones, in all of which the doctrine is reiterated that one who holds real estate under a deed which by its terms is subject to a prior mortgage, is estopped from questioning the consideration or validity of that mortgage. (Freeman v. Auld, 44 N. Y. 50; Ritter v. Phillips, 53 id. 586; Parkinson v. Sherman, 74 id. 88; McConihe v. Fales, 107 id. 404; Beebe v. Richmond Light & Power Co., 3 App. Div. 334.)
In some of these cases it is true that the grantee not only took his title subject to but actually assumed the payment of an invalid incumbrance. We do not see, however, that this in any way affects the question we are considering,, for in all the cases the principle of
■ If this principle is applicable to the facts of this case, as we think-it is, it necessarily defeats the plaintiff’s recovery unless a different ■ state of' facts can be made to appear.
. Judgment is, therefore, reversed and a new trial ordered, with . costs to each of the appellants to abide the event.
All concurred, except Spring, J., who dissented.
Judgment reversed and new trial‘ordered, with costs to appellant to abide event.
