133 N.Y.S. 314 | N.Y. App. Div. | 1912
Plaintiff appeals from a judgment dismissing his complaint. The action is for damages for a breach of a covenant against incumbrances contained in a deed of land in Rockland county, dated November 1, 1899, made by William L. Brown (defendant’s testator) and his wife to the plaintiff, for an expressed consideration of $25,000.
The breach charged was: “That at the time of making and delivery of said deed, the said lands and premises were not free from all incumbrances, but on the contrary were subject to a tax theretofore duly assessed, charged and levied upon said lands and premises by the board of supervisors of the said county of Rockland, and the officers thereof in the sum of One thousand ninety-six and dollars ($1,096.12) and which tax was then remaining due and unpaid and was at the time of the delivery of said deed a hen and incumbrance by law upon the said premises.”
“ That this plaintiff was obliged to and did pay on the 28th day of February, 1908, the- sum of $1,096.12 to extinguish the lien of the tax aforesaid.”
These allegations were denied by the answer, although it was not disputed that plaintiff had paid to the county of Rock-land the sum mentioned. The precise issue sought to be raised by defendant was, as stated by the court and now quoted with acquiescence by the defendant, that the taxes were not, and were not shown to be, subsisting valid liens upon the property at the time of the purchase. The plaintiff, after proving the deed from Brown and wife to himself, read in evidence two deeds executed by the county treasurer of the county of Rock-land to the supervisors of said county, one dated September 29, 1904, and the other November 1, 1904, and both recorded in the county clerk’s .office on January 23, 1905. Each of these
The general principles governing such an action as the present are weH settled. The plaintiff’s damages are not limited to the amount that may have been due on the property when he purchased it, but what he may have been oblged to pay to relieve- his property of the burden. A covenant against incumbrances is treated as a contract of indemnity, and although broken as soon as made, if broken at all, nevertheless- a recovery (beyond nominal damages) is confined to the actual loss sustained by the covenantee by reason of the breach. If plaintiff, when he sues, has extinguished the incumbrance, he is entitled to recover the price he has paid for it. (Delavergne v. Norris, 7 Johns. 358; McGuckin v. Milbank, 152 N. Y. 297.) Purchase by the covenantee of an outstanding and superior title is sufficient to justify an action for damages. (Tucker v. Cooney, 34 Hun, 227.) And if the outstanding title be that of a purchaser at a tax sale for non-payment of a tax regularly assessed prior to the execution of the deed containing the covenant, the purchasers hold by a title superior
“ § 131. * * * After the expiration of one year from the time of sale the comptroller shall * * * execute in the name of the People of the State * * * a conveyance of any lands so sold by him for taxes and not redeemed, under his hand and official seal, and witnessed by the deputy comptroller, or state treasurer, which shall vest in the grantee an absolute estate in fee simple, subject to all claims which the State may have thereon for taxes or other liens or incumbrances, and which shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions of law relating thereto. After two years from the date of such conveyance such presumption shall be conclusive. Every certificate of conveyance executed by the comptroller under this article may he recorded in the same manner and with like effect as a conveyance of real estate properly acknowledged or proven.
“§132. Effect of former deeds. Every such conveyance heretofore executed by the comptroller, county treasurer, or county judge and all conveyances of the same lands by his grantee or grantees therein named, which have for two years . been recorded in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller, that shall have remained in force for two years after the last day allowed by law for redemption from such sale, shall be conclusive evidence that the sale and proceedings prior thereto, from and including the assessment of the lands, and all notices required by law to be given previous to the expiration of the time allowed for redemption, were regular and were regularly ■*676 given, published and served according to the- provisions of all laws directing and requiring the same-orin any manner relating thereto * *
By section 157 of the Tax Law, nowre-enacted in section 158 of the present Tax Law, which is-in article-7 thereof,, the provirions- of article 6 of said statute in respect to deeds - by the State Comptroller are made applicable to deeds by the county treasurer. The effect of the statute- above quoted is to relieve one claiming under a deed given by the Comptroller or county treasurer under the act from proving in detail all the acts-leading up to the sale. The deed itself is made presumptive evidence that all the proceedings leading, up to the sale, beginning with and including the assessment of the lands sold, and the giving of all notices required by law to be given were regular and in. accordance with law. The deed itself thus being made presumptive evidence of all that a claimant was required to prove before the passage of the act, is now sufficient proof thereof and there-is-no necessity for a claimant to go further and prove in detail that which is presumptively established by the .deed alone. Under the circumstances-of the present case it is- apparently also conclusive evidence, for the statute.,, although in some respects a curative one, is also a statute of limitations: (Halsted v. Silberstein, 196 N. Y. 1.) By the mere production of the deeds from the county treasurer to the supervisors of Bock! and county the plaintiff, therefore, offered at least presumptive evidence that a tax had been assessed upon the property before the date of his deed) and. that for non-payment of such taxes the property had been sole! and title- thereto vested in the county of Bockland.. This- was all he was required to prove to establish the fact that the county had acquired a superior and paramount title originating in taxes assessed upon the property before he received his deed,, and which,, therefore, violated the covenant against incumbrances. To justify a recovery it was only necessary to prove- that he acquired this paramount title and the amount he had been obliged to pay therefor. This he did. It was of no importance to show the amount of the taxes originally levied, because they did not constitute the measure of damages., ALL that was- material was to show that a tax was levied, and of this- the county treasurer’s -deed was
The judgment appealed from must, therefore, be reversed and a new trial granted, with costs "to appellant to abide the event.
Ingraham, P. J., Laughlin, Clarice and Miller, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.