The relief sought in this action is the cancellation of a lease executed and delivered by the comptroller of *361 the city of 27ew York upon a sale for unpaid taxes. It is admitted by the defendant, who is the assigneе of the lease, that it is void because the sale included an illegal charge for interest. It would seem that such an admission should at once end the controversy and the lease be promptly cancelled, but some ulterior purpose appears to lie behind the apparent litigation, and serves to prolong it. For, notwithstanding the defendant’s concession, he resists the relief sought upon the double ground that there is no сloud on the one hand and no title to be clouded on the other.
• The claim that the lease constitutes no cloud is founded ■ upon the provisions of the statute which make the lease inchoate; ineffective to produce a right of possession or establish a
title;
until a specified notice to redeem has been given to occupant or owner, and a certificate of which, signed by the comptroller, must acсompany the record of the lease. - (Laws of 1871, ch. 381, §§ 13, 14, 15 and 16.) It is undoubtedly true that, until that certificate is given, the right of the lessee is imperfect and no title passes by the conveyance.
(Lockwood
v.
Gehlert,
Hor is it true that the invalidity of the lease appears upon" its face. It shows no detаils of the amounts for which the salé was made, and the presumptions attending it make proof *363 of such details unessential to the right of the lessee. It is only by evidence outside of the lease itself that its invalidity can be made to appear.
I think, therefore, that enough was shown to justify the intervention of equity to cancel the lease even if considered only as a threat to create a cloud, and if the action be regarded аs one not to remove but to prevent a cloud.
The further controversy appears to me to be quite extraordinary. It is over the purely legal question whether the plaintiff’s title was or was not good and perfect, and the equity action became busy with the exact issue belonging to' an action of ejectmént. The plaintiff alleged that he was the-owner of the land as he was bound to allege, and the defendant denied the аllegation. If thereupon the plaintiff, as a-condition of equitable relief, is compelled, not only to show possession which raises a presumption of title, but to go-beyond that and disclose and defend the actual title under which he holds, with the burden of establishing it resting on-him, and every weakness in it inuring to the adversary, and the final judgment conclusive on the question, he is stripped of every advantage due to his possession and which would be-his in an аction of ejectment. I incline to the opinion that this plaintiff was not bound to show or defend his paper title ; that he might safely have rested upon his possession and the-presumption of ownership which the law attaches to it, and was not required to subject his chain of title to the attack of his adversary. But I do not decide that question, or bind, my own later judgment, because in this case no such objection appears; the paper title was disclosed and fought over and passed upon, without objection or protest; and so the question is presented whether it is good or not.
The plaintiff’s chain of title was attacked, first, at the conveyance by Rollins to Mooney, Stansbury and Queripel,. described as trustees of the Sew York City Land Association,, but, nevertheless, running to them “ as joint tenants, to the survivor of them, his heirs and assigns forever.” It does not appear that the assоciation was a corporate body or capable as:
*364
such of taking a legal title. It must be assumed to have been a partnership of individuals associated for dealing in real estate. Who they were we do not know, but we must presume that the three grantees were members of the association holding the legal title for the benefit of others as well as of themselves. They had, therefore, or may have had, a benefiсial interest, and were not mere trustees holding the bare and ¡naked legal title. The sections of the Revised Statutes which take away the nominal title and vest it in the beneficiary intended do not apply to a casе where the grantee has himself •a beneficial interest in the grant and is something more than the holder of the mere nominal title. (1 R. S. p. 728, §§ 49-58 ;
N. Y. Dry Dock Co.
v.
Stillman,
Ror was the deed to plaintiff void because at its date .'Townshend wаs in possession and holding adversely. If he held under the comptroller’s lease his possession was not adverse to plaintiff’s title.
(Moores
v.
Townshend,
22 J. & S. 249;
Bedell
v.
Shaw,
But he further relies upon the decision in that action as ■conclusive against the title now asserted by the plaintiff. *365 Judgment then went for the defendant and is described as upon the merits. It settled that Moores at that time and upon the then existing facts had no valid title, such as tо defeat Townshend’s possession. The judgment established no-title in anybody, for the defendant neither pleaded nor proved one in himself, but stood, as he had a right to stand, on his possession. The certificate of the Superior Court shows that the plaintiff proved no possession either in himself or in any-of his grantors, and he may have been defeated for that reason and that alone. But the present plaintiff has obtained possession аnd changed the situation. The previous adjudication that a title in the air was bad, does not destroy the title subsequently anchored to the possession. The conditions are different: the questions are'not the same. The аrgument of the General Term shows, I think very fairly, that the judgment in-ejectment is conclusive only as to the title established in that action, and that the judgment rendered did not' establish any. The defendant pleaded none; the plaintiff prоved none. If the court had decided in that case that the-paper title disclosed was at any point defective or unsound,, the decision would conclude us, but it does not so appear,. The court may havе held it to be good in and of itself provided only that there was possession somewhere under it.. There is such possession now, and a decision on the present facts in favor of the plaintiff does not necessarily сontradict the previous judgment against his grantor. At all events, the-defendant was bound to show a decision adverse to and destructive of the title now asserted in some of its essential elements, but has not done so. In that respect we agree with, the reasoning of the General Term.
It follows that the judgment should be affirmed, with costs..
All concur.
Judgment affirmed.