10 N.Y.S. 830 | N.Y. Sup. Ct. | 1890
Ira O. Miller and wife, on the 1st of July, 1872, conveyed a piece of property in the city of Brooklyn to Robert McLoughlin. The deed contained a covenant of warranty against all incumbrances except a mortgage of $1,900. The legislature had, before this, authorized the improvement of Pourth avenue. The property along the route was required to pay $150,000 of the cost of the improvement, one-twentieth part of which was to be levied and collected in each year for 20 years. $175,000 of the cost of the improvement was to be collected in 1870 from the property in the first 12 wards of the city. All taxes and assessments imposed upon the lots in question, before the delivery of the deed, were paid by defendant. The question therefore is, were the installments of the one-twentieth part of $150,000, payable each year, an incumbrance? We think the successive installments, although fixed by the legislature in advance, a part of the tax for the years in which they were collectible, and that they were not liens on the land from the beginning, within the covenant against incumbrances. The tax was fixed so far that a certain sum was to be raised each year, but every year brings its burdens. There are various sums which are required to be annually collected, but the land is not incumbered thereby, until the tax levy is actually made, and such taxes are a lien on the land from the date of the confirmation of the yearly tax levy only. The evidence does not show an assessment for the entire number of yearly payments in 1870. A fair inference from the fact proven is that the first payment only was made a lien on the land. In order to arrive «t the amount of the first payment ail the cost of the work did appear, but it