122 N.Y. 53 | NY | 1890
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When the two years from the times of the respective sales had expired, and the premises were not redeemed, the right of the purchasers or their assigns was to take conveyances for the terms of years mentioned in the certificates, unless some irregularity was discovered in the proceedings prior to the sales, and in that case to have the purchase-money refunded. This right was effectually given by the terms of the certificate. (Brevoort v.City of Brooklyn,
This statute does not have the effect, when no notice is filed, *61 to extend the lien of a certificate given on a sale for taxes, beyond the time which it otherwise would continue; but it may be construed in such event to so extend the time within which a conveyance may be required, as to obviate the ten years' Statute of Limitations in seeking specific performance. The time to seek conveyances was not limited by any notice, and, within the meaning of the statute, if the certificates had been valid, the right to obtain such conveyance, unless terminated by such notice, would continue during the existence of the lien. It is, however, suggested that this statute has no application to the certificates in the present case, because they never were liens upon the premises mentioned in them. It is true they were not liens; but in the contemplation of the parties when the certificates were made, and until their invalidity was discovered, conveyances were to be made and taken pursuant to the contract; and while in that view it was assumed that such right continued, it may be seen that the discovery of the irregularity, which defeated the ability of the defendant to convey, produced the remedy to recover back the purchase-money. We have thus far proceeded as if no time was designated by the contract for its performance; and that, therefore, the discovery of such irregularity at any time during which the lien of valid certificates would continue, enabled the purchaser to assert his claim for reimbursement of the purchase-money. In view of the statute on the subject, as well as by the terms of a certificate like those here, the time of performance of the contract represented by it was on the expiration of two years from the time of the sale.
No redemption of the premises being in the meantime made, the rights of the parties to the certificate may have been treated as then fixed, so as to entitle the purchaser to a conveyance, unless some irregularity in the proceedings prior to the sale was discovered. In the latter event he would be entitled to repayment of the purchase-money. No such discovery in the cases in question having then been made, the collector of taxes and assessments may have fully discharged his duty and the liability of the defendant, by making to *62
the purchasers instruments purporting to convey the estates mentioned in the certificates. This was contemplated by the statute as it then was (Laws of 1854, chap. 384, tit. 5, § 33), and as it has since remained. (Laws of 1873, chap. 863, tit. 8, § 9.) So far as appears the collector, prior to the act of 1873, did not, nor did the registrar of arrears thereafter and before the discovery of the invalidating irregularity in the proceedings, make any such conveyance. There was nothing required by the statute, or by the certificate of the purchaser, to entitle him to the conveyance, or to move the collector or registrar of arrears to make it. And in that view the question may arise whether the omission to make the conveyances as well as to seek to obtain them, may not be treated as an extension of the time of performance of the contracts by the acquiescence of the parties. Time was not necessarily of the essence of the contract as between the city and the purchasers. And the defendant did not nor did the purchasers do anything to make it so, or to terminate the time of performance until in 1882, when the plaintiffs first demanded conveyances, which were refused. The contracts, therefore, as against the defendant continued effectual, open and unperformed until the discovery in that year of the irregularity in the proceedings prior to the sales, which invalidated the certificates from the beginning. (Gilbert v. Danforth,
In the view taken it is not essential to refer to the legislation had, and the action taken to supply the deficiency in funds for municipal purposes, occasioned by the invalidity of assessments which had been made, although it was the subject of consideration in the court below. But it may be observed that in 1883 provision was by statute made to make assessments of arrears of unpaid taxes assessed prior to July 1, 1882; and it was provided that all taxes, assessments and water rates unpaid, for which sales had been made, which sales were for any reason invalid, should be deemed to be in arrears from the date when they were levied or attempted to be levied or confirmed. (Laws of 1883, chap. 114.) It is claimed on the part of the plaintiffs that thereupon the city *64 proceeded to relevy taxes and assessments upon the premises and collected them, and thereby twice received payment of the moneys for which this action was brought. As found by the trial court, this was not necessarily so as to the whole amount. The court found that pursuant to that act of 1883, the city authorities levied upon each of the parcels of land a tax or assessment for some amount in lieu and stead of those in question, but that the amount so relevied did not appear. These facts tend to show that the city made such assessments, by way of relevy, as were deemed essential to supply the deficiency caused by or resulting from the irregularities in previous assessments, including those for which sales had been made, and that the statute of 1883 was passed to meet that necessity.
It is not seen that the plaintiffs were entitled to recover interest prior to the time the demand of payment was made. Nor were they entitled to recover anything by way of indemnity for costs incurred by them in defense of an action brought by one Barnard, in which they were made defendants, and in which was involved the question of the validity of the certificates as liens. They had no rights against the defendant, except such as were given by the contracts contained in the certificates, and those were to a conveyance unless irregularities were discovered in the proceedings prior to the sales, and in that case they were entitled to repayment of the amount of the purchase-money as represented by the certificates of which they had the title.
These views lead to the conclusion that the Statute of Limitations was not a bar to the action, and that the judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed. *65