Lindlots Realty Corp. v. County of Suffolk , 278 N.Y. 45 ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In addition to the facts heretofore set forth, it appears that the county acquired title to these lots between 1915 and 1922 and did not resell them to the plaintiff until 1926. Thus, from four to eleven years elapsed between the time that the county purchased these lots at the tax sales and the sale to the plaintiff. In 1932, plaintiff made a conveyance of part of these properties to Brogreen Corporation. The latter sought registration under the Torrens Act. (See Real Property Law, art. 12, Cons. Laws, ch. 50.) In that proceeding in 1933, the defendant county interposed a verified answer, asserting that the applicant had no title whatsoever in the property for the reason that the statutory notice required by the Tax Law (Cons. Laws, ch. 60) had not been given at the time of the tax sales, and that as a result the tax sales were null and void. Accordingly the proceedings for registration were dismissed at the request of the county. Early in 1933 the defendant instituted condemnation proceedings affecting some of these parcels for an extension of the Sunrise highway. In such proceeding this defendant county contested the right of the plaintiff to an award, contending that the sale at which the county acquired title to this property was defective jurisdictionally, and, therefore, the conveyances to the plaintiff were void. This plaintiff, having learned in these proceedings of the invalidity of its titles, declined to accept the awards made and elected to rescind the transaction and commenced this action.

At the trial both sides proceeded upon the assumption that no question of fact remained in the case. The specific contentions urged by the county at the trial were two, namely, that while it was conceded that the deeds in 1926 did not convey good title, the defects had been cured in 1932; secondly that if, on the other hand, no title had vested, the action to recover was at law and was barred by the six-year Statute of Limitations. In addition the trial court considered the defense of caveatemptor.

The trial court found not only that all the representations made by the county of Suffolk were duly authorized, but that they constituted and were intended by the county of Suffolk to constitute a substantial inducement to the purchaser acting for and on behalf of the plaintiff to accept the conveyances and pay over to the defendant county of Suffolk the total consideration of upwards of $76,000; that the representations so relied upon were so substantial and fundamental as, if false, to defeat the object of the parties and destroy the essential objects of the conveyances. Judgment was entered for plaintiff. Upon appeal to the Appellate Division, defendant urged (1) that the action was barred by the five-year Statute of Limitations contained in the Tax Law (§ 132); (2) that the plaintiff was not the immediate purchaser from defendant and hence could not maintain an action for rescission, and (3) that the principle of caveat emptor applied. The judgment of the Trial Term was affirmed unanimously.

The recitals in the deeds, that the notices of such tax sales had been published at least once in each week for six weeks immediately preceding such tax sales were recitals of fact. (Eaglesfield v. Marquis of Londonderry, 4 Ch. Div. 693;Burns v. Lane, 138 Mass. 350.)

The claim is raised now that the representations incorporated in the deeds were not authorized by the resolution of the Board of Supervisors which authorized the sale and, therefore, were not binding upon the county and that the county may keep the money and repudiate the representations. While this claim might have been urged under the general denial in the answer it was not raised or mentioned at the trial nor in the motion to dismiss. Hence this issue would not seem available upon appeal. Are we able to say that if plaintiff had not been disarmed and lulled into inaction by the abandonment of this issue at the trial, this record might not have contained some further evidence bearing upon the authority of the County Treasurer to execute the deed in exactly the form in which it was executed? If the form of deed as in the case at bar had been used for a long period of time, the resolution as passed by the Board might be construed as granting the authority assumed by the County Treasurer. We cannot say that other authority might not also have been shown. It is to be noted that nothing in the resolution precluded the County Treasurer from making the representations which he made. The resolution authorized him to negotiate a sale in his discretion, the representations were germane to the transaction, and nothing in the resolution prohibited him from representing how the lands were acquired. Ordinarily the difference between a quitclaim deed and a full covenant warranty deed is the omission of the usual covenants, but it does not follow that a statement as to how the lands were acquired should also be omitted. In fact the authority of the County Treasurer, by the terms of the resolution, was limited to a sale of lands acquired at a tax sale, and in order to be within the authority conferred, the deed should show upon its face that the lands were acquired at a tax sale. In fact some charters require such recital in similar deeds. (See Coffin v.City of Brooklyn, 116 N.Y. 159.)

Assuming, however, that the defense is here on the merits, it is undisputed that a municipality cannot be made liable for breach of contract, or services rendered, or sales price, or even for use and occupation of property acquired, when an official of the municipality has exceeded his power or authority. (Village of Fort Edward v. Fish, 156 N.Y. 363; Donovan v. Mayor, 33 N.Y. 291; Supervisors ofRensselaer County v. Bates, 17 N.Y. 242.)

But this principle has no application to an action brought in equity for rescission, to recover moneys acquired through misrepresentation or fraud. Although the misrepresentations in the deeds were innocently made, plaintiff may bring an action in equity for rescission and recover. (Town of Lyons v.Chamberlain, 89 N.Y. 578; 1 Bigelow on The Law of Fraud, § 8.) Since in the case at bar the object sought is money still in the hands of the municipality, it does not detract from the application of the principle that the rule does not apply if the parties cannot be restored to their original positions. (Lyddy v. Long Island City, 104 N.Y. 218.)

It is argued, however, that this rule has no application in the case at bar for the reason that the plaintiff had no right to rely upon an unauthorized act of a public official, since the authority of the County Treasurer was a matter of record and plaintiff is conclusively presumed to have known the extent of this authority. While this may preclude an action for deceit, it does not bar rescission. (American Law Institute, Restatement of the Law of Agency, § 258, comment c; § 259; Restatement of the Law of Restitution, § 62, comment b.) A governmental body cannot repudiate the act of the official and retain the money received as a result of the act. Although, as noted, no one may acquire property from a county through an unauthorized act of its officials, yet here the shoe is on the other foot, and the county is seeking to retain moneys acquired through misrepresentations. A municipality, no more than an individual, may not enrich itself through misrepresentations, authorized or unauthorized. (Bloomquist v. Farson, 222 N.Y. 375; Smith v. Countryman,30 N.Y. 655; Vail v. Reynolds, 118 N.Y. 297. Cf. American Law Institute, Restatement of the Law of Restitution, § 62, comment b.) If this were not so, what limit would exist to the means through which a municipality might acquire money.

Nor does the rule of caveat emptor apply. The county had the option to sell this property by bargain and sale deed, with the mere recital that it was acquired at a tax sale and without other representation. In such case, the doctrine of caveat emptor would apply. The defendant, however, through its officer, chose to obtain such advantages as it could by selling this property through additional representations which turned out to be false. In such case the doctrine of caveat emptor obviously would not apply. The case of Traktman v. City of New York (241 N.Y. 221), relied upon by the defendant, involved merely the running of a statute of limitations. In Coffin v. City of Brooklyn (116 N.Y. 159) the recitals in the deed were different than in the case at bar, and plaintiff proved only a mistake of law and not one of fact.

It is further urged that by reason of lapse of time the plaintiff has now obtained a valid title although it did not possess good title in 1926. It was entitled, however, to the valid title in 1926. The sale was one transaction, not two separate transactions. It was one transaction in which there were misrepresentations made and money paid in the belief that these representations were true. If plaintiff were seeking damages for breach of warranty or specific performance, he could not succeed. Plaintiff is not concerned alone with the giving of the deed, but with the giving of the deed induced by the representations as a result of which plaintiff made the purchase.

The defendant continues to urge that section 132 of the Tax Law, containing a five-year statute of limitations, precludes recovery. It is sufficient to say that a statute of limitations, to be availed of, must be pleaded. Such pleading was lacking in the case at bar. Moreover, this statute does not apply to the present action. This section regulates tax sales by the county, whereas other sections of the Tax Law relate to sales by the county of land which it has previously acquired at tax sales. (Tax Law, §§ 123, 151.)

It is likewise urged that plaintiff, not being the original grantee, may not bring this action in rescission. At the trial plaintiff sought to show that the present plaintiff was the real party in interest from the beginning, but was precluded from showing this fact because of the insistence of the trial judge that defendant raised no issue in this regard, and counsel for the defendant acquiesced in this statement and ruling. Under such circumstances defendant is now precluded from urging this issue in this court.

It follows that the judgment appealed from should be affirmed, with costs.