Allen v. . City of Buffalo , 7 Trans. App. 169 ( 1868 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The assessment in question was illegal. (Laws of 1856, p. 143, § 20.) The certificate is substantially defective. The character requires, that a majority of those interested in paving and grading should petition. The certificate duly states, that a majority of those interested, in all the different and several kinds of work to be done, have petitioned. This certificate might be true, and yet, not one of the persons interested in the paving and grading, for which alone the petition is necessary, have joined in the petition. This question has deen decided in this court, in the cases of Lathrop v. The City of Buffalo, andDolan v. The Same. The only question in the case is, whether the assessment of this tax, and the sale of the premises to pay the tax, and the issuing of the certificate of sale to the defendant, created such a cloud upon the plaintiff's title, as justifies a court of equity to interpose.

This question is easily answered by reference to a few provisions of the defendant's charter, and the well settled rules of equity. In the first place, the charter makes the assessment a lien upon the lots, and it is provided by the thirty-ninth section of title five, that it shall not be necessary in any proceeding for the collection of any tax, or in any suit orproceeding, in which such tax shall come in question, to provethe validity thereof, or the regularity of any of the proceedingsby which the same should have been imposed, but said tax shall be deemed to be valid, regular and conclusive, etc., (Laws, 1853, p. 483, § 39.) And the twenty-fourth section of the same title declares, that the certificate of sale shall be presumptive evidence of the facts stated therein. (Laws, 1853, p. 480, § 24.) This certificate of the sale is required to contain a description of the property and the term for which it was sold, and the particular tax, and the amount thereof, with the interest and expenses for which the sale was made, and the time when the right to redeem will expire. (Laws, 1853, p. 477, § 16.) The owner of the land must redeem by paying, etc., within three months after receiving notice, and, if he do not, the common council are directed, and it is their duty to issue a declaration in writing, to the purchaser under the corporate seal, signed by the mayor, and attested by the clerk, containing a description of the premises, the fact of the assessment, advertisement and sale, and the period for which the premises were sold, and which declaration may be recorded as a lease of real estate. (Laws of 1853, p. 477, § 18.) This same section declares, that this declaration shall be presumptive evidence in all courts andplaces, that such tax or assessment was legally imposed, and, that due proceedings to authorize such sale were had. This lease was not issued when this suit was commenced, but the assessment and sale were all proved by the certificate of sale, and the charter makes such certificate presumptive evidence of the facts therein contained, and is evidence in the defendant's possession of a legal assessment and a valid sale, and consequently, the tax, being a lien upon the lots, creates a cloud upon the plaintiff's title, and as the defendant is relieved from showing the assessment whenever he has the certificate, and when he gets his lease may stand upon that alone; it presents a case for equitable relief, the rule being, that, when the claim of the adverse claimant to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved to establish the illegality or invalidity, then a court of equity will interpose to remove the cloud. (Ward v. Dewey, 16 N.Y. 519, 522;Scott v. Onderdonk, 14 id., 9), and I am not able to distinguish the case of Scott v. Onderdonk, from the case at bar. It decides the very question presented by this appeal, and I cannot think it has been overruled by this court. The case of Howell v. The City of Buffalo should not be regarded as overruling the case of Scott v. Onderdonk, as it certainly would overturn the well settled rule in equity, and overrule a long line of decisions in this State, without reviewing or considering them, and as the case has been withheld from the reports we ought to follow the case of Scott v. Onderdonk, which is sound, and fully sustained by the prior cases. The defendant cannot have any benefit from the objection taken here, that there is a defect of parties plaintiff, as he has not specified this as a ground of demurrer. (Code, § 144.) The demurrer must distinctly specify the ground of objection to the complaint, and the penalty of the omission is, it will be disregarded if he do not. (Code, § 145.)

The judgment should be affirmed.