Cromwell v. Wilson ( 1889 )

Pratt, J.

This is an action of foreclosure, and the questions raised relate principally to certain tax-sales. It seems to be conceded that if section 2, c. 239, Laws 1868, is not repealed by chapter 610, Laws 1874, then the mortgage is not invalidated by the tax-sale; but, even assuming it is not repealed, it becomes a serious question whether (if the taxes are duly levied, and the sales regularly made) the mortgagee has anything more than a right to redeem after the notice required by said section 2 of Laws of 1868, or, in other words, whether this section was not passed, among others, for the purpose of aiding the purchaser to perfect his title under the tax-sale. If such is the case, the plaintiff would have a right to foreclose his mortgage, but the property would have to be sold subject to the lien of the tax-sale. But the plaintiff here seeks, not only to foreclose his mortgage, but to try the question of the title of the purchaser at the tax-sale, and to have such asserted lien declared no lien, as against his mortgage, so that, assuming that the said section 2, c. 239, Laws 1868, is not repealed by the statute of 1874, the taxes may still be a lien, and the judgment rendered below unauthorized. It becomes necessary, therefore, to determine whether, in any view, the taxes and sales thereunder ever became an existing lien. We think the plaintiff was entitled to assail the assessment sales and leases in question, as the defendant McLean claimed the fee in hostility to the mortgage. If her contention was sound, it would render a judgment and sale of no value to the plaintiff. Why should the plaintiff be put to the expense of redeeming from the tax-sales, if there never was any valid tax-sale? If the tax was void, he could not tack the sum so paid upon his mortgage, or recover it back from the defendant. The alleged liens virtually destroy the security of the mortgage, and no good reasons seem to exist why they should not be determined in this action. It seems to be conceded that the taxes were originally assessed and levied contrary to law, but the defendant claims that the defects were mere irregularities, not jurisdictional; that the legislature had power to cure such defects and irregularities; and that it has done so by subsequent statutes. Some of the defects complained of, however, seem to us jurisdictional, and therefore not within the curative power of the legislature. The property never was properly taxed, inasmuch as the original owner, E. J. Wilson, was a non-resident, and the laiids were never designated as such, neither were they properly assessed after the death of E. J. Wilson to E. 0. Wilson, as trustee. It is also apparent that the description of the person was defective, as well as the description of the farm. The warrants were incomplete when signed by the board of supervisors, and the assessment rolls were not delivered, nor a copy thereof deposited, for examination as required by statute. These matters were jurisdictional. Clark v. Norton, 49 N. Y. 243; Wheeler v. Mills, 40 Barb. 644; Overing v. Foote, 65 N. Y. 263. The findings of fact are sufficiently supported by the evidence, and the conclusions of law found necessarily follow. We have examined the various exceptions, and find none which will warrant a reversal of the judgment. It is therefore affirmed, with costs.