United States v. General Douglas MacArthur Senior Village, Inc., D.C.R. Holding Corp.

J. JOSEPH SMITH, Circuit Judge:

This appeal involves cross-claims raised in an action reported as United States v. General Douglas MacArthur Senior Village, Inc., 337 F.Supp. 955 (E.D.N.Y.), rev’d, 470 F.2d 675 (2d Cir. 1972), cert. denied sub nom. County of Nassau et al. v. United States, 412 U.S. 922, 93 S.Ct. 2732, 37 L.Ed.2d 149 (1973). In the principal action, the United States, as the holder of a mortgage superior in interest to the tax liens purchased on the same property by the appellants, was permitted to foreclose upon that property of General Douglas MacArthur Senior Village, Inc.; there had been a breach of the mortgage agreement. The cross-claims presently under review constitute attempts by the defendant tax lienors, D. C. R. Holding Corporation and four individual parties, to secure a refund of their purchase price for the liens from Nassau County, the Village of Hempstead and Town of Hempstead. Since the amount due on the government’s mortgage exceeded the proceeds of the foreclosure sale, the liens are now totally worthless. Judge Jack B. Weinstein of the Eastern District of New York dismissed the cross-claims on a motion for summary judgment. 366 F.Supp. 302 (1973). By reason of jurisdiction of the principal claim, jurisdiction over these ancillary claims obtains without independent jurisdictional basis. See, R. M. Smythe & Co. v. Chase National Bank of City of New York, 291 F.2d 721, 724 (2d Cir. 1961); United States v. Championship Sports, Inc., 284 F.Supp. 501, 509 (S.D.N.Y.1968); United States v. Manufacturers Hanover Trust Co., 231 F.Supp. 160, 162 (S.D.N.Y.1964); 3 J. W. Moore, Federal Practice jf 13.36, at 13-925 (2d ed. 1974). After consideration of the New York law governing these state law claims, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we conclude that these cross-claims are without merit and affirm the judgment.

The appellants’ several briefs basically expound three alternative grounds for reversal. One, predicated on the tax-exempt character of the MacArthur property, fails by reason of collateral estoppel, for we held in resolving the principal claim that the property was in fact taxable. United States v. General Douglas MacArthur Senior Village, Inc., supra, 470 F.2d 675 at 680. The appellants’ two other objections will require more detailed discussion; they are: under the New York Real Property Tax Law (RPTL), McKinney’s Consol.Laws, c. 50-a, a subdivision of the state selling a tax lien necessarily warrants the lien’s priority; and under the common law of contractual obligation, the sale of worthless tax liens gives rise to an action for rescission.

I. WARRANTY OF PRIORITY

RPTL § 1464(6) incorporates a warranty of lien validity into every sale of a tax lien by municipalities.¹ A tax lien may be valid, however, yet prove to be worthless because a superior lien on the property leaves no residue to which the inferior lien may attach. To protect against this latter possibility — one realized in the case under review — it would be necessary for a tax lien purchaser to require of the seller a warranty of priority. The risk of loss for sale of a lien rendered less valuable, or valueless, by a prior interest would then remain with the seller; the purchaser would be entitled to rescission.

Foreclosed by our prior decision in this ease from impugning the lien’s validity, swpra, and not the beneficiaries of an express warranty’ of priority, the appellants thus seek to establish that a statutorily implied warranty of priority accompanied their transactions. Specifically, they rely on RPTL §§ 1464(3), (5), for the proposition that a municipality selling a tax lien implicitly warrants that it can transfer title and possession, subject only to claims of the village, county or state. These provisions are set out in the margin.² The encumbrance at issue which rendered the tax liens valueless belonged to the federal government. As such, it was admittedly outside the express exceptions to the conveyance of a fee simple absolute required by these provisions.

Three considerations, however, counsel against the application in this instance of expressio unius, exclusio alterius, for which the appellants in effect contend. ' First, the certificate of sale received by each appellant made the lien purchased subject to superior tax liens of “Sov-ereignties” and other municipalities. This express contractual reservation does not decide the issue against the appellants because their interest was superseded by a mortgage, rather than tax lien, held by a sovereignty. On the otheh hand, this recognition of sovereign claims does infer that an implied exception in RPTL § 1464(3) for federal liens — clearly, liens of a “sovereignty” —would comport with custom and usage and the basic business understanding.

Secondly, one cannot ignore the broader context within which the statute must operate: a federal system in which supremacy resides with the center. U.S. Const, art. VI. Since the state plainly lacks the power to subordinate a federal interest superior under federal law, New Brunswick v. United States, 276 U.S. 547, 48 S.Ct. 371, 72 L.Ed. 693 (1928) ; cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the legislature undoubtedly assumed that an exception in subsection (3) for the United States was understood. The inference, then, that the United States is implicitly included among the superior interest-holders listed in § 1464(3) follows. We would hesitate to find it excluded on less than express terms. Cf. In re Gruner, 295 N.Y. 510, 524, 68 N.E.2d 514 (1946) ; Riverhead Estates Civic Ass’n v. Gobron, 134 N.Y.S.2d 13, 16, 206 Misc. 405 (Suffolk County Ct.1954).

Finally, in RPTL § 1464(6), supra, fn. 1, the New York legislature specified various conditions (errors or irregularities in assessment, levy or collection proceedings) justifying a refund. Recognition of these circumstances of lien invalidity as a basis for rescission may seem no more than equity would require. In fact, however, this provision represents a notable advance from the governing law of caveat emptor. See the opinion below, 366 F.Supp. 302 at 305-306. If the New York legislature intended to make the even greater departure from the common law of creating a warranty of priority, we must assume that they would have done so with no less clarity.³

In sum, contrary to the appellants’ assertion, RPTL §§ 1464(3), (5), require a municipality to warrant that the real property conveyed in consideration of the purchase of the tax lien represents all within the state’s power to convey. Since the appellees were powerless to overcome the federal government’s mortgage, their failure to convey anything of value to the appellants was not a breach of the duty imposed by § 1464. The statute offers no basis for rescission of the contested purchases.

II. CONTRACTUAL FRUSTRATION AND IMPOSSIBILITY

The common law of contract excuses a party from performing his contractual obligations because of “impossibility of performance” or “frustration of purpose.” See generally, 6 A. Corbin, Contracts § 1322 (1962). In general, impossibility may be equated with an inability to perform as promised due to intervening events, such as an act of state or destruction of the subject matter of the contract. The doctrine comes into play where (1) the contract does not expressly allocate the risk of the event’s occurrence to either party, and (2) to discharge the contractual duties (and, hence, obligation to pay damages for breach) of the party rendered incapable of performing would comport with the customary risk allocation. Essentially, then, discharge by reason of impossibility — as well as the concomitant remedy (to the discharge) of rescission —enforces what can reasonably be inferred to be the intent of the parties at the time of contract.

Frustration of purpose, on the other hand, focuses on events which materially affect the consideration received by one party for his performance. Both parties can perform but, as a result of unforeseeable events, performance by party X would no longer give party Y what induced him to make the bargain in the first place. Thus frustrated, Y may rescind the contract. Discharge under this doctrine has been limited to instances where a virtually cataclysmic, wholly unforeseeable event renders the contract valueless to one party. See, Alfred Marks Realty Co. v. Hotel Hermitage Co., 170 App.Div. 484, 156 N.Y.S. 179 (2d Dept. 1915); Krell v. Henry [1903] 2 K.B. 740 (C.A.); 6 A. Corbin, Contracts, supra, at § 1355.

Against the backdrop of this basic doctrinal distinction between impossibility and frustration, the lack of foundation for the appellants’ invocation of common law becomes apparent. Their argument may be summarized as follows : the municipalities’ inability to convey title and possession to the MacArthur property due to a foreclosure proceeding by a superior lienor was an event not contemplated by either the seller or purchaser of the tax lien; and this unforeseeable event left the municipalities without the means to perform their part of the contract, thereby discharging the purchasers’ duty to perform (i. e., make payment) and providing the basis for rescission.

The corporate appellant places this argument under a frustration of purpose rubric, while the appellant Schwartz denominates it impossibility of performance. Their disagreement is illuminating in that the argument itself fails under either heading because it is such a confused mix of both.

A party invokes impossibility to excuse its own inability to perform. But obviously the appellants can perform because they already have. On the other hand, impossibility may apply to their situation insofar as impossibility may be felt to have discharged the municipalities from performing and thereby created a situation where the appellants would benefit from the rescission secured by the sellers. Cf. 6 A. Corbin, Contracts, supra, at § 1353. This tack implies, though, that the municipalities’ failure to deliver title and possession to the MaeArthur property was evidence of non-performance and invitation to mutual rescission; and this thesis of course assumes the very point which the appellants need to prove — that the appellees’ duty included delivery of title and possession.

Insofar as a frustration theory inheres in the appellants’ argument, it too partakes of a certain circularity. Thus, to argue that the foreclosure by the superior lienor triggers the frustration doctrine is implicitly to characterize that event as cataclysmic. In fact, however, the risk of this event occurring is one which caveat emptor had long since placed with the purchaser. Broadly speaking, the thrust of the common law of tax lien sales, a law notably severe to purchasers, was to place any events depriving the transaction of value within the reasonable contemplation of the parties.

Whether the appellants’ contractual defense is cast in terms of impossibility or frustration, it proves inadequate. Their argument essentially relies upon the existence of a warranty of priority. Accordingly, the appellants’ failure to establish such a warranty, see I, supra, precludes their success on this ground.

The appellants may be correct, however, in maintaining that sound economics counsels recognition of a warranty of priority. Perhaps lack of this warranty does impose an unfair and unmanageable burden on the purchaser: To protect himself from loss, he must make a title search of any property before purchasing a tax lien on it. (Here a search would have disclosed the government mortgage.) And perhaps a municipality’s failure to warrant priority may in the long run be less profitable for it than warranting priority, for the burden and expense of making these title searches — or the risk that attends a purchase made without a prior search— may keep would-be purchasers out of the tax lien market. Nevertheless, this court is not the forum to which these considerations are properly addressed. The New York state legislature has not seen fit to date to override by statute the common law rule that the seller of a tax lien does not warrant its priority. It has carved out other exceptions in the tax lien area to the common law of caveat emptor. It is not for this court to decide, however, that having gone thus far, the legislature must go still further. Similarly any waiver of federal mortgage priority in tax lien cases is for the Congress, not this court.

The appellees did not warrant the priority of the tax liens which they sold to the appellants, nor did the appellees’ failure to convey title and possession to the MaeArthur property free from the lien of the government mortgage discharge the appellants’ duty to pay the purchase price for the liens under an impossibility of performance or frustration of purpose theory. The district court properly granted the appellees’ motion for summary judgment.

Affirmed.

1 . Xew York Real Property Tax Law § 1464: 6. In the event that any grantee under such conveyance is unable to obtain possession of the real property conveyed to him by reason of any error or irregularity in the assessment thereof, in the levying of a tax, or in any proceedings for the collection of any tax, the board of trustees shall refund to the purchaser the money so paid with interest, the same to be audited and paid as other village charges.

2 . New York Real Property Tax Law § 1464:

3. If tlie real property described in such notice is not redeemed within the time limited, the village treasurer shall, upon written application and the surrender of the certificate of sale together with proof of service by mail of the notice to redeem, or upon application by the board of trustees of the village with such proof of service, execute and deliver to the purchaser or village a conveyance of the real property so sold, the description of which shall include a specific statement of whose title or interest is thereby conveyed, as appears on the record, which conveyance shall vest in the grantee an absolute estate in fee, subject, however, to all claims the village, county or state may have thereon for taxes, liens or encumbrances.

5. The grantee or his assigns, or the village and its assigns, as the case may be, shall be entitled to have and possess the real property conveyed from and after the execution of such conveyance and may cause any occupants thereof to be removed in the same manner and by the same proceedings as in the case of a tenant holding over without permission of his landlord.

3 . Appellant Schwartz appears to urge RPTL § 1464(6) as an independent basis for refund. In this regard, we reiterate that this subsection literally addresses only problems of lien validity, not lien priority. Furthermore, for the historical reasons outlined immediately above, we reject any invitation to imply this additional basis for refund into § 1464(6) as a matter of consistency with general equitable principles.