Sanders v. . Village of Yonkers

Earl, J. It is conceded by the counsel for the respondent that the assessments upon which plaintiff’s property was sold were illegal and void. The trustees of the village caused the property to be sold by virtue of these void assessments, and it is not alleged in the complaint that they had done or threatened or designed to do any thing else. But it is alleged in the complaint that, by the charter of the village, the lease to be given by the trustees to the purchaser on the sale is presumptive evidence that the assessment was legally imposed, and that the proceedings and sale were regular. The village charter (Laws of 1868, chap. 673, tit. 8, § 4; tit. 9, §§ 35 and 38) provides that, for the non-payment of any tax, the trustees may cause the land assessed to be sold to the person who shall offer to take it for the shortest term; that they shall execute a certificate of the sale, which shall be recorded, and then become a lien upon the land; that the owner may have one year in which to redeem from the sale; that if the land is not redeemed within the year the trustees shall execute a lease to the purchaser, “ which shall be presumptive evidence that such tax was legally imposed, and of the regularity of the proceedings and sale,” but the title of the purchaser cannot become absolute against the owner, and he cannot be entitled to a lease until .he shall have given at least sixty days’ notice, in writing to the owner, specifying the property sold, and the tax or assessment for which it was sold, and the amount thereof. There is no allegation in the complaint as to the time *492 when the sale took place, and it is not alleged that any certificate of the sale was given, nor that the year for redemption had expired, nor that the sixty days’ notice had been given, nor that the purchaser claimed any lease, nor that the trustees threatened or designed to execute any. The proceedings may never he perfected, and may be abandoned on account of their illegality, and a lease may never he given. These facts do not present a case for equitable relief to prevent the execution of a lease. It should appear that there was at least some imminent danger that a lease would be given, and that the interference of a court of equity was necessary to prevent a cloud upon title. A court of equity may, doubtless, entertain a suit not only to remove a cloud upon title, but also to prevent one. But in the latter case it must appear that there is a determination on the part of the defendant to create the cloud. (Pettit v. Shepherd, 5 Paige, 493 ; Oakley v. Trustees of Williamsburgh, 6 Paige, 262.) It is not sufficient that the danger is merely speculative and potential. In this view of the case I have assumed, as most favorable to the plaintiff, without deciding it, that a lease executed upon a sale for an unpaid assessment, would have the same effect as a lease executed upon a sale for an unpaid tax. But it is claimed that the assessment was, by the charter, a lien (title 9, § 21), and hence that this action can be maintained to remove that as a cloud upon title. But the difficulty as to this claim is, that before the lease shall be given there is nothing in the charter making the assessment, when completed, presumptive or prima faeie evidence, of itself, of its regularity, and "there is no allegation in the complaint that the assessment is upon its face regular, or that there is any record which makes it prima facie or presumptive evidence of any thing. In such a case it is well settled that an action to vacate an assessment and remove it as a cloud upon title, cannot be maintained, (Scott v. Onderdonk, 14 N. Y., 9; Heywood v. City of Buffalo, id., 538; Hatch v. City of Buffalo, 38 id., 276 ; Allen v. City of Buffalo, 39 id., 386 ; Croohe v. Andrews, 40 id., 547.) *493 Hence I can see no grounds, upon any facts stated in the complaint, for the equitable relief demanded. But the other ground of demurrer, that “ there is a defect of parties defendant, in the omission of the person who purchased at the sale ” alleged in the complaint, is equally fatal to the complaint. (Code, § 144.) This is a defect which appears upon the face of the complaint. The purchaser has an interest in the assessment, and it certainly needs no argument to show that he should be a party to a’suit ^brought expressly to vacate it and to restrain the village from giving him the lease to which he may be entitled. This is a special demurrer (as all demurrers under the Code are required to be) pointing out the precise defect; and even under the old system of practice such a demurrer was proper, although the complaint did not allege that the absent party was living. (Burgess v. Abbott, 6 Hill, 135 ; Eaton v. Baloom, 33 How. Pr. R, 80.) But it may fairly be inferred from this complaint that the purchaser was living, as it was a portion of the prayer for relief that the defendant be enjoined from executing the lease to the purchaser. The judgment must, therefore, be affirmed, with costs. All concur. Judgment affirmed.