
    Louisa P. Chard et al., Adm’rs, App’lts, v. Horatio N. Holt et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department, Filed
    
    
      April 13, 1892.)
    
    ‘Taxes—Notice to bedeem—Estoppel.
    Certain land upon which plaintiffs held a mortgage was sold for taxes of two different years, and the purchaser thereat conveyed his rights therein to defendant. Within two years from the last sale plaintiffs filed notice that they were entitled to be served with any notices required by law of the purchaser and especially by the purchaser at the last mentioned sale; they having no knowledge of any previous sale. Defendant then served notice on them to redeem from the last sale ; whereupon they paid the amount thereof to county treasurer and defendant received and retained the same. Reid, that whatever rights defendant had under the prior sale were surrendered in the recognition by him of plaintiffs’ right to redeem under the last sale, and that he could not claim title to the lands by virtue of the prior sale.
    Appeal by the plaintiffs, Louisa P. Chard and Greorge A. Cane, administrators with the will annexed of Eufus C. Palmer, deceased, from a j udgment entered in Chautauqua county, April 8, 1891, on the decision of the court at circuit in an action of ejectment tried, by consent, without a jury.
    
      Thomas J. McKee, for app’lts; Silas W. Mason and 8. A. Simons, for resp’ts.
   Macomber, J.

The plaintiffs’ title to the lands, for the possession of which this action was brought, is derived by them through .an action for, and a judgment of foreclosure and sale of mortgaged premises, at which sale they, as administrators, became the purchasers.

The title of the principal defendant, Horatio N. Holt, is derived from certificates of tax sales issued to him, one from a tax sale which occurred on the 27th day of October, 1885, and the other November 23, 1887.

The facts in this action as.agreed upon, and as found by the •court, are briefly as follows: On the first day of June, 1872, Amelia Holt, the owner of the premises, executed a mortgage thereon to Eufus C. Palmer. The debt secured by the mortgage having become due and payable, proceedings were taken by these plaintiffs, who aré the administrators with the will annexed of Eufus 0. Palmer, to foreclose the mortgage, and a notice of pendency of such action was filed in the proper county, December 4, 1885. Such proceedings were had therein that a judgment •of foreclosure and sale was rendered in that action on the 29th •day of August, 1889, and a sale of the mortgaged premises was had February 21, 1890, at which sale the plaintiffs, being the highest bidders therefor, purchased the property, and a deed was properly executed to them by the sheriff of Chautauqua county. Having this title, and finding the defendant Horatio N. Holt and •others in possession, a demand of possession of this land was made upon them which was refused, and accordingly this action, to recover the possession of the lands in dispute, was begun.

The defense, which prevailed upon the trial, rests upon a tax title in Horatio N. Holt. These lands were sold for county taxes on the 27th day of October, 1885, on a levy of taxes made in the year 1884, upon an assessment thereon against Amelia Holt, who was at that time the owner. One T. Charles Wilson became the purchaser at such tax sale, and he received the certificate from the •county treasurer of Chautauqua county on the 27th day of October, 1887, and subsequently such county treasurer executed and delivered to him a deed of the premises to which he seemed to be entitled under such sale, which was recorded on the 14th day of May, 1888.

Another sale for like taxes was had finder an assessment made in the year 1886, and a' sale of the same premises took place on the 23d day of November, 1887, under the direction of the county treasurer, and the same lands were again struck down to T. Charles Wilson, to whom a proper certificate of sale was subsequently delivered.

Wilson, on the 17th day of January, 1888, by an instrument in writing sold and assigned this certificate of sale, and all his rights thereunder, to the defendant, Horatio N. Holt; and on the 15th ■day of May of that year, Wilson quit-claimed the premises to Holt by a deed recorded on that day. But Wilson had no title to the land, except that derived by him by virtue of the tax sales hereinbefore mentioned.

On the 11th ,day of November, 1889, and within .two years after the sale for the taxes of 1886, the plaintiffs, as such administrators with the will annexed, filed a notice as mortgagees of the-premises, which is set out in the case, to the effect that they claimed to be entitled to be served with any notice required by any provision of law by the purchaser or purchasers of the premises at any sale thereof made for taxes, and particularly of a. notice required to be given by such purchaser or purchasers attire sale made on the 23d day of November, 1887, for the taxes-of 1886.' Thereupon, and on the 17th day of December, 1889,. the defendant Holt served on the plaintiffs, and on the same day filed a notice in the county treasurer’s office requiring the plaintiffs to redeem these lands from the tax sale made on the 23d day of November, 1887, for the taxes of 1886. On the 25th day o£ January, 1890, the plaintiffs paid to the county treasurer of Chautauqua county the whole amount of these taxes, being $358.59 ; and the treasurer subsequently handed over such money to the defendant Horatio N. Holt, who received it in pursuance of such notice to redeem, and he has since retained such money as his own. At the time of the service of the notice to redeem, this defendant, Horatio N. Holt, had notice of the existence of the above mortgage, and of the fact that there had been a judgment of foreclosure therein, but the sale of the mortgaged premises to the plaintiffs was not had until February, 1890, two months later.

Upon the payment by the plaintiffs of the above mentioned sum of money (viz., $358.59) the county treasurer executed and. delivered to them a certificate of redemption in due form of law.

Upon these facts the learned justice at the circuit held that the plaintiffs had failed to make a case entitling them to the possession of the premises, and accordingly dismissed their complaint. In this conclusion we cannot concur. In our view of the case, whatever rights the defendant Horatio N. Holt may have had by virtue of the sale made in the year 1885, such rights were entirely surrendered in the recognition by him of the right which the plaintiffs had to redeem under the tax sale made November 23, 1887, for the unpaid taxes of 1886. Mr. Holt having accepted the money deposited by the plaintiffs "with the county treasurer for the redemption of the taxes laid upon these lands in 1886, it would seem to follow, necessarily, that the plaintiffs are subrogated to any and all of Mr. Holt’s rights acquired under the tax sale of 1887. Having elected to keep alive the tax sale certificate of November 23,1887, and having notified the plaintiffs to redeem from such tax sale, with a knowledge of their interest in the premises, Holt is conclusively charged with the consequences of an election to the plaintiffs, as mortgagees or owners, to redeem,, and he cannot now be permitted to recede therefrom.

If the defendant relied upon the deed of the 28th of October, 1887, executed - in pursuance of the sale of 1885, for the taxes of 1884, it would" seem to be hardly less than a fraudulent transaction for him to serve a notice to redeem the lands from the tax laid in 1886. Wood v. Seely, 32 N. Y., 105; Sherman v. McKeon, 38 id., 266. We agree with the learned counsel for the respondents that chap. 229 of the Laws of 1879 provides an adequate system for the collection of taxes and for the sale of lands for unpaid taxes in Chautauqua county and for the vesting of a fee in the purchaser at such sales. So far as we are able to observe, notwithstanding § 32 of this act, incorporating the general tax law, chap. 427 of the Laws of 1855, no question relating to the eighty-second section, concerning notices to be given .in cases of sales of land for unpaid taxes by the comptroller of the state, can arise. By § 1 of chap. 285 of the Laws of 1862, § 82 of chap. 427 of the Laws of 1855 was repealed. By § 1 of chap. 280 of the Laws of-1870 the repealing statute was itself repealed without any provision reviving the repealed section. This eighty-second section was again abrogated by chap. 556 of the Laws of 1890.

The question, as we deem it to be, is not whether the plaintiffs have conformed to the general - tax laws of the state in so far as they may differ from the statute for levying and collection of taxes and the sale of lands thereunder in the county of Chautauqua; but it is rather confined to the precise situation brought .about by the invitation in writing of the defendant, Horatio N. Holt, to the plaintiffs to come in and redeem the lands from the •tax sale of 1887, with a necessary implication that if such redemption was had and the moneys paid to the county treasurer, .and he in turn should turn them over to the defendant, that any claim made by the defendant thereafter should be in subordination to the rights acquired by the plaintiffs through such redemption. The plaintiffs themselves were ignorant in fact of the, ■sale made in 1885 for the tax of 1884, but had been made acquainted with the sale made in 1887.

„ At the time of the notice served by the defendant Holt to redeem from the last named sale, the title had not so ripened in the purchaser and his grantee under the sale made in 1885, as that it could not be divested by redemption thereunder under the general tax laws of the ■ state. But, as we view the case, there is no question touching the rights of the parties under the tax of 1884, which was followed by the sale of 1885. Under the evidence, the plaintiffs had a complete title to the premises by virtue of the mortgage foreclosure and sale above mentioned, except as the .-same might have been divested by reason of their omission to protect the property from taxation.

But it is argued by the learned counsel for the respondents, that isasmuch as the notice of redemption contained a clause to the effect that the same should have no effect upon any previous sales heretofore completed and perfected under the law, that he can still claim title to the lands by virtue of the sale made in the year 1885, and that the only effect of such redemption was to add to the mortgage security the amount paid for such redemption. But, as it seems to us, this qualification can have no influence upon the general question above considered. It does not specify what sales had theretofore been had; and it is stipulated, as a fact i:i ilr.' case, that the plaintiffs did not hear of the sale made in 1885 until after the entry of their judgment in the foreclosure action. Furthermore, we do not think it was competent for the defendant to qualify or limit the effect of his notice to redeem, provided the same was actually followed by a payment by the plaintiffs of the moneys in pursuance of the notice, and a receipt and retention by the defendant thereof. If this conclusion be not correct, the defendant' Holt would be in the attitude of having received money from the plaintiffs to which he was not entitled, and a fraud would be perpetrated under the guise of enforcing the laws of 1879, applicable to the county of Chautauqua. For this reason we think that the judgment appealed from should be reversed.

Judgment appealed from reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs; Lewis, J., not sitting.  