
    John C. Barth, Respondent, v. J. Langdon Ward and Henry H. Porter, as Executors, etc., of George Bliss, Deceased, Appellants.
    
      Covenant against incumbrances — a deposit of money, conditional on the constitutionality of an assessment, repaid when the assessment is adjudged to be unconstitutional— liability of the grantor, where, thereafter, a new assessment is made for the same improvement. ,
    At the time of the delivery of a deed containing a covenant against incumbrances there was of record against the property an assessment for certain public improvements. The grantor contended that the assessment was void because of the unconstitutionality of the act under which it was levied, and on the delivery of the deed deposited with the grantee sufficient moneys to satisfy the assessment, to await the decision of a New Jersey court as to the validity of the assessment, upon the agreement that if the assessment should be declared void the amount with interest should be returned to him. • ,
    Thereupon the grantor commenced proceedings in the New Jersey court to test the validity of the assessment which resulted in the following judgment: “ That the act of the Legislature, under and by virtue of which said proceedings were instituted, the work done, and said assessments made, is unconstitutional and void. It is ordered that said proceedings and assessments be set aside, made void, and for nothing holden, with costs.”
    The grantee thereupon returned to the grantor the deposit made by the latter upon the execution by him of a bond conditioned: “ That in case at any future time an appeal' shall be duly taken from said adjudication of the Supreme Court of New Jersey, and that on said appeal the said adjudication shall be reversed, and the said assessment shall be finally adjudged to be a lien upon said property, so that said Barth shall become liable to pay the same to relieve the property from such lien, then, and in such case, the said Bliss shall on demand pay to said Barth the amount he is so compelled to pay.”
    No appeal from this adjudication was ever taken, but a new proceeding was thereafter commenced under which another assessment was made on the property for the same improvement. The grantee, after unsuccessfully endeavoring to have the executors of the grantor (since deceased) pay the new assessment, paid the same himself and brought an action against such executors to recover the same.
    
      Held, that as the court had sustained the grantor’s contention that the original assessment was void because of the unconstitutionality of the act under which it was levied, and as the assessment which the grantee paid was a new assessment, the lien of which attached long after the date of the conveyance, no liability on the part of the grantor was created by the covenant against incumbrances or by the bond.
    
      Appeal by the defendants, J. Langdon Ward and Henry H. Porter, as executors, etc., of George Bliss, deceased, from a'judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of February, 1901, upon the decision of the court rendered after a trial at the Hew York Trial Term; a jury having been waived.
    • On the 31st day of January, 1896, in the city of Hew York, the residence of all the parties, the defendants’ testator, George Bliss, and wife executed and delivered to the plaintiff a deed wherein and whereby they conveyed to the plaintiff certain property at Long Branch, H. J., subject to a mortgage therein mentioned and described. This deed contained covenants as follows: “ And the said George Bliss doth for himself, his heirs, executors and administrators covenant and grant to and with the said party of the second •part, his heirs and assigns, that he, the said George- Bliss, is the true, lawful and right, owner of all and singular the above described land and premises, and of every part and parcel thereof, with the appurtenances thereunto belonging and that the said land and premises, or any part thereof, at the time of the sealing and delivery of these presents are not encumbered by any mortgage, judgment, or limitation, or by any encumbrance whatsoever by which the title of the said party of the second part hereby made or intended to be made for the above-described land and premises, can or may be changed, charged, altered or defeated, in any way whatsoever, except, as aforesaid. * * * And, also, that' he, the said George Bliss, will warrant* secure and forever defend the said land and premises unto- the said John 0. Barth, his heirs and assigns forever against the lawful claims. and demands of all and every person or persons, freely and clearly, freed- and discharged of and from all manner of encumbrances, whatsoever.”
    At the time of .the delivery of this deed there was of record art assessment against the property conveyed, purporting to have been laid for the peculiar benefits decided to have been conferred upon, the said premises by certain public improvements, amounting to the sum of $1,834.43, which was in form a lien upon the property. The defendants’ testator claimed that this assessment was not a lien, but was utterly void, because of the unconstitutionality of the act. under which the proceedings for the making of the said alleged. improvement and the laying of the assessment were, had and made, and on the delivery of1 the deed the defendants’ testator gave the plaintiff $2,500 to deposit in a trust company, to await the decision of the Hew Jersey court as to the validity of the assessment, upon the agreement that, if the assessment should be declared void by proceedings taken in the courts, the amount, with interest, should be returned to him, and that “ if no decision is had in the Hew Jersey courts before July 1st, 1896, Mr. Barth may use the deposit to pay the assessment.” Thereupon proceedings were commenced by the said Bliss in the Supreme Court of Hew Jersey, by certiorari, tó test the validity of the said assessment, and thereafter such proceedings were had therein that on the 8th day of June, 1896, the following judgment was entered : “ The Court having heard the argument of counsel and inspected the return, proceedings and assessments removed by the writ in this cause, and duly considered the reasons filed, and being of opinion that the act of the Legislature, under and by virtue of which said proceedings were instituted, the work done, and said assessments made, is unconstitutional and void. It is ordered that said proceedings and assessments be set aside, made void, and for nothing holden, with costs.”
    Upon the entry of this judgment the said Bliss demanded the return of the deposit, to which the plaintiff objected on the ground that there might be an appeal from said decision and a reversal thereof, and thereupon an agreement was made and entered into between the said plaintiff and the said Bliss by which it was agreed, “ that the said Barth shall immediately on the execution hereof, and of the delivery to him by said Bliss of a bond of the City Trust Safe Deposit & Surety Company of Philadelphia, securing the performance hereof by said Bliss, pay over to said Bliss the said sum of twenty-five hundred dollars, and interest, and that in case at any future time ■ an appeal shall be duly taken from said adjudication of the Supreme Court of Hew Jersey, and that on said appeal the said adjudication shall be reversed, and the said assessment shall be finally adjudged to be a lien upon said property, so that said Barth shall become liable to pay the same to relieve the property from such lien, then, and in such case, the said Bliss shall on demand pay to said Barth the amoun.he is so compelled to pay.” The bond required by the said agreement was duly given, and thereupon the plaintiff returned and repaid the defendants’ testator the said sum of $2,500 deposited with him as aforesaid. No appeal was ever'taken from the adjudication of the Supreme Court of New Jersey setting aside the assessment, but subsequently a new proceeding was commenced, under which another assessment was made on the property’ for the same improvement and duly confirmed. The plaintiff notified the defendants that this assessment had been made, and that it was for the same improvements for which the assessment so vacated had been levied, and' demanded that these defendants pay the same, which they refused to do. The plaintiff then paid the same with interest, the sum paid amounting to $1/734.85, and thereafter presented to these defendants a claim for the amount so paid. This claim the defendants rejected and.refused to pay, whereupon this action was brought to recover the same, resulting in a judgment for the plaintiff, and from such judgment this appeal is taken.
    
      J. Lcmgdon Ward, for the appellants.
    
      Wm. J. lippmann, for the respondent.
   Hatch, J.: -

- The defendants filed exceptions to the decision of the court, which requires us to review the facts in this case, and after careful consideration of the questions presented, we are of the opinion that certain material facts found by the court as a basis for its conclusions of law are not supported by the evidence. ■ It is alleged in the complaint and found as a fact by the court that the Supreme Court of New Jersey, in setting aside the assessment against the property purchased by the plaintiff from defendants’ testator, not only decided that the act of 1892 (Chap. 81), under and pursuant to which the assessments, were made, was unconstitutional, but that said assess^inents should have been levied under the provisions of chapter 59 of the Laws of 1818-of the State of New Jersey, entitled “An act to provide for the assessment and payment of the costs and expenses incurred in constructing sewers and making other improvements in townships and villages; ” and the supplement thereto of 1880 (Chap. 205).

The only evidence as to these facts is found in the exemplified copy of the record of the proceedings in which the assessment was set aside, and this evidence not only fails to establish ■ the facts so •found, but conclusively disproves all except the fact that the assessment was set aside on the ground that the act authorizing it was unconstitutional and void. Ho mention is made of the other matters found as facts by the court below. The facts so found were material to the issue made by the pleadings, the plaintiff having alleged that the grantor did “ agree with this plaintiff that if at any time thereafter the said assessment should be restored or said property * * * be reassessed for said improvement, and if the plaintiff was compelled to pay the same, he, the said George Bliss would repay the amount so paid by this plaintiff.” The defendants denied the same.

Another finding of the court upon, the subject is still more objectionable. It is stated and found as a fact that these defendants’ testator, at the time of his demand for the return of the money deposited by him with the plaintiff, “ did then and there agree with this plaintiff that if at any time thereafter the said assessment should be restored (or said property conveyed by him to the plaintiff would be reassessed for said improvement) and if the plaintiff was compelled to pay the same, he, the said George Bliss, would repay the amount so paid by this plaintiff.” This was also averred in the complaint and denied in the answer. This finding is vital to the plaintiff’s right to recover, and, if unsupported by the evidence, the judgment must be , reversed. The only evidence of the agreement between the parties is a written contract, from which it appears that the defendants made no such agreement. The agreement provides, “ That in case at any future time an appeal shall be duly taken from said adjudication of the Supreme Court of Hew Jersey, and that on said appeal the said adjudication shall be reversed, and the said assessment shall be finally adjudged to be a lien upon said property, so that said Barth shall become liable'to pay the same to relieve the property from such lien, then, and in such case, the said Bliss shall on demand pay to said Barth the amount he is so compelled to pay.” This is a very different agreement, in legal effect, from that found by the court and its effect is obvious, for under the agreement found an undoubted liability would be imposed upon the defendants, while under that proved, their liability depends upon whether or not the facts show a breach of the agreement actually made and proved. The trial court, in accordance with its finding, as to the agreement, further found and decided that the assessment of $1,526.25, afterwards levied upon the property and paid by the plaintiff, was a reassessment for the identical work and improvement for which the first assessment had been made and levied thereon. It is thus seen that a recovery was had upon the theory that the money paid by the plaintiff was for a restoration or reassessment of the original tax, and this conclusion is based upon 'the authority of Cadmus v. Fagan (47. N. J. L. 549). With this result we cannot agree. It appears that the assessment which was considered by the court in that case was set aside for some reason which does not clearly appear, but it is made manifest that the decision is not based upon the invalidity of the law under which the assessment was made, nor is the validity of the law questioned, for the court by the same order by which the assessment-was vacated and set aside, appointed commissioners to reassess the tax for the improvement. The reassessment was made and confirmed, and it was held that such assessment related back to the date of the confirmation of the original assessment. It, therefore, appears that the facts in the case at bar do not bring it within the authority of that case. Here; not only the original assessment, but all the proceedings leading:up to it were set aside, made void and adjudged to be “ for nothing holden.” Ho continuance of such proceedings was possible.,, because the court held that “ the act of the Legislature, under and by virtue of which said proceedings were instituted, the work done, and said assessments made, is unconstitutional and void.” Hó lien was ever created by the proceeding.' It was null ah mitio, and it follows that there was no breach of the grantor’s covenant against incumbrances. Hor was there shown any breach of the contract made by the grantor with the plaintiff. There is no proof of an agrees ment on his part to pay any new assessment that might be made. He contended that the apparent lien of the original assessment was no incumbrance, because of the unconstitutionality of the law under which the proceeding was taken. The court sustained this view and adjudged the assessment void, thus removing the cloud on the title. The grantor intended' to protect the title against the original assessment and the reversal of -that adjudication if appealed from, and he agreed that if the original assessment was “ finally adjudged to be a lien upon said property,” he would pay the same. Ho such thing was ever done ; no appeal was taken from the - decree. The assessment which the plaintiff paid was a new assessment, made and levied under a new proceeding 'commenced de novo under another statute, the lien of which only attaches from the date of its confirmation, long after the date of the conveyance. Ro liability is created by the covenant nor by the agreement proved.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yah Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  