
    Martin Clark, Pl’ff, v. William H. Lock, Def’t.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    
      1. Municipal corporations—Buffalo—May take mortgage for taxes.
    By the charter of Buffalo, § 1, title 1, chap. 519, Laws of 1870, the city is authorized to take, purchase and hold and convey real and personal property as its purposes may require. Held, that it had power to receive a mortgage of a property owner for due and unpaid taxes and interest; and it may enforce such a mortgage.
    2. Same—Tax sale—Notice to redeem from does not extinguish lien OF MORTGAGE.
    After the lands were so mortgaged and in April, 1883, they were sold for non-payment of taxes to one Sawyer, who received a certificate which, in September, 1883, he assigned to one Tifft. In November, 1883, the city began a foreclosure, malting, among others, Sawyer a party. Sawyer did not answer, and judgment of foreclosure was entered in January, 1886. In the meantime Tifft served on the city as mortgagee a notice to redeem, and on July, 1885, he received a deed from the city comptroller. Held, that, as Tifft’s assignor d:d not answer in the foreclosure action, Tifft’s notice to redeem did not extinguish the lien of the mortgage and its judgment of foreclosure, so long as its stands, is a bar to any claim under the certificate of sale.
    Case agreed upon in a controversy submitted without action, under § 1279 of the Code of Civil Procedure.
    
      Martin Ciarle, pl’ff in person; Giles H. Stillwell, for def’t.
   Macomber, J.

In the year 1873, one Balcom was the owner of real estate, situated in the city of Buffalo, upon which there was then due and unpaid to the city for taxes, including interest and additions, the sum of $10,849. A month before this time, the common council of that city had agreed to receive a mortgage upon the lands of Balcom'in the sum of $10,849, and such mortgage, accompanying the bond of Balcom, was accordingly executed and delivered to the city on the 29th day of January, 1873. Afterwards, and on the 29th day of April, 1883, the comptroller of the city sold these lands for non-payment of taxes for the year 1882, and struck the same off to one George P. Sawyer, to whom was issued a certificate of sale. Sawyer, on or about the 1st day of September, 1883, sold and assigned such certfiicate to one Tifft. In November, 1883, the city of Buffalo began a suit for the foreclosure of such mortgage, making Sawyer and the executrix of the last will and testament of Balcom, together with certain creditors of Balcom, parties defendant.

In the answer in that action, interposed by the executrix and certain other judgment creditors, the validity of the mortgage to the city was put in issue; but Sawyer made default in pleading. Judgment of foreclosure and sale, however, was entered in the month of January, 1886, adjudging the amount due on the bond and mortgage to be $12,396.89. A modification of this judgment in respect to costs only was made by the general term. That case is now pending in the court of appeals undetermined. No sale has been made under such judgment. Tifft, after the purchase by him of the certificate of sale, caused notices to redeem to be served upon the city of Buffalo as mortgagee. Thereafter, and on the 1st day of July, 1885, the comptroller of the city executed and delivered to Tifft a deed of this property, which was duly recorded.

William H. Lock, the defendant in this action, bought of Tifft, after the delivery to the latter of the deed, the portion of lands involved in this appeal. In November, 1888, Lock in turn executed and delivered to the plaintiff a deed of this portion of the premises, with the usual covenants of warranty. The plaintiff claims that this covenant is broken by reason of the facts relating to the mortgage given to the city, and that such mortgage is a cloud upon his title; while the defendant claims that the lien of such mortgage was cut off and extinguished by the service of the notice to redeem, which was served upon the city, followed as it was by the delivery by the city comptroller of the deed -to Tifft. The defendant also contends that the Balcom mortgage was void, as no power existed on the part of the city to take such security in payment of taxes.

It follows, therefore, that if this mortgage is a lien upon this property, the plaintiff has a right of action against the defendant upon his covenant; while, if the mortgage be held not to be such lien, the complaint should be dismissed.

We are of the opinion that the city of Buffalo had the power and right to take from Balcom a mortgage in discharge or in payment of the taxes theretofore accruing upon the latter’s real estate. Neither Balcom, nor any person succeeding to his right, is in a position to deny the validity of this mortgage; for, by executing the same, the mortgagor conclusively acknowledged the validity of the indebtedness, and his liability to pay the same. The Rider Life Raft Company v. Roach, 97 N. Y., 378, and cases there cited.

By § 1, tit. 1, of the charter of the city of Buffalo, chap. 519, of the Laws of 1870, the city is authorized to take, purchase and hold and convey real and personal property as its purposes may require. We have no doubt but that the common council, when it decided that it was expedient for the city to receive this mortgage, had full power under the charter to accept the same in lieu of the indebtedness for taxes, as the transaction amounted to nothing more than ascertaining and putting in writing the amount of the indebtedness, for the tax lien itself was in the nature of a mortgage. The Mayor v. Colgate, 12 N. Y., 140. If this be so, the right to enforce the mortgage against the property covered by it necessarily follows. This proposition, as we understand it, was distinctly held in a decision at special term, in an opinion annexed to the plaintiff’s points, in an action of Tifft against the City of Buffalo, growing out of these precise facts. See also City of Buffalo v. Bettinger, 76 N. Y., 393, where it is held that a municipal corporation, in protecting its property, in collecting its debts, and generally in transacting a business of a private character may, when not expressly prohibited, avail itself of the rights and remedies afforded to an individual. See also Starin v. Edson, 112 N. Y., 206; 20 N. Y. State Rep., 898; Mayor, etc. v. Sonneborn, 113 N. Y., 423 ; 22 N. Y. State Rep., 988; Mayor, etc. v. Huntington, 114 N. Y., 631; 23 N. Y. State Rep., 912.

Nor did the service of the notice upon the city to redeem extinguish the lien of this mortgage. The foreclosure of the mortgage held by the city was begun November 17,1883, and Sawyer was one of the defendants who did not interpose any answer, but permitted judgment to go against him by default; while certain defendants met the issue with the result already stated. That judgment, as long as it stands, effectively cuts off any claim which Sawyer or his assignee Tifft can have under this certificate. The fact that steps were taken by Sawyer or his assignee after the filing of Us pendens, in the foreclosure action, resulting in a pretended perfection of a title under chap. 275 of the Laws of 1880, is unavailing to the defendant; Fuller v. Scribner, 76 N. Y., 190.

As we answer the three questions, propounded to us by written submission, in favor of the plaintiff’s contention, it follows, under the agreement of the parties, that judgment should be directed in favor of the plaintiff against the defendant in the sum of $600, being the amount agreed upon by the parties as damages for the breach of the warranty if the court should hold that there was a breach.

Dwight, P. J., and Corlett, J., concur. ,  