
    Mary J. Smith, Resp’t, v. Byron J. Town, Rec’r of Taxes, The Village of Saratoga Springs et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    Cloud on title—Assessments.
    Where the deed given on a sale for non-payment of assessments is made presumptive evidence of the regularity of the proceedings, and said assessments are valid on their face and the defects can only be shown by extrinsic evidence, an action to set aside such assessments and the sales made thereon may be maintained to remove the cloud on title created thereby.
    Appeal from judgment of special term, overruling demurrers to the complaint. The notice of appeal brings up for review the order of special term consolidating three several demurrers, and directing that they be embraced in one judgment. Action to set aside two sales of real estate upon alleged illegal assessments and taxes. Plaintiff was the owner of the premises in question when said assessments were imposed and they were made against Gradas D. Smith, Garardius D. Smith and Mrs. G, D. Smith.
    The following is the opinion at special term:
    Potter, J.—The action is brought to set aside assessments made upon the real estate of the plaintiff, situate in said village and town, in behalf of said village and town, and the sales of said real estate by the defendant Town, receiver of taxes for the village, etc., as a mode of collecting said taxes.
    The charter of said village provides that the said village and town may purchase at such sale, and that the receiver shall give a certificate of such sale to the purchaser, and that at the expiration of two years from said sale, the receiver shall give the purchaser a deed of the premises sold, and that such deed or conveyance shall be presumptive evidence that the sale and all the proceedings prior thereto, from and including the assessment of the lands, were regular.
    The plaintiff alleges that the assessments upon the real estate were illegal for the reason that she was the owner thereof and residing at Saratoga Springs, at the time of said assessments, and that the assessments were not made against her or in her name, nor against the name of any other person who was the occupant of said real estate.
    The plaintiff alleges that such sale, certificate and conveyance when given will cast a cloud upon her title, and that the purchasers at said sale, if they have not received a conveyance, are entitled to receive a conveyance, and that the charter makes such conveyance presumptive evidence of the regularity, etc.
    The question is whether this action is maintainable upon the principles of the decided cases, and without the aid of the last part of § 8, chap. 68 of the Laws of 1880 (which has been repealed by chap. 290 of the Laws of 1890), and upon which the cases of Coxe, ex'r, v. Town et al., 31 St. Rep., 365, and Temple Grove Sem. v. Cramer, 10 Abb. N. C., 426, seem to have been decided.
    
      The principle upon which actions of this kind are maintained is “ that when the claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic ■evidence, it presents a case for invoking the aid of the court of equity to remove the cloud from the title.”
    “ But where the instrument is made presumptive evidence that such proceedings were had, the action lies, if the instrument be in fact void, for a defect in the proceedings. ” Scott v. Onderdonk, 14 N. Y., 9.
    “ When the claim of the adverse claimant to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proven to establish the illegality or invalidity, then a court of equity will interpose to remove the cloud.” Allen v. City of Buffalo, 39 N. Y., 386-390.
    Such an action is maintainable “ when it appears that the record or conveyance is not void upon its face, and that the claimant under it would not develope the ■ defects rendering it invalid by the proof which he would be obliged to produce in proceedings to enforce his claim.” Guest v. City of Brooklyn, 69 N. Y., 506.
    This kind of action is maintainable as well to prevent a cloud from being cast upon the title to the property, as to remove one already upon the title. Pettit v. Shepherd, 5 Paige, 493; Oakley v. Trustees of Williamsburgh, 6 id., 262; Sanders v. Village of Yonkers, 63 N. Y., 492; Clark v. Davenport, 95 id., 477.
    The charter of the village of the defendant makes the conveyance presumptive evidence that the sale and all the proceedings were regular.
    It is made the duty of the defendant, the receiver, to sell if the taxes are not paid, to give a certificate of the sale to the pur■chaser, and at the end of two years a conveyance to him. This deed entitles the purchaser to the possession of the premises sold, and to institute summary proceedings to obtain the possession.
    The production of the conveyance establishes the purchaser’s title and his right to possession to the property. . If the owner would maintain his title he must overcome the presumption of the validity of the purchaser’s title, not by showing that he bought .and paid for the property and took a deed from the owner, and has occupied it ever since and for any number of years, but by showing that there was a fatal defect in the proceedings which lead to the tax title under which the purchaser claims.
    The complaint maintains that the certificate has been given the purchasers at the two sales which have already taken place and .an intent to sell for the non-payment of the tax mentioned in the third count of the complaint, and that the defendants intend and threaten to complete such sales.
    The defendants refer to the cases of Sanders v. The Village of Yonkers, supra, and to Clark v. Davenport, 95 N. Y., 477, and to Guest v. City of Brooklyn, 69 id., 506, in support of their contention.
    It will be observed that all those cases cite and approve thé general principle upon which this class u£ actions have been maintained, as above cited. But the court in those cases assign special reasons why those cases do not fall within the general principle. In the case of Sanders v. Village of Yonkers, those reasons were “ that the purchaser is not entitled to a lease until he has at least given sixty days-notice” “or that the trustees threaten or design to give one,” “that there was no allegation that any certificate had been given” “or that there was any imminent danger that a lease would be given,” or that “ the interference of a court of equity was necessary to prevent a cloud upon the title.”
    The case of Clark v. Davenport, 95 N. Y., 477, cited by defendant, recognizes the rule that such actions may be sustained to remove or prevent a cloud upon the title, but holds in that case there was no occasion or necessity for such action because there was no alleged determination upon the part of the defendant (the comptroller of the state) to create the cloud, and moreover because the comptrollerupon an application could cancel the sale, and upon his refusal to do so in a proper case his refusal could be reviewed upon certiorari, or a mandamus issue to compel his compliance.
    I do not think the provisions in § 4 of chap. 68, of the Laws of 1880, in relation to the six months notice of the sale and purchase, required to be given to a mortgagee, judgment creditor or owner before the lien or title shall be divested, has any bearing upon the question involved in this action. That provision has relation to another condition of redemption. There is no time specified when such notice shall be given. It may as well bel after as before the time when the conveyance is made. It is no part of the proceedings which are to take place before the conveyance is made, and it is the conveyance which gives the purchaser the title to/the premises, the right to their possession, and raises the presumption that all the steps necessary to confer title have been taken.
    This statute is by far more dangerous than the statutes under which actions of this kind were sustained in Hatch v. The City of Buffalo, 38 N. Y., 276; Scott v. Onderdonk, 14 id., 9; Allen v. City of Buffalo, 39 id., 386-390; Crooke v. Andrews, 40 id., 547, 549-550.
    Those statutes required a record to be kept of the proceedings to assess, etc., and made such presumptive evidence of the regularity, etc., of the proceedings to assess and sell, or of .the facte stated therein. But the charter of the village does not require a specific record to be kept, and makes the conveyance presumptive evidence, etc.
    I am of the opinion that the complaint in this case sets forth a cloud upon the plaintiff’s title to the premises, and that the plaintiff is entitled to the relief sought by this action. Indeed, I am not quite able to see why the defendants interpose any defense in view of the concession made by the defendant that the assessment was illegal and void. Until the defendant abandons and cancels the sale the plaintiff would not likely be able to find a purchaser of the premises at their fair value, for the plaintiff and her purchaser will be constantly and indefinitely menaced by the holder of a tax title under a conveyance presumed to be regular .and valid. The defendant should not be permitted to hold a weapon which may at any minute be wielded to the injury of the plaintiff’s rights, and there are many and weighty reasons why actions of this character should be brought, other, than actions at law at some remote and indefinite period of time, to establish and ■determine the title to the premises.
    The demurrer should be overruled, with leave to the defendants to answer upon payment of costs (to be taxed) within twenty days after notice of the taxation.
    
      W. P. Butler, for app’lts; Ira D. Roods (J. W., Hill, of counsel), for resp’t.
   Mayham, P. J.

—We think the judgment overruling the demurrers in this case right, and that the reasons given by the learned trial judge in his opinion printed, in the case are sound.

We are also of the opinion that the order made by the special term consolidating the several interlocutory judgments into one was correct practice under the circumstances of this case.

That order was made on the application of the defendants, and was for, their benefit; and seems to conform to the demand in their notice of motion. From that order the plaintiff has not appealed, and we do not think the defendants are in a position to ask for its reversal.

The judgments entered upon the demurrers, and the order consolidating the interlocutory judgments into one, are affirmed, with costs, with leave to the defendant, within twenty days after the service of the order of affirmance, to answer the complaint on payment of costs.

Putnam and Herrick, JJ., concur.  