
    John F. Coffin, App’lt, v. The City of Brooklyn, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 8, 1889.)
    
    1. Taxes — Assignment of certificate.
    In the absence of evidence to the contrary the purchase from the city of Brooklyn of a tax certificate of lands bid in by the city is not a purchase of the outstanding term, but merely of the interest of the city in the certificate, and the giving of the lease imposes no additional liability on the city.
    3. Same — Mistake.
    The surrender of a tax certificate and taking a lease is an exercise of the option given by the certificate, and the purchaser cannot, upon the sale being declared invalid for irregularities preceding it, recover back the purchase money as paid under a mistake of fact.
    Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment of the special term dismissing plaintiff’s complaint, with costs.
    In 1872 a tax of $36.42 was attempted to be laid upon certain premises in the city of Brooklyn, and in the same year there was also unpaid a water rate of twelve dollars. These taxes were not paid and on October 5, 1875, the registrar of arrears of said city offered the premises for sale, as he was empowered to do by the ■charter, and, there being no bidders, said registrar bid in the premises for the city for the term of 100 years.
    Immediately after the sale he executed a certificate of sale which was as follows: *
    “Lib. 32. Vol. 3. $66.08
    “ City of Brooklyn, Beg. Ho. 5,607.
    “1872.
    “ October 5, 1875.
    “ I hereby certify that at public auction held by me this day at the office of the registrar of arrears, in the city of Brooklyn, for the sale of property for unpaid taxes and water rates, pursuant to an act entitled ‘ An Act to consolidate the cities of Brooklyn and Williamsburgh and the town of Bushwick into one municipal government, and to incorporate the same,’ passed April 17, 1854, and the acts amendatory thereof or supplemental thereto, the city of Brooklyn purchased the lot, piece or parcel of land assessed for the tax and water rate of 1872, and known by the number 5,607 in sales register of tax and water rates, Liber 32, for the term of one hundred years, for which he has paid the sum of $66.08, and which said purchase entitles him to a lease of the said premises for the term aforesaid, after the expiration of two years from the date hereof, unless said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase money, and all sums paid for taxes, water rates or assessments on said premises on account of the purchase hereinbefore stated, shall be repaid to said purchaser or his assigns, provided this certificate shall be surrendered to the registrar of arrears, and no further or other damage shall be claimed by said purchaser.
    
      “ Twenty-first ward, page 6, Mock 32. Lot No. 42.
    “D. D. Whitney,
    “ Registrar of Arrears."
    
    The premises were not redeemed by the owner and on March 16, 1882, the said registrar of arrears assigned the said certificate of sale to the plaintiff by an instrument in writing reading as follows:
    “ Department of Arrears, )
    “ Brooklyn, March 16, 1882. j
    “ I, Theodore F. Jackson, Registrar of Arrears for the city of Brooklyn, for and in consideration of one hundred and ten dollars and fifty three cents, the receipt whereof is hereby acknowledged, hereby assign to John F. Ooffin all the right, title and interest of the said city of Brooklyn in the within certificate.
    “Theodore F. Jackson,
    “Witness, " Registrar of Arrears.
    
    “R. S. Steres, Cashier."
    
    On March 20, 1882, the plaintiff surrendered his certificate of sale and received a lease for the premises so sold, as he was entitled to do under the terms of the certificate.
    Subsequently the court of appeals decided that the tax levy for the year 1872 was invalid on the ground that the certification of the assessment roll by the assessors was not in compliance with the requirements of the charter. Brevoort v. City of Brooklyn, 89 N. Y., 128. ’ _ ■
    _ In June, 1882, plaintiff brought this action to recover the money paid to the city on the assignment of the certificate.
    
      E. T. Brackett, for app’lt; Almet F. Jenks, for resp’t.
   Brown, J.

The right to recover from the defendant the money paid for the assignment of the certificate of sale is claimed by the learned counsel for the appellant upon the ground that it was paid under a mistake of fact. And this claim rests upon the assertion that the transaction between the parties was not solely an assignment of the right, title and interest of the defendant in and to the certificate of sale, but was a purchase of the outstanding term for wMch the property had been sold, which purchase was induced by the recital in the lease that “All the proceedings prior and subsequent to the sale * * * required by law to authorize this conveyance were duly had.”

It is not necessary to refer in detail to the numerous authorities cited by the appellant which he claims entitles him to a recovery in this action. So far as they are applicable to cases of this character, they hold that when there is mutual error as to the existence of the subject matter of the contract, the contract may be rescinded and money paid under it may be recovered back. Martin v. McCormick, 4 Seld., 331; Gardner v. Mayor of Troy, 26 Barb., 423.

In the cases cited there was a supposition by both parties that by means of the assessment and sale the vendors had acquired an interest in the land which they could sell and convey.

This erroneous supposition was the mutual error which gave the vendee a right to recover the money paid for the conveyance. I do not think this case falls within the principle of the authorities cited.

The trial court found that the money was not paid under a mistake of fact, but solely in payment of defendant’s interest in the certificate assigned to the plaintiff. There was no oral testimony .given upon the trial and the evidence consists of the admission in the pleadings, the certificate of sale, the assignment thereof and the lease.

The allegation in the complaint that the money was paid at the instance and request of the defendant, as the purchase money for the conveyance of the land, was denied by the answer and is unsupported by proof.

I do not see how, upon this evidence, it could be seriously claimed that the transaction between the parties was a sale and purchase of an interest in the land, or that the case was brought within the principle of the authorities cited on the appellant’s brief.

In those cases the parties dealt with other on the ground of a conceded right of property in the defendants. Here the assertion of such right is denied. The city at the date of the assignment had no apparent title to the land, and the proof does not show that either party assumed or supposed that it had acquired any interest therein. True, the time for redemption had passed, and the city might have taken a lease, but whether it should accept one or not depended on the vote of its common coroicil Section 18, title 8 of the charter.

By § 19 of the same title, it was the duty of the registrar of arrears to assign the certificate of sale to any person who would pay to him the amount required to redeem the land at the date of such assignment; and in the absence of any evidence as to the particular transaction in question, it is fair to presume that the assignment of the certificate was made under the provision of the section last cited.

I think the finding of the trial court was correct, and that the money was paid by the plaintiff in consideration of the assignment of the defendant’s right, title and interest in the certificate.

The giving of the lease imposed no additional liability on the defendant. That was a duty resting upon the registrar of arrears under the charter, and was a thing he was bound to do upon demand of the holder of the certificate of sale, in case the property was not redeemed by the owner. Its recitals are not covenants. The charter (title 8, § 10, chap. 863, Laws 1873) requires that each conveyance of land sold for taxes shall contain “a brief statement of the proceedings hgad for the sale of the land, and shall be evidence that such sale and other proceedings have been regularly made and had according to the provisions of this act.

In Rathbone v. Hooney, 58 N. Y., 463, this court decided that a conveyance under a similar statute was evidence only of the proceedings connected with the sale, and not of the assessment or of the proceedings which took place before the right to sell attached. The lease, therefore, cannot be construed to be a representation on the part of the city that the proceedings by which the assessment was laid were regular. Whatever its recitals may be, it is valid and effective only so far as it is warranted by the statute. All else is unauthorized and not binding upon the city. No covenant is implied in a conveyance of land, 1 R. S.,.738, § 140, and without the aid of fraud or mutual mistake of fact (neither of which is pleaded or found) the plaintiff was not entitled to recover. Whittemore v. Farrington, 76 N. Y., 452.

Under the assignment of the certificate of sale the plaintiff stands in the same position as if he had bid in the land at the tax sale.

He had the option to receive a lease for the term specified in the certificate, or if irregularities were discovered in the proceedings preceding the sale, to surrender the certificate and receive back the money paid.

The invalidity of the assessment was apparent on the face of the roll. He must be presumed to have had notice of it. He may have assumed that the affidavit of the assessors was a substantial compliance with the statute, but if he did his error was not one of fact, but one of law.

The contents of the affidavit were known to all who chose to inspect the roll His inference that it complied with the statute was a legal inference, and the mistake was of law.

With this delect open and patent to his inspection plaintiff exercised the option given him by the terms of the sale, and surrendered his certificate and accepted the conveyance of the land to which by the statute he was entitled.

His acts were entirely voluntary and the money cannot be recovered back on proof that the sale was invalid.

The law is settled that a purchaser of a defective title at a tax sale cannot recover the money paid from the city or county for which taxes the land was sold. Lynde v. Melrose, 10 Allen, 49; Brevoort v. Brooklyn, 89 N. Y., 135.

The judgment must be affirmed, with costs.

Bradley, J.

When the registrar assigned to the plaintiff the interest of the city of Brooklyn in the certificate, it was not in contemplation that the lease or conveyance of the term should contain any representation going to the validity of the assessment, etc., because it was not within the authority of the registrar to make any insertion to that effect in it. The statute provides what recitals it shall contain. Laws 1873, chap. 863, tit. 8, § 10.

No covenant is implied in the conveyance of land 1 R. S., 738, § 140. And without the aid of fraud or material mistake of fact (neither of which appears or is found), the plaintiff was not entitled to recover. Whittemore v. Farrington, 7 Hun, 392; S. C., 12 Hun, 349; affirmed, 76 N. Y., 452.

All concur.  