
    Lewis F. Allen and others, Respondents, v. The City of Buffalo, Appellant.
    Where a proceeding is void upon its face, or where, to show title, evidence must be produced, which will show the proceedings void, such proceedings are no cloud upon the title to the land. But where such proceedings are prima fade evidence of title, a bill quia timet will lie to remove such cloud.
    Where an assessment upon property is improperly or irregularly made, and where a certificate of sale of property, under such assessment, is made prima fade evidence of title, such certificate of sale becomes a cloud upon the title, and an action quia timet will lie to remove it.
    The appeal in this action is taken from a judgment of the Superior Court of Buffalo, rendered at General Term, in December, 1862, overruling the demurrer to the complaint therein.
    The complaint, after setting forth the corporate character of the appellant, alleges, that the plaintiffs are severally owners of certain lands on Niagara street, in the city of Buffalo; and, that, in the act of incorporation of the appellant, the foregoing provision occurs:
    The common council may cause any street, alley, lane or highway, in said city, to be graded, leveled, paved, repaired, macadamized or graveled, and cross and sidewalks, drains, basins, canals, docks, streets, alleys, slips, wharves, piers, sewers, receivers and aqueducts, to be constructed, rclaid and repaired, and the expenses of all improvements, made under this section, to be assessed upon the real estate of such city, deemed benefited by such improvement, in proportion to the benefits resulting thereto. They shall determine the amount to be assessed for any such improvement, and direct the city assessors to assess the amount so fixed. But no such improvement, other than the construction and repairs of sewers, piers, receivers, side and crosswalks, and the repairs of any street, alley, lane or highway, drains, basins, canals, docks, slips, wharves and aqueducts, shall be ordered, the expense of which shall exceed the sum of two hundred dollars, except upon the application of a majority of the property holders, directly, interested therein, and residents of said city; nor shall any such work he ordered, until there shall be presented to the common council, and filed with the city clerk, a certificate signed by the city assessors, or a majority of them, stating that such application is made by a majority of such property holders, resident in said city, and liable to be taxed or assessed to pay for the same, which certificate shall be conclusive evidence that such application is made by a majority, as required by this section.
    That, in January, 1858, the common council of the appellant received a petition of certain citizens, asking for the grading and. paving of Niagara street, between Massachusetts and Auburn streets, and the construction of crosswalks and sewers therein, and that such petition was accompanied by the following certificate :
    “ Proposed Improvement of grading Niagara street, the full width thereof, and paving a carriage-way forty-two feet wide from the northerly line of Massachusetts street to the northerly line of Auburn avenue, and constructing all necessary sewers and receivers, sluices and crosswalks in said street, between the above named points.
    “ To the Common Council of the city of Buffalo:
    
    “We, the undersigned, city assessors of the city of Buffalo, do hereby certify, that the application for the above improvment is made by a majority of the property holders, resident of the said city, and directly interested therein, and liable to be taxed or assessed to pay for the same.
    “Dated Buffalo, January 25,1858.
    “T. B. SHEPARD,
    F. G. PATTISON."
    That, in February, 1858, the said common council resolved that it was their intention to direct the performance of the work, and ordered that notice of such intention should be published ; and in March resolved that they had determined that such work should be done, and ordered the city surveyor to make the necessary estimates and the street commissioner w advertise for proposals therefor, and subsequently directed the city assessors to assess the expense of such work upon the real estáte in said city, by them deemed benefited thereby; and that, in April in the said year, the said city assessors made an assessment roll of the property by them deemed benefited by said work, in which they assessed such property tjie amount of the expense of such work; and that the lands of the plaintiffs were included and assessed in said roll; and that in May following the common council of the appellant confirmed said roll.
    The complaint also alleges, that, pursuant to other provisions of said city charter, the comptroller of said appellant, on the 4th day of June, 1860, made sale of the lands of the respondents to the appellant for the non-payment of the said assessments thereon, and that he delivered certificates of sale also to the appellant, pursuant to section sixteen, title five, of said charter (Sess. Laws 1853, p. 477);"which certificates are, by. the charter, made presumptive evidence of the truth of the matters stated therein.
    The complaint also recites section eighteen of title five of said charter, which provides, in substance, that, if the said real estate so sold shall not be redeemed, or the sale defeated in the manner prescribed by said charter, the common council of the city of Buffalo shall grant to the purchaser upon such sale, his legal representatives or assigns, upon due proof of the facts, entitling him or them thereto, and upon the payment of one dollar for the benefit of the city, a declaration in writing, under the corporate seal, signed by the mayor, and attested by the clerk, containing a description of the premises, the fact of assessment, advertisement and sale, the date of the sale, and the period for which the premises were sold, which declaration may be recorded as a lease of real estate, and shall be presumptive evidence in all courts and places, that such tax or assessment was legally imposed, and that due proceedings to authorize such sale were had.
    Upon these averments, the complaint demands judgment, declaring the said assessment,- and the said sales and eertificates null and void, and that the defendant be perpetually enjoined from granting any declarations of sale thereon.
    To this complaint, the appellant, as defendant, in the court below, demurred on the following grounds:
    1. That it appears, upon the face of said complaint, that this court has no jurisdiction of the subject of said action.
    2. That said complaint does not state facts sufficient to constitute a cause of action.
    
      David F. Lay, for the appellant.
    
      Geo, Wadsworth, for the respondents.
   Mason, J.

The assessment in question was illegal. (Law of 1856, p. 143,. § 20.) The certificate is substantially defective. The charter requires, that a majority of those interested in paving and grading .should petition. The certificate duly states, that a majority of those interested, in all the different and several kinds of work to be done, have petitioned. This certificate might be true, and yet, not one of the persons interested in the paving and grading, for which alone the petition is necessary, have joined in the petition. This question has deen decided in this court, in the cases of Lathrop v. The City of Buffalo, and Dolan v. The Same. The only question in the case is, whether the assessment of this tax, and the sale of the premises to pay the tax, and the issuing of the certificate of sale to the defendant, created such a cloud upon the plaintiff’s title, as justifies a court of equity to interpose.

This question is easily answered by reference to a few provisions of the defendant’s charter, and the well settled rules of equity. In the first place, the charter makes the assessment a lien upon the lots, and it is provided by the thirty-ninth section of title five, that it shall not be necessary in any proceeding for the collection of any tax, or in any suit or proceeding, in which such tax shall come in question, to prove the validity thereof or the regularity of amy of the proceed,mgs by which the same should have been impised, but said taz shall he deemed to he valid, regular and conclusive, etc., (Laws, 1853, p. 483, § 39.) And the twenty-fourth section of the same title declares, that the certificate of sale shall he presumptive evidence of the facts stated therein. (Laws, 1853, p. 480, § 24.) This certificate of the sale is required to contain a description of the property and the term for which it was sold, and the particular tax, and the amount thereof, with the interest and expenses for which, the sale was made, and the time when the right to redeem will expire. (Laws, 1853, p. 477, § 16.) The owner of the land must redeem by paying, etc., within three months after receiving notice, and, if he do not, the common council are directed, and it is their duty to issue a declaration in writing, to the purchaser under the corporate seal, signed by the mayor, and attested by the clerk,, containing a description of the premises, the fact of the assessment, advertisement and sale, and the period for which the premises were sold, and which declaration may be recorded as a lease of real estate. (Laws of 1853, p. 477, § 18.) This same section declares, that this declaration shall be presumptive evidence in all courts ‘and places, that such tax or assessment was legally imposed, and, that due proceedings to authorize such sale were had. This lease was not issued when this suit was commenced, but the assessment and sale were all proved by the certificate of sale, and the charter makes such certificate presumptive evidence of the facts therein contained, and is evidence in the defendant’s possession of a legal assessment and a valid sale, and consequently, the tax, being a lien upon the lots, creates a cloud upon the plaintiff’s title, and as the defendant is relieved from showing' the assessment whenever he has the certificate, and when he • gets his lease may stand upon that alone; it presents a case for equitable relief, the rule being, that, 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 proved to establish the illegality or invalidity, then a court of equity will interpose to remove the cloud. (Ward v. Dewey, 16 N. Y. 519, 522; Scott v. Onderdonk, 14 id., 9), and I am not able to distin guish the case of Scott v. Onderdonk, from the case at bar. It decides the very question presented by this appeal, and I cannot think it has been overruled by this court. The case of Howell v. The City of Buffalo should not be regarded as overruling the case of Scott v. Onderdonk, as it certainly would overturn the well settled rule in equity, and overrule a long line of decisions in this State, without reviewing or considering them, and as the case has been withheld from the reports we ought to follow the case of Scott v. Onderdonk, which is sound, and fully sustained by the prior cases. The defendant cannot have any benefit from the objection taken here, that there is a defect of parties plaintiff, as he has not specified this as a ground of demurrer. (Code, § 144.) The demurrer must distinctly specify the ground of objection to the complaint, and the penalty of the omission is, it will be disregarded if he do not. (Code, § 145.)

The judgment should be affirmed.

Miller, J.

This action was brought to set aside certain assessments levied upon the lands of the several plaintiffs, to defray the expenses of paving, and grading Miagara street, in the city of Buffalo, and for other purposes; which assessments are alleged to have been illegally made. The main question presented is, whether an action in the nature of a bill quia timet can be maintained to restrain the defendant from taking any proceeding to collect such assessments.

It is insisted by the defendant’s counsel, that the question now raised has been decided adversely to the plaintiffs, in the case of Howell v. The City of Buffalo. The case is not reported, but we have been furnished with a copy of the opinion of Mr. Justice Mason, which is relied upon as decisive of the question involved. The learned judge holds, first, that a remedy exists by a common law certiorari to correct errors of this description, and, when this remedy clearly exists, that equity will not entertain jurisdiction j second, that the plaintiffs had no common or joint interest m any of the parcels of land upon which the assessments were severally levied, and they could not unite in an action ; and that the subject-matter of the action being land, every plaintiff must be interested in the same piece of the land affected.

On the part of the plaintiffs, it is contended, that the learned judge has manifestly, in his opinion, overlooked the' case of Scott v. Onderdonk (14 N. Y. 9), which holds, that, if the instrument be void upon its face, or defective for the want of preliminary proceedings, the owner cannot maintain the action. But, where it is made presumptive evidence, that such proceedings were had, the action lies. In the case of Howell v. The City of Buffalo, the learned judge assumed, that -the declaration required by the eighteenth section of the fifth article of the charter would recite in brief the facts connected with the assessment; and that the facts thus recited would disclose, that it did not appear that a majority of those liable to pay for the improvement solicited, and for which it was necessary to apply to the common council, had united in the application. By the section of the act cjted, if the land sold is not redeemed, the purchaser is to have ai declaration of sale, containing certain statements, which is to be presumptive evidence, that the tax or assessment was legally imposed, and that due proceedings to authorize the sale were had; but, it does not provide that it shall show what the learned judge deemed essential, and, therefore, its invalidity would not appear upon the face of the declaration itself, and proof aliunde that instrument, would not be required to establish title. Another section, thirty-nine, of the act provides, “ that it shall not be necessary in any suit or proceeding for the collection of, or in which, such tax or assessment shall come in question, to prove the validity thereof, or the regularity, of any of the proceedings by which the same shall have been improved ; but said tax or assessment shall be deemed to be valid, regular and conclusive, subject to the right of any party to show to the contrary by affirmative evidence.” It would seem, that the declaration proves itself, and, prima facie, is evidence of title, liable to be assailed by affirmative evidence, that the tax is illegal and void. If this is so, then the action lies.

In the case of Scott v. Onderdonk, the land had been sold for the non-payment of a void assessment, but no conveyance or declaration of sale had been made. The Brooklyn charter provided, that the conveyance, when made, should be prima facie evidence of the facts therein recited and set forth; but it does not appear, that the assessment was presumed to be valid, or that the certificate of sale was in any way evidence of the facts therein stated, or that the declaration of sale was evidence in any proceeding, other than that for the recovery of the premises. The case is not as strong as the one before us, and it is, I think, apparent, that the learned judge in Howell’s case did not give it the consideration to which it is entitled, and, as it stands as authority, never having been overruled or considered, it is decisive of the principle here involved.

The parties subsequently brought in, by the order of the court, as plaintiffs, would seem to be proper parties to the action, as the order has never been appealed from, and has been sanctioned and made lawful by subsequent legislation. (S. L. of 1860, 635 § 1.)

A number of suggestions are made by the appellant’s counsel, which do not, I think, affect the final determination of the case. It must be disposed of on the one to which I have adverted, and, therefore, I have not deemed it necessary to discuss them.

The judgment must be affirmed.

All affirm.

Judgment affirmed.  