
    Harvey S. Kelly, Respondent, v. Clarence W. Austin and William Austin, Appellants, Impleaded with George H. C. Wallace, Defendant.
    Third Department,
    May 5, 1909.
    Tax — tax sale — substantial compliance with law—judgment in accord- . anee'with issues.
    Where the complaint in :an action to have a tax deed declared void is drawn on the theory that the sale was valid, but that the deed is voidable as being in fraud of plaintiff’s rights as mortgagee, a judgment of the trial court in plaintiff’s favor, based on the theory that the tax sale was void, will be reversed for it adopts a different theory than that upon which the action was brought.
    A statement in the tax deed that the sale was pursuant to the Madison County Law, although such law had at the time of the sale been repealed by the Gen-, eral Tax Law, did not vitiate the deed so long as the sale in all substantial respects complied with the General Tax Law, the only statute under which the sale could he made.
    Appeal by the defendants, Clarence W. Austin and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 5th day of September, 1908, upon the decision of the court rendered after a trial at the Madison Special Term.
    
      Clarence W. Austin, for the appellants.
    
      M. H. Kiley, for the respondent.
   Per Curiam :

The theory of the complaint is that the defendant Clarence W. Austin, the owner of the equity of redemption, suffered the: premises upon which the plaintiff’s assignor held a mortgage to he sold for taxes, bid them in, paid the taxes, obtained the tax title in his "father’s name and claims to have extinguished the mortgage, and it seeks to have the tax deed declared void as a fraud upon his rights. The court did not pass upon that question, but from the findings and the memorandum indorsed upon the briefs it is evident that the decision was based upon the theory that the tax sale was void, for the reason that the Madison County Law (Laws of 1892, chap. 245), under which the sale purports to have been made, was repealed by the General Tax Law (Laws of 1896, chap. 908). (Matter of Troy Press Co., 187 N. Y. 279; Matter of McIntyre, 124 App. Div. 66.)

This decision is erroneous for two reasons:

(1) It adopts an entirely different theory than that upon which the action, is based. (Scott v. International Paper Co., 125 App. Div. 318, and cases cited.) The theory of the complaint is that a valid tax sale was made, but that it is voidable by the plaintiff upon account of the fraud of the defendants. The theory of the. decision is that no valid tax sale was ever made and no consideration is given to the question whether the defendants’ acts were fraudulent or not. If the tax deed is void upon its face it does not require the action of a court of equity to clear the title. The complaint alleges a proper cause of action based upon the theory that the deed upon its face appears to be valid, but is rendered voidable by facts outside of the deed itself.-

(2) The provisions of the Madison County Law and of the General Tax Law, so far as the sale is concerned, are substantially alike. It is not necessary for the deed to recite under what particular statute it is made. It is only necessary to state the facts showing that the sale was made according to law. The statement in the deed that the sale was pursuant to the Madison County Law does not vitiate it so long as the sale in all respects complied with the General Tax Law, which was the only statute under which such sale could be made. (Matter of Torge v. Village of Salamanca, 176 N. Y. 324.) Minor differences can be found in the two acts, but none to the substantial prejudice of the owner. The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event. '

All concurred; Kellogg, J., not sitting.

Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event.  