
    Claudius Shattuck et al., by guardian, Resp’ts, v. George Bascom, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    1. Title—Tax sale—Comptroller’s deed—When void for defect in assessor’s oath—Estoppel.
    Plaintiff claimed title under a deed executed by the comptroller of the state, pursuant to a sale in 1866, for arrears of taxes. In 1869 defendant gave a quit claim deed to C., which was recorded, but was really a mortgage, and C., in 1873, brought an action against plaintiff’s father, to set aside the comptroller’s deed as a cloud upon title, and was defeated. C. reconveyed to defendant, and in this action the trial judge held that defendant was bound by the former judgment; but the general term, in affirming the judgment, held that the tax title was valid, and that defendant was not estopped by the judgment. Held, error; that defendant took his title previous to the action, and was not bound by it, and that C. was merely a mortgagee, and that the tax title was invalid.
    3. Same—Assessor’s oath—Form of, must be followed.
    At the time of the tax sale in question, the law (chap. 176, Laws 1851), prescribed the form of oath which the assessors should take, as follows: “ We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment-roll, all the real estate situated in * * * according to our best information, and that with the exception of those cases in which the value of the real estate has been changed by reason of proof produced before us, we have estimated,” etc. In this assessment-roll the words “of proof” were changed to “hereof.” Held, that the entire value of the oath was lost, and it answered no purpose whatever, so far as pertained to the assessment of real estate, and might as well have been entirely omitted.
    Appeal from a judgment of the supreme court, general term, fifth department, denying a new trial and affirming a, judgment in favor of plaintiff on verdict.
    
      E. D. Northrup, for app’lt; Cary & JRimsey, for resp’ts.
    
      
       Reversing 36 Hun, 638, mem.
      
    
   Earl, J.

The plaintiffs commenced this action to recover a quantity of hemlock bark, which the defendant had peeled and taken from the trees standing on lot No. 54, containing •one hundred and fifty acres of land, situated in the town of Portville, in the county of Cattaraugus. The defendant in his answer, denied the plaintiff’s „title to the land, and averred that he owned the land, and consequently the bark taken therefrom.

Upon the trial it appeared that the plaintiff claimed title under a deed executed by the comptroller of the state, pursuant to a sale of land in 1866, for arrears of taxes for the years 1856, 1858 and 1860. It is undisputed that the defendant had good title to the land, unless it has been defeated by the tax sale and the deed of the comptroller.

The defendant claims that there were certain defects in the imposition of the taxes and in the subsequent proceedings, which rendered the comptroller’s deed invalid. But the plaintiffs claim that he is estopped from assailing the comptroller’s deed by certain facts which will now be mentioned.

In 1869 the defendant executed a quit-claim deed of the-land, to one Coleman, which was duly recorded in the proper clerk’s office, and while he held that deed and the apparent title to the land in 1873, he commenced an action against the father of the plaintiff, under whom they claim, to set, aside the comptroller’s deed as a cloud upon his title, on the ground that the tax sale was void, and the deed given in pursuance thereof invalid. That action was tried and resulted in a judgment for the defendant therein, which was. finally affirmed in this court. Coleman v. Shattuck, 2 Hun, 497; aff’d 62 N. Y., 348. Subsequently to the entry of that judgment, and before the commencement of this action, Coleman reconveyed the land to this defendant, and upon the trial of this action it was undisputed that the deed by this defendant to Coleman was given as security, and was in fact a mortgage. The trial judge directed a verdict in favor of the plaintiffs, upon the ground that this defendant was bound and estopped by that judgment. Upon appeal by the defendant to the general term the judgment of the trial term was affirmed, as appears by the opinion' there pronounced, upon the ground that the plaintiffs’ tax-title was valid. But the court there further held that the defendant was not estopped by the judgment between his mortgagee and plaintiffs’ father.

Although the conveyance from defendant to Coleman was in form a deed, it was in fact a mortgage, and had all the incidents of a mortgage. Coleman could not, upon that deed, have maintained an action of ejectment against his grantor, or any other person. All he acquired by the deed was a lien upon the land for the security of his debt, and upon payment of the debt his interest in the land and his lien thereon would absolutely cease. Eeconveyance by him to this defendant was not necessary to reinvest him with the absolute title, and was necessary only to clear up the record title. Murray v. Walker, 31 N. Y., 399; Horn v. Keteltas, 46 id., 605; Carr v. Carr, 52 id., 251, Morris v. Budlong, 78 id.,. 543. Therefore the defendant did not, in any sense, take his title from Coleman, but his title was, anterior to any interest which Coleman had in the land; and the legal title was in him at the time of the pendency of the action of Coleman v. Shattuck. He was not a party to that action, and it was not carried on at his instance or for Ms benefit,. and, therefore, he is not bound or estopped by the judgment rendered therein. It would be quite a novel doctrine to hold that a mortgagor is bound and estopped by a judgment rendered in án action by the mortgagee against some other person to which he was not a party. It was, therefore, open to the defendant upon the trial of this action, to assail the title of the plaintiffs.

The act, chapter 209 of the Laws of 1860, made the comptroller’s deed presumptive evidence that "the sale and all proceedings prior thereto were regular, according to the provisions of law directing the same, or in any manner relating thereto. But as the act made the deed only presumptive evidence, a party against whom a tax title is asserted still has the right to show by any competent evidence that the proceedings for the assessment and collection of taxes were illegal and defective, and that the comptroller’s deed is in fact invalid.

Upon the trial of this action and upon the argument of the appeal in this court, the counsel for the defendant pointed out various defects and irregularities, on account of which he claimed that the comptroller’s deed is invalid. But we deem it important now to consider but one of the alleged defects, and that relates to the taxes of 1856. The law in force at that time—chapter 116, Laws of 1851—pre-scribed the form of oath which the assessors, or a majority of them, should take and attach to the assessment-roll, and that so far as pertains to real estate is as follows: “We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment-roll all the real estate situated in the—town or ward as the case may be— according to our best information, and that with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof, and at which, they would appraise the same in payment of a just debt due from a solvent debtor.” This oath is intended to secure a just valuation of property to be taxed, and is thus for the protection of tax payers, and no assessment can be valid unless it has_ the sanction of the oath. The legislature having prescribed the precise form of oath to be taken, that form must be followed, and an assessment will be invalid if there is any material departure therefrom; and so it has been held. Van Rensselaer v. Witbeck, 7 N. Y., 517; Parish v. Golden, 35 id., 462; Bellinger v. Gray, 51 id., 610; Westfall v. Preston, 49 id., 349; Merritt v. Port Chester, 71 id., 309.

In the oath upon the assessment-roll for 1856 a fatal defect appears. Instead of the language “ value of the said real estate has been changed by reason of proof produced before us,” the word “hereof” was inserted instead of the words “ of proof,” so that the language is, “with the exception of those cases in which the value of the said real estate has been changed by reason hereof produced before us, we have estimated the value of said real estate at the sums which a'majority of the assessors decided to be the full and true value thereof,” etc. The purport of that is simply that they had estimated the value of the real estate at the sums which a majority of assessors decided to be the full and true value thereof, except in those cases in which the value had been changed for some reason undisclosed. That oath could have been truthfully taken by the assessors, even if they had overestimated or underestimated real estate, and had thus made their assessment entirely unequal and unjust. Thus the entire value of the oath was lost, and it answered no purpose whatever so far as pertained to the assessment of real estate, and might as well have been entirely omitted. Its form was such that it could not have laid the foundation of an indictment for perjury, no matter how grossly the assessors had violated their duty. It must be presumed that the form of the oath prescribed by the statute was before the assessors at the time the oath was written,' and we may assume that the material departure from the words of the statute was probably intentional to accomplish some purpose not allowed by the letter of the law. We, therefore, entertain no doubt that this defect in the oath rendered the assessment of 1856 wholly void, and, as the tax sale was made for the aggregate taxes of 1856, 1858 and 1860, the entire sale was illegal and invalid, and the deed given in pursuance thereof void. Blackwell Tax Titles, 160; Riverside Co. v. Howell, 113 Ill., 250; Matter of Willis, 30 Hun, 13; People v. Hagadorn, 36 id., 610, recently affirmed in this court.

The invalidity of the comptroller’s deed on account of the defect in the oath of the assessors did not come under consideration in Coleman v. Shattuck. In that case there was no allegation of such a defect, and the record, by some inadvertence, showed that the oath was correctly transcribed from the statute.

Therefore, without considering other alleged defects in the tax proceedings' to which our attention has been called, we are of opinion that the judgment of the general and special terms should be reversed, and a new trial granted, costs to abide event.

All concur.  