
    Austin Finegan, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Municipal corporations — tax sale — rights of the owner who compels, by mandamus, the cancellation of the sale, and, of the purchaser at the sale■—-a volunteer not entitled to subrogation ■—failure of consideration.
    
    In an action brought to recover a sum of money which had been paid to extinguish the lien of taxes upon certain premises, it appeared that the taxes and Croton water rents had been unpaid for several years, and that the clerk of arrears put the property up for sale, and that it had been purchased by John L. Brower in January, 1866, for §38.91, and again in November, 1866, for §61.10, and again by John Peterkin, in December, 1871, for §132.89; in each case for a term of 1,000 years; that certificates of sale were issued by the clerk of arrears, and, on or before October, 1881, the leasehold interest was sold to John Townsend, who, in 1882, sold them to Bernard Finegan, and in March, 1893, Bernard Finegan assigned his interest in the leases to the plaintiff.
    In April, 1893, Bernard Finegan, then being the owner of the fee, sued out a writ of mandamus requiring the clerk to receive payment of these arrears, the writ reciting the fact that the tax sales were void, and requiring the clerk, upon payment, to mark the taxes and water rents as paid, and to cancel the sales.
    The writ of mandamus stated that the tax sales were void, but expressly recited that the taxes were valid, and were liens on the premises in question. Pursuant to this writ the money was paid in April, 1893.
    
      Held, that the complaint was properly dismissed;
    That the lien of the taxes had not been affected by the attempt to sell the property, nor was the payment of the money on the bid made at such sale a payment of the taxes;
    That the purchaser was not in privity with the owner and did not pay his bid in the interest of the owner, nor to discharge the debt which the owner owed to the city;
    That, so far as the taxes were concerned, the whole transaction was a mere nullity ;
    That Bernard Finegan made no payment for the benefit of anybody but himself; that the sum was not paid for redemption from the tax sale under the provisions of the Consolidation Act, being quite insufficient in amount for that purpose;
    That the purchaser, by paying his money upon the bid at the sale adjudged to be void, did not become subrogated to the right of the city to receive the tax. from the owner of the premises;
    That he was a mere volunteer, who bought an interest in the land, but he did not pay the tax upon it.
    
      Qumre, whether the purchaser could recover from the city the money which he paid upon the void sale. ■ - •.
    
    Appeal by the plaintiff, Austin Finegan, from a judgment of the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 31st day of December, 1895, upon the decision of the court, rendered after a trial before the coiirt without a jury.
    
      John Townshend, for the appellant.
    
      George L. Sterling, for the respondent.
   Rumsey, J.:

The action was brought to recover a sum of money which had been paid by the owner of certain premises to extinguish the lien of taxes upon them. The facts are, that taxes and Croton water rents upon the premises having been unpaid for several years, the clerk of arrears, in 1866, put the property up for sale for the arrears of taxes, and upon such sale one John L. Brower offered to take such premises for a term of 1,000 years. The ¡first sale was made in January, 1866, and the premises were struck off to Browei', and he paid $38.91. The second sale was made in. November,. 1866, and Brower again bought a like term in the premises and paid $61.10 for it. The lot was again sold for subsequent taxes on the 6th of December, 1871, and a term of 1,000 years was sold to Peterkin, and he paid $132.89. The certificates of sale were duly issued by the clerk of arrears, and leases were issued thereon at the expiration of two years which were subsequently sold to John Townshend, who bought the. last of them in October, 1881. Subsequently, and on the 12th of April,. 1882, Townshend sold and conveyed the property to Bernard Finegan, and at the same time delivered the leases to him.

In April, 1893, Bernard Finegan, then being the owner of the fee, sued out a writ of mandamus requiring the clerk of arrears to receive the payment of the arrears of taxes, and water rents upon which it had been attempted to sell these premises many .years before, as stated above. The writ recited the fact that the tax sales were void and required the clerk, upon receiving the amount of taxes and interest, to mark the taxes and rents as paid and cancel the records in his office of the three sevéral sales of the said lot for the non-payment of said taxes and water rents. This money" was paid in April* 1893, pursuant' to the writ of mandamus, and the amount so paid was $534.26. Some time in March, 1893, Bernard Finegan assigned his interest in the leases to the plaintiff, and thereupon, after the money had been paid by him, the plaintiff brought this action to recover the money from the city. The foregoing facts, with some others, were found by the judge who tried the case. As the result of the trial the complaint was dismissed, and from the judgment dismissing the complaint this appeal is taken.

It is claimed on the part of the plaintiff that these tax sales were void, and this he sa)rs is the theory upon which his action is brought. While there is no finding on that subject by the court, yet it was clearly shown by the writ of mandamus which was put in evidence by the plaintiff as the foundation of the right of Bernard Finegan to pay these taxes, and that fact may fairly be considered in the examination of this appeal, especially as the plaintiff insists upon it here and bases his cause of action upon it.

Although the writ of mandamus proceeded upon the theory that the sales were void, and the writ is accepted by the plaintiff as an adjudication upon that point, yet it is to be noticed that the writ does not adjudge that the taxes themselves were illegal, but, on the contrary, the court finds that the taxes were valid, and the writ recites that they are still liens on the lot. That being so, the lien of the taxes had not been affected by the attempt of the clerk of arrears to sell the property by reason of them. Neither was the payment of the money upon the bid a payment of the taxes by the purchaser. (Clementi v. Jackson, 92 N. Y. 591.) It had no effect whatever upon them, and so the writ recited. Then in April, 1893, the taxes still remained unpaid and the lien was not extinguished or affected. In the case of The Mayor v. Colgate (12 N. Y. 140), in which it was held that the tax sales were void in consequence of defects,.the court says that the owner lost nothing, the purchaser gained nothing and the corporation received nothing which it could legally retain. So far as the taxes were concerned, the whole transaction was a mere nullity. The purchaser, by his bid, did not attempt to pay the tax. He did not make the bid for any such purpose. He simply stood in the attitude of a man who was willing to buy what he supposed the corporation had to sell. He stood in no privity with the owner, but his position was rather hostile. He certainly cannot be said, when he paid the amount of his bid, to have paid anything in safcisfaction of the' debt which the owner owed to the city by reason of the assessments levied upon his land, and such seems to have been the opinion of the court in The Mayor v. Colgate and Clementi v. Jackson (supra). The mandamus, viewing the attempt to sell as void, required the clerk of arrears to accept the arrears of taxes- and of water rents for the years mentioned therein, with the interest accrued on the taxes and water rents, to the time when the payment was ^offered by Bernard" Finegan in 1893, and that was the sum which he received by virtue of the compulsion of the Avrit which Bernard Finegan put upon him." The amount thus paid was not paid for the benefit of anybody else, but, as found by the court,' the payment was made to pay the taxes upon the property by the person who paid what he was bound to pay to relieve his. property from the lien of the taxes and water rents.

This sum was clearly not paid for redemption from the tax sales under the provisions of. the. Consolidation Act (Chap. 410 of the Laws of 1882). The' amount to be paid for redemption consisted of the several sums which were paid upon the several bids, being $38.91 paid ¡January 15,1866; $61.10 paid ¡November 2, 1866, and $182.39 paid December 16,1871, with interest on each of these payments at fourteen per cent annually from the time of the payment. (Consol. Act, §§ 941, 947.) This sum was very much greater than the amount actually paid pursuant- to the mandamus, and as is conceded on all hands and recited in the mandamus, it Avas. paid upon the taxes because the sale was void. What was received then, was the tax. If the sale was void the. tax lien still existed as We have-seen, and it was an incumbrance upon the property which the. owner Was interested to remove. ' But'the payme,nt of; the tax in 1893 gave the purchaser at the sale no right to the money then paid for that purpose. His right is only to receive from the city the money paid under section 941 for redemption, and there is no pretense that this money was paid for that purpose. It is quite true that one of the findings. of fact says that the money was paid to redeem the premises from the lien of said taxes and water rents and from said sales therefor; but. it must be remembered that the sales had been adjudged to be void, and there Avas no sale to redeem from. The only thing of that nature Avhich existed was the record ■of the illegal sales AAdiich were in the office of the clerk of arrears, and which, unless canceled, stood as an apparent lien upon the title of the owner of the fee, and the clerk of arrears Was directed to cancel them. Under the facts stated in the mandamus it might well be said that the money was paid to relieve the land from the apparent lien of that sale which was, in fact, void; and, interpreting the finding in that way, there is no inconsistency between the two findings of fact by the court.

But it is said that the sales being void, the receipt of the money upon the bids by the city and the issue of the certificates upon the sale operated as an assignment to the purchaser of the right of the city to collect the tax, or at least operated to give him a right to receive the tax when it was paid to the city. In other words, the plaintiff claims that the purchaser by paying his money upon the bid at the void sale became subrogated to the right to receive the tax from the owner of the premises. To this proposition there are several answers. Subrogation is the substitution,of another person in the place of a creditor to whose rights he succeeds in relation to the debt. This may come about when one who is bound as a surety to pay a debt advances the amount of it to a creditor, in which case he receives every thing that the creditor has to enforce the collection of the debt. It may come about, also, when one who has any interest to protect pays some lien or incumbrance upon property for the purpose of protecting that interest, in which case he will be deemed the equitable assignee of the debt which he pays. (Cole v. Malcolm, 66 N. Y. 363.) But no one who is a mere volunteer can acquire a right of subrogation. There must be either some duty on his part to pay, or some interest to be protected which gives him the right to pay the debt. (Acer v. Hotchkiss, 97 N. Y. 395; Shinn v. Budd, 14 N. J. Eq. 234.) In this case there was nothing of the kind. The purchaser at the sale was a mere volunteer who bought an interest in the land but paid no incumbrance. It is expressly held in Clementi v. Jackson (supra) that the purchase at a void tax sale did not operate as a payment of the tax, and certainly if the tax was not paid to the city then there was nothing to which the purchaser could be subrogated. For this reason alone the theory of the plaintiff fails.

The plain situation of the case is this: When an attempt was made to sell these premises upon these legal taxes, the purchaser for his own interest, and not at the request of the owner of the premises, invested his money in what he supposed to he a good speculation.. This was done without any intent to pay the debt or obligation of the owner, but simply to become the Owner himself of an interest in these premises.. He got -nothing by the investment which he made. It may be that he might-recover back. the. money which he has paid upon this void sale, although that is doubtful. (Coffin v. City of Brooklyn, 116 N. Y. 159; 25 Am. & Eng. Ency. of Law, 719, and cases cited.) But the money which he paid was not for the benefit of the owner. It did not'relieve him from thé payment of the tax,, nor did it relieve the lands from the incumbrance, and so far as the owner and the city were concerned, the' situation remained precisely as.it was before. Ho ‘reason can be perceived why the city should be made liable to pay back the money which was received on a valid tax because it has previously received other money upon an illegal sale of the taxed premises, and may possibly be liable to pay back the money so received to- the person who paid it, or his assignee.

The judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett and Patterson, JJ., concurred; Williams, J., concurred in result. - ■

Judgment affirmed, with costs:  