
    Scott against Onderdonk and another.
    She owner of land cannot sustain an action to have an instrument purporting to affect it canceled as a cloud upon his title where such instrument is void on its face, or where it is defective for the want of preliminary proceedings, which the party claiming under it would he bound to show.
    But where the instrument is made presumptive evidence that such proceedings were hadjthe action liesjif the instrument be in fact void for a defect in the proceedings.
    Appeal from a judgment of the supreme court affirming a judgment of the city court of Brooklyn in favor of the plaintiff on a demurrer to the complaint. The action was brought in March, 1852, against Onderdonk and the city of Brooklyn. The complaint stated that the plaintiff was the owner of two lots of land situate in the city of Brooklyn; that in November, 1848, the city sold the lots at auction to pay an. alleged assessment' thereon for constructing a well and pump in one of the streets, and that Onderdonk became the purchaser for the term of a thousand years at the price of $23.28; and that the common council of the city executed and- delivered to him a- certificate of the sale. This certificate was set out in the complaint.. It recited the making of the assessment, the proceedings to collect the same, and the advertisement and sale of the lots to Onderdonk, and certified that at the expiration of two years from the sale he would be entitled to a conveyance of the premises for the term for which they were sold. The complaint stated that a copy of the certificate was in March,- 1849, filed in the clerk’s office of Kings county, and entered in a hook kept by the clerk where certificates of sales of land for taxes were entered; and then alleged “ that no such assessment or tax as was mentioned in the "certificate had ever been made and confirmed ; that the proceedings had and taken by the city and its officers in respect to laying and imposing the assessment, the confirmation thereof and sale were irregular, illegal, defective and void; that the resolutions, of the common council passed in respect to the assessment and sale were not presented to the mayor for his approval, and that the mayor did not approve thereof as required by the statute.” It was further stated in the complaint that Onderdonk claimed that by virtue of the certificate he was entitled to receive from the city a lease of the premises for the period mentioned therein, but that as yet no lease had been executed to him; that as the plaintiff was advised the certificate by reason of the filing and entry of a copy thereof in the clerk’s office was presumptively a lien upon the premises or showed presumptively a power in gome one other than the plaintiff to create an estate therein, whereas in fact no such power or lien existed, and the certificate was a cloud upon his title, diminishing the value of the property and preventing its sale. It was averred that the defendant Onderdonlc, on request to do so, had refused to cancel the certificate or release his pretended rights under it. The defendant Onderdonlc appeared and demurred to tha complaint on the ground that it did not state facts sufficient to constitute a cause of action. The city court overruled the demurrer and gave judgment for the plaintiff, setting aside the certificate of sale and directing it to be canceled, declaring the proceedings and sale void, requiring Onderdonlc to release to the plaintiff his pretended claim to the land, and perpetually enjoining the city from executing any conveyance pursuant to the sale. On appeal the judgment was affirmed by the supreme court in the second district. The defendant Onderdonlc appealed to this court.
    
      And where a municipal corporation sold the plaintiff’s land for the payment of an alleged assessment which had never been laid, and was about to execute to the purchaser a conveyance which by the statute was made prima facie evidence that a valid assessment was made; Held, that the owner could restrain the corporation from executing the conveyance, have the sale declared void, and the certificate thereof issued to the purchaser canceled.
    
      
      J. E. Burrell, for the appellant, insisted :
    I. That upon the complaint the city of Brooklyn had no colorable right or authority to sell and convey the premises. It was therein alleged that the city had no such right or authority. That upon the statements of the complaint a conveyance by the city would not be a cloud upon the plaintiff’s title. (Cox v Cliff, 3 Barb. S. C. R., 481.)
    II. That the defendant claiming under the certificate of sale would be compelled to establish the right and authority of the corporation to sell, and to show a compliance with the provisions of the statute, step by step, including the very matters which the complaint alleges do not exist. (Fleetwood v. The City of New-York, 2 Sand., 479; Sharp v. Speir, 4 Hill, 76 ; Striker v. Kelly, 7 ib., 9; S. C., 2 Denio, 323; Doughty v. Hope, 3 Denio, 249; S. C., 1 Com., 79; Laws 1834, p. 106.)
    
      III. The alleged defects, to wit, the non-levying of the tax or assessment and the omission of the mayor to approve the resolution referred to, being facts which the purchaser must prove before the certificate can operate, and the objections alleged being such as are apparent upon the face of the proceedings, through which the purchaser must claim, do not render the certificate of conveyance a cloud upon the respondent’s title, so as to authorize the interference of a court of equity. (Cox v. Clift, 3 Barb. S. C. R., 481; S. C., 2 Coms., 122; Livingston v. Hollenbeck, 4 Barb. S. C., 16; Van Rensselaer v. Kid, ib., 19; Fleetwood v. The City of N. Y., 2 Sandf. S. C., 479; The Mayor, &c., v. Merscrole, 26 Wend., 132; Van Doren v. The Mayor, &c. 9 Paige, 386; Wiggins v. The Mayor, &c., 16 id.; Bouton v. The City of Brooklyn, 15 Barb., 387.)
    
      P. V. R. Stanton, for respondent, insisted:
    That the certificate set forth in the complaint was an apparent lien on the premises. That it was sufficient in form. That it recited that the proceedings requisite by the statute to authorize the sale were had. That the assessment, sale and certificate were authorized by law to be made; and the statute declared that when the certificate' was filed and entered in the clerk’s office it became a lien upon the premises. (Laws of 1834, p. 90, §§ 26, 42, 72; Laws of 1833, 507, 518.)
   Denio, C. J.

The substance of the complaint is, that .without having laid an assessment affecting the plaintiff’s jlots, the corporation proceeded to sell them as though they liad been legally assessed; that the defendant Onderdonk became the purchaser at the sale, receiving a certificate of the purchase, and is seeking to consummate the transaction by obtaining a conveyance of the property from the corporation for a long term of years. Though it is improbable that the sale was made without the pretence of a valid assessment, the defendants have chosen to put themselves upon the naked case that there was no assessment; and the question to be determined is whether, conceding such a state of things to exist, the plaintiff, before he has been actually disturbed, is entitled to maintain this action and to have a judgment arresting the proceeding and setting aside what has been done. Ordinarily a party must wait until his rights have been actually interfered with before he can implead another from whom he anticipates an injury. But there are several exceptions to this rule; and when the jurisdiction in law and equity was administered in different courts and by different forms of proceeding, it was a common case for a party to appeal to a court of equity for relief against an apprehended injury to be effected by his adversary by some act en pais or by some legal proceeding which he could .not defend himself against upon the principles of the common law. This class of cases has been narrowed by the law abolishing the distinction between the two jurisdictions; and now, as a? general rule, if the party claiming relief has a good defence, ii whether it be of a legal or equitable nature, and if he can ji only be divested of his rights by some suit in court insti- |j tuted by his adversary, he must wait until he is thus ji challenged, when he will be in time to bring forward his i defence. That there is a certain degree of inconvenience in this rule, in many cases which may be supposed, is admitted; but the evil would be much greater if every pefson who could show that what he claimed to be his rights was questioned by some other person, could call such person into court and compel him to disclaim or to litigate the matter in advance. Courts have commonly occupation enough in determining controversies which have become practical, without spending time in hearing discussions respecting such as ara merely speculative or potential. The most prominent of the inconveniences referred to have been remedied by legislation, or by the settled practice of the courts. Thus, a party claiming to be the owner of lands, may,' after a certain length of possession on his part, compel the determination of the claim of any other person to the title of such land. (2 R. S., 312; Laws 1848, ch. 50; Code, § 449.) So of the cases to wdrich the remedy by bill of interpleader formerly applied. Besides these cases, there is a principle of equity which remains in force notwitstanding the confusion of remedies, by which a person may in certain cases institute a suit to remove a claim which is a cloud upon the title to Ms property. (Hamilton v. Cunnings, 1 John. C. R., 517; Story’s Eq., § 700 and seq.) If, however, /‘the claim is based upon a written instrument which is void / upon its face, or which does not in its terms apply to the I property it is claimed to affect, there seems to be no reason '■ for entertaining a litigation respecting it, before it is attempted to be enforced; for the party apprehending : danger has his defence always at hand. In such a case l this court has determined that no action at the suit of the ' party apprehending injury will lie. (Cox v. Clift, 2 Comst., 118.) í The same reason applies to cases where the claim ■requires the existence of a series of facts or the performance of a succession of legal acts, and there is a defect as to one or more of the links. The party must in general wait until the pretended title is asserted. This principle is also jvery well settled by authority. (Van Doren v. The Mayor, &c., of New-York, 9 Paige, 388; The Mayor, &c., of Brooklyn v. Merserole, 26 Wend., 132.) In both these classes of cases ¡the party whose estate is questioned may naturally wish i to have the matter speedily determined, as he may in the {mean time suffer inconveniences and even actual damage on ; account of the discredit attaching to his title by reason of i the unfounded claim. But unless the circumstances are ! such as to sustain an action for slander of title, the law I regards the injury too speculative to warrant its interference. (■ I am not able therefore to concur in the views of the city court of Brooklyn, contained in the opinion which has been laid before us, loathe effect that in every case where an instrument in the hands of another person is calculated to induce the belief that the title of the plaintiff is invalid, an action will lie to set it aside. In this case, therefore, if Onderdonk, the purchaser at the ‘corporation sale, in asserting his title after he had perfected his purchase, would be obliged to prove the laying of the assessment as well as'the other proceedings anterior to the conveyance, I should be of opinion, that the complainant had not established a case for relief» Neither the proceedings of the corporation, nor the conveyance to Onderdonk when obtained, would constitute such a cloud upon the plaintiff’s title as is contemplated by the rule. It would be impossible for Onderdonk to recover the possession of the lots, for he could not establish the existence of the assessment, and the plaintiff might rest in perfect safety. But the 45th section of the charter of the city of Brooklyn provides tliat the conveyance under such a sale as was made in this case, which is to be executed under the corporate seal, shall briefly set forth the proceedings had for the sale of the premises, and that by force thereof the purchaser shall be entitled to the possession and to the same remedy to recover such possession as is provided by law for the removal of tenants who hold over after the expiration of their terms, and that such “ conveyance shall, in any such proceeding be deemed prima facie evidence of the facts therein recited and set forth.” (Laws 1834, p. 108.) A conveyance properly prepared under this provision would recite the ordinance or resolution of the common council imposing the assessment, and such recital would be presumptive evidence of the existence of that ordinance. It is true the owner of the land would be at liberty to disprove it, if he could obtain the evidence ; but the statute contemplates that the purchaser shall be furnished with a document bearing on its face prima facie evidence of a title in Mm, and can only be impeached by proof aliunde of the falsity of its recital. The authorities to which I have referred admit that in such cases the party is not compelled to take the hazard of the loss of his evidence, but may while it is attainable call the party holding such a document into court and have the matter determined at once, so that the cloud upon his title may be dispelled. If the plaintiff would be entitled to set aside a conveyance, upon the facts stated in the complaint, if one had been obtained, then, inasmuch as the purchaser is seeking to obtain such a conveyance and the corporation of Brooklyn is ready to execute one, as is apparent from the terms of the • certificate of sale, it is right that they should be enjoined from proceeding further towards that object. For the single reason, therefore, that the statute gives to the conveyance the effect which has been mentioned, I am of opinion that the city court was right in overruling the demurrer and giving the plaintiff the relief which he sought.

Judgment affirmed.  