
    Erie County Savings Bank, Respondent, v. Casper Schuster and Others, Appellants, Impleaded with William Clyde and Others, Defendants, and Erie Railroad Company, Respondent.
    
      Tax title acquired by the State and transferred by the certificate of the State Engineer and Surveyor— it is prima facie valid and a defense to the holder thereof against a priot'mortgage on the land, although the amount due to the State is not fully paid.
    
    In an action brought to foreclose a mortgage upon real property, it appeared .that subsequent to the execution of the mortgage the premises were conveyed by the Comptroller of the State- of New York to the ,People of the State of New York upon a sale for unpaid taxes. ' It further appeared by the certificate, of the State Engineer and Surveyor that one Barbara Schuster subsequently purchased all the interest of the People of the State of New York in the premises in question paying a portion of the purchase price and leaving a balance-of the purchase price, amounting to §500, remaining due; that upon the execution of such certificate by the State Engineer and Surveyor, the said Schuster, with her husband and family, entered into possession of the mortgaged premises and remained in such possession until her death, after which her husband, and children continued in the possession. It did not appear that the said Barbara Schuster or her representatives ever obtained a- conveyance of the premises from the State or ever paid the balance of the purchase price.
    
      
      Held, that the complaint in the foreclosure action should he dismissed as to the defendants who claimed under the said Barbara Schuster;
    That, prima facie, the deed from the Comptroller of the State of New York to the People of the State of New York vested in the State the title to the premises in question, and that if there were any facts or circumstances rendering such deed void, it was incumbent upon the plaintiff to prove such facts or circumstances;
    That, not having made such proof, the plaintiff was not entitled to question the title which Barbara Schuster received from the State, because she or her representatives did not fully discharge their obligations to the State.
    Appeal by the defendants, Casper Schuster and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of, April, 1904, upon the decision of .the court, rendered after a trial at. the Erie Special Term, directing the foreclosure of a mortgage and a sale of the property covered thereby.
    The action was commenced on the 13th day of April, 1896, to foreclose a mortgage bearing date the 10th day of January, 1869, executed by the defendant William Clyde and delivered to the plaintiff to secure the payment of $1,500 at the expiration of one year from date, according to the conditions of a bond bearing even date therewith, and upon which there was due and unpaid of principal and interest at the time of the trial the sum of $1,480.90.
    
      Edward R. Bosley, Eugene V. Chamberlain and Robert Girven, guardian ad litem, for the appellants.
    
      Samuel F. Moran, for the respondent.
   McLennan, P. J.:

All the defendants made default except the Erie Railroad Company, which answered and alleged that by mesne conveyances executed subsequent to the mortgage in suit it acquired a right of way through the premises and other interests therein, and it asked that the mortgaged premises be sold in the inverse order of alienation, and it was so provided in the decree, practically with the consent of the plaintiff, and except the defendants Schuster, who appeared and answered by alleging in substance that in 1882, by virtue of proceedings duly taken for the sale of the premises for the nonpayment of taxes assessed against it the People of the State purChased the same, and that, it not having been redeemed, the Comptroller, in accordance with the provisions of the statute, duly executed a deed of the ¡same .to the People of the State which vested in it the absolute title thereto and which was paramount to any interest -of the plaintiff or title of the mortgagor or bis grantees. Such defendants also alleged that in the year 1888 one Barbara Schuster, now deceased,, .the wife of the defendant Casper Schuster, and the mother of the other defendants Schuster, purchased the premises from the State, received a certificate evidencing that fact, and entered into possession of the same thereunder, and that the appellants were in possession as the heirs and next of kin of said Barbara Schuster, deceased, and as such claimed to own the same, and such defendants urged that their rights as between them and the State could not be determined in this action and, therefore, asked that the complaint as to them-be dismissed, with costs.

It appears without contradiction that on the 31st day of October, 1884, the Comptroller of the State of New York conveyed the premises in question to the People of the State of New York by deed duly executed that day, which deed was recorded in the clerk’s office of Erie county on the 5th day of April, 1887. Such deed, among other things, recited in substance that default was made in the payment of taxes levied upon the premises in question prior to the' year 1876, and that such taxes had remained unpaid for two years from the first day of May following the year in which they were assessed; that the Comptroller, after due notices for that purpose were published and given according to law, and after compliance with all the provisions of law by him to be performed, did sell at public auction at the Capitol, in the city of Albany, in the month of November, in the year 1881, so much of each of the parcels of land so as aforesaid charged and remaining unpaid as was necessary to satisfy and discharge the said taxes .and the interest and charges due thereon at the time of the sale, and that said party of the second part (The People of the State) became entitled, by transfer., under the provisions off section 48 of chapter 427 of the Laws of 1855, as amended, etc., to the mortgaged premises, which are then described; that said pieces or parcels of laud therein described were sold iby the said Comptroller at the said sale under and by virtue of the said act, and that “ the said pieces or parcels of land (including the pr.emises in question) so as aforesaid sold and hereby intended to be conveyed have not been redeemed within the time prescribed by law for the redemption thereof; ” then follows the clause conveying to the People of the State of New York among others the premises in question with the hereditaments and appurtenances to the same belonging.

It also appears by the certificate of the State Engineer and Surveyor that Barbara Schuster, pursuant to a resolution of the. Commissioners of the Land Office, passed the 17th of November, 1887, did on the 8th day of February, 1888, purchase all the interest of the People of the State of New York in the premises in question, paying $508 thereon, there remaining due the sum of $500 to be paid in the manner required by law.

It also appears without contradiction that upon the execution of such certificate by the State Engineer and Surveyor, Barbara Schuster with her husband and family entered into the possession of the mortgaged premises; that she remained so in possession until her death, after which her husband and children have ever since continued in such possession. It nowhere appears that Barbara Schuster or her representatives obtained a conveyance of the premises in question from the State, or that the balance of $500 of the purchase price was ever paid by her or them. Neither does the contrary appear, except as to the deed, although allusion is made to the non-payment of the balance of the purchase price in the briefs of counsel and by the learned trial court. We, however, deem that fact of no importance and for the purposes of this appeal shall assume that the balance of the purchase price, $500, agreed to be paid by Barbara Schuster, was not paid by her or by her representatives.

We think that prima facie the deed from the Comptroller to the People of the State vested in the State the title to the premises in question, and that if there were any facts or circumstances which rendered such deed void it was incumbent upon the plaintiff to prove such facts or circumstances; that as the record stands, not only all the rights of the plaintiff under its mortgage, but all the rights and interests of the mortgagor and his grantees became vested in the State by virtue of the deed from the Comptroller, and that being so, the plaintiff in this action is not entitled to question the title or interest received from the State by Barbara Schuster, under whom the appellants claim. The People of the State of New York, in whom the learned tidal court evidently assumed by his rulings the title of the premises in question was, are not made a party to this action, and it appears that the State assumed to sell whatever interest it had in the premises to Barbara Schuster. We think it is not competent for the plaintiff in this action to urge that the defendants Schuster have not fulfilled their obligations to the State and, therefore, that the plaintiff is entitled to any advantage which may result from such failure on their part. It is hardly necessary to cite authorities to show the correctness of the appellants’ contention. The title of the State, their grantor, was perfect so far as appears by the recitals in the deed to it. It was such as to destroy the lien'of the mortgage upon the premises in question. It was Such as to cut off any interest that the mortgagor or his grantees had in or to such premises. In short, the absolute title in the same, vested absolutely in the State, and the plaintiff under such circumstances cannot be heard to say that the title or interest which the State purported to convey or give to Barbara Schuster under whom the appellants claim was not valid because she or her representatives did not fully discharge their obligations to the State, their grantor.

We are led to conclude that the complaint should have been dismissed as to the appellants, with costs, and that the judgment appealed from should be modified so as to' provide that the rights or interests of the defendants Schuster are not affected by the decree m this action, but that as to them the judgment is reversed and the complaint dismissed, with costs.

All concurred, except Hiscock, J., not voting,

Judgment as to the defendants Schuster reversed and the complaint dismissed as to them, with separate bills of costs to each of the said defendants answering separately, upon questions of law only, the facts having been examined and no error found therein.  