
    David Cromwell, County Treasurer of Westchester County, Pl’ff and Resp’t, v. Edward C. Wilson, Executor of Edward J. Wilson, Deceased, and Marie M. MacLean et al., Def’ts and App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1889.)
    
    Taxes and assessments—Tax titles—Mortgages—Foreclosure—Curative ACTS.
    The plaintiff is the assignee of a mortgage made December 9, 1868, on certain lands in the town of Grcenburgb, Westchester county, and commenced this action to foreclose the mortgage against the executor of the mortgagor, and also against Marie M. MacLean, in possession of the lands under leases for non-payment of taxes for 1878, 1879, 1881, 1886 and 1887, the sales having been made the year immediately preceding such leases, for taxes unpaid the year prior to such sales, respectively, all of which leases and sales were made pursuant to chapter 610, Laws of 1874, applicable only to Westchester county. No notice of the mortgage by any holder thereof was ever filed with the town clerk of the said town, and, on the other hand, no notice of the tax sales or leases was filed with the county treasurer, as required by section 7, chapter 289, Laws of 1868. Held,, (1) That chapter 610, Laws of 1874, did not repeal section 2, chapter 289, Laws of 1868. (2) That inasmuch as notice was not given to the county treasurer of said tax leases and sales, the mortgage was paramount to the tax sales and leases. (3) That the defendant, MacLean, having in her defense claimed the fee to the lands in hostility to the mortgage, the plaintiff was entitled to assail the assessment of taxes, and the sales and leases made thereunder, and that the validity of such tax sales and leases was a proper subject for decision in this action. (4) That the lands being the property of E. J. Wilson, who was always a non-resident of the county, should have been designated on the tax-rolls as "non-resident lands,” and so assessed, and after his death they were not assessed to E. 0. Wilson, trustee, but to “E. J. Wilson’s estate.” The description of the farm, as well as of the person, was also defective. The warrants were also incomplete when signed by the board of supervisors, and the assessment-rolls were not delivered, nor a copy thereof deposited for examination, as required by the statute. These defects were not mere irregularities, but were jurisdictional, and could not be cured by chapter 637 of the act of 1887, which was passed to confirm and validate tax sales in Westchester county, made under the acts of 1874 and 1877.
    Appeal from a special term judgment in an action tried before Mr. Justice Dykman, at Westchester in September-1888.
    The action was brought to foreclose a mortgage, covering property in the town of Grreenburgh, made by Edward J. Wilson on the 9th day of December, 1868, to one Francis M. Randall, who assigned the same to the county treasurer of Westchester county. No interest has been paid on this morgtage since the 9th day of June, 1874.
    Wilson, the mortgagor and owner of the lands, died in April, 1876, in New York city, where he had always resided, leaving a will making the defendant, Edward C. Wilson, of Peekskill, in Westchester county, trustee of the said lands.
    The mortgaged premises were sold for non-payment of taxes in the years 1877, 1878, 1879, 1881, 1884, 1885 and 1886.
    The defendant, Marie M. MacLean holds leases covering the mortgaged premises, for non-payment of taxes, made in the years 1878, 1879, 1881, 1886 and 1887, the sales having been made the year immediately preceding such leases, for taxes unpaid the year prior to such, sales.
    Those sales and leases were made pursuant to chapter 610 of the Laws of 1874, which is only applicable to Westchester county.
    The leases made to the town of Greenburgh in the years 1878, 1879 and 1881 were duly assigned to Wm. M. Oliffe, who died in 1885, leaving a last will and testament, wherein and whereby he gave and devised all his property to the defendant, Marie M. MacLean.
    The defendant, MacLean, alone answered, denying that her interest was subordinate to plaintiff’s mortgage, and alleging that, under certain tax leases, she was the owner of the property, and her interest and title paramount to plaintiff’s mortgage. The plaintiff replied denying such allegations of new matter, and alleged that the tax titles and claim of defendant were void and of no force, as the assessments and sales were void and illegal.
    During 1874 and 1875 the mortgaged premises were not assessed as “lands of non-residents;” but in the resident column and until 1878, the tax warrant was signed and delivered by the board of supervisors, in blank, and from 1876 to the present time, the property, instead of being assessed to the said Edward 0. Wilson (a resident), as trustee, was assessed to “ Edward J. Wilson, estate of ” and in no year have the assessors certified that the tract was not subdivided, and it was assessed without subdivision.
    The legislature in 1887, chapter 627, section 2, confirmed all tax sales, etc., made in Westchester county, under chapter 610 of the Laws of 1874, and the amendatory act, chapter 193 of the Laws of 1877.
    Section 25 of the Laws of 1874, chapter 610, makes provision for the protection of any mortgagee of premises sold for taxes, by filing notice of his mortgage with the town clerk of the town where the mortgaged premises are situated. No notice was ever filed as required by this section by the plaintiff or any former holder of the mortgage.
    Plaintiff claimed that his rights as mortgagee were not impaired or in any way affected, inasmuch as no notice was filed with the county treasurer, under the Laws of 1868, chapter 239, section 7.
    The defendant MacLean claimed that this law was repealed by the law of 1874, chapter 610, section 26, and if not repealed, but yet in force, the plaintiff has still only the right to redeem, and that the tax sales and leases in question, conceding that the notice provided in the law of 1868 was not given, were paramount and not subordinate to the plaintiff’s mortgage.
    The special term decided that inasmuch as the notice was not given under the law of 1868, the mortgage was paramount to the tax sales and leases, and held that the law of 1868 was not repealed by the law of 1874.'
    
      Anri the plaintiff had judgment of foreclosure and sale, from which this appeal is taken.
    O. Close (.Malcolm Graham,of counsel), for app’lts; Wilson Brown, for resp’t.
   Pratt, J.

This is an action of foreclosure and the questions raised relate principally to certain tax sales. It seems to be conceded that if section 2 of chapter 239 of the Laws of 1868 is not repealed by chapter 610 of the Laws of 1874, then the mortgage is not invalidated by the tax sales. But even assuming it is not repealed, it becomes a serious question whether (if the taxes are duly levied and the sales regularly made) the mortgagee has anything more than a right to redeem after the notice required by said section 2 of Laws of 1868, or, in other words, whether this section was not passed, among others, for the purpose of aiding the purchaser to perfect his title under the tax sale. If such is the case the plaintiff would have a right to foreclose his mortgage, but the property would have to be sold subject to the lien of the tax sale.

But the plaintiff here seeks not only to foreclose his mortgage, but to try the question of the title of the purchaser at the tax sale and to have such asserted lien declared no lien as against his mortgage, so that assuming that the said section 3, chap. 389 of Laws of 1868, is not repealed by the statute of 1874, the taxes may still be a lien and the judgment rendered below unauthorized.

It becomes necessary, therefore, to determine whether in any view the taxes and sales thereunder ever became an existing lien.

We think the plaintiff was entitled to assail the assessment sales and leases in question, as the defendant, McLean, claimed the fee in hostility to the mortgage.

If her contention was sound it would render a judgment and sale of no value to the plaintiff. Why should the plaintiff be put to the expense of redeeming from the tax sales if there never was any valid tax sale? If the tax was void he could not tack the sum so paid upon his mortgage or recover it back from the defendant.

The alleged liens virtually destroy the security of the mortgage, and no good reasons seem to exist why they should not be determined in this action.

It seems to be conceded that thé taxes were originally assessed and levied contrary to law, but the defendant claims that the defects were mere irregularities not jurisdictional; that the legislature had power to cure such defects and irregularities, and that it has done so by subsequent statutes.

Some of the defects complained of, however, seem to us jurisdictional, and therefore not within the curative power of the legislature.

The property never was properly taxed inasmuch as the original owner, E. J. Wilson, was a non-resident, and the lands were never designated as such. Neither were they properly assessed alter the death of E. J. Wilson, to E. C. Wilson as trustee.

It is also apparent that the description of the person was defective as well as the description of the farm. The warrants were incomplete when signed by the board of supervisors, and the assessment rolls were not delivered nor a copy thereof deposited for examination as required by statute.

These matters were jurisdictional. Clark v. Norton, 49 N. Y., 243; 40 Barb., 644; 65 N. Y., 263.

The findings of fact are sufficiently supported by the evidence, and the conclusions of law found necessarily follow.

We have examined the various exceptions, and find none which will warrant a reversal of the judgment. It is, therefore, affirmed, with costs.

All concur.  