
    People ex rel. George W. Ostrander et al., App’lts, v. Alfred C. Chapin, Comptroller, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    1. Taxation—Sale oe land—To whom money can be refunded—Laws 1855, chap. 427.
    On a cancellation by the comptroller, pursuant to Laws 1855, chap. 427, § 85, of a sale of lands for taxes, made after a conveyance had been executed by the comptroller to the purchaser at the tax sale, and also after the purchaser had mortgaged and conveyed, by warranty deed, the lands, purchased on the sale, Meld, that the right to the money paid by the purchaser, on his purchase at the tax sale, is vested in the grantee of the original purchaser. That the grantee is an assignee of said purchaser within this section. Following People ex rel, Ostrander v. Olia/pin, 7 N.Y. State Rep., 309.
    .«$. Same—Right follows tax title.
    The right, under the statute, to” have the money paid on the tax title refunded is an interest connected with the tax title and follows it, unless excluded by the terms of the deed.
    Appeal from an order of the supreme court, general term, third department, affirming an order of the comptroller.
    
      Arthur L. Andrews, for app’lts; Charles F. Tabor, attorney-general, for resp’t.
    
      
       Affirming 12 N. Y. State Rep., 403.
    
   Andrews, J

The sole question is whether, on a cancellation by the comptroller, pursuant to section 85 of chapter 427 of the Laws of 1855, of a sale of lands for taxes, made after a conveyance had been executed by the comptroller to the purchaser at the tax sale, and also after the purchaser had mortgaged and conveyed by warranty deed, the lands purchased on the sale, the right to the money paid by the purchaser on his purchase at the tax sale, which money, by section 85, the comptroller is directed to refund out of the state treasury to the “purchaser, his representatives or .assigns,” is vested in the original purchaser, or in his Srantees or mortgagees. The question is not free from ifficulty.

In People ex rel. Millard v. Chapin (40 Hun, 386) the court of the second department sustained the right of the grantee under circumstances similar to those in the present case, and the court from which the present appeal is taken concurred in this view. The right to the moneys, in whomsoever vested, is given by, and depends upon, the statute. It does not accrue to anyone until the sale is annulled by the comptroller. The money paid on the purchase at a tax sale is paid for the land, and the purchaser accepts in the first instance a certificate, and afterwards, unless the land is redeemed, a deed from the comptroller is a substitute for the money paid. The failure of title, as was said in People ex rel. Ostrander v. Chapin (105 N. Y., 309; 7 N. Y. State Rep., 209), is the essential ground upon which the state makes restitution. It would seem to comport with the equity of the statute that restitution should be made to the person who, at the time of the ascertainment of the invalidity of the tax sale and its cancellation, holds the land under the tax title, whether he be the original purchaser or his grantee. He is the person, presumptively, who is injured by having his title set aside as invalid, and the person who, it would seem, is equitably entitled to be paid what was received by the state for the title so annulled.

_ We think the case of People ex rel. Ostrander substantially decides the question now presented. It was held in that case that the assignee of the certificate of sale issued by the comptroller was the person who, under the eighty-third.' section of the act of 1855, was entitled to recover the money paid by the purchaser to the state on an invalid tax sale in a case where no conveyance had been made by the comptroller. It certainly would not have placed the claimant in that case in a worse position if, before the discovery of the invalidity of the sale, the comptroller had, pursuant to the certificate, conveyed to him the land. The merger plainly would not_ have extinguished any right to the purchase-money which was vested in her as assignee of the certificate,

We think the grantee of the original purchaser is an assignee within section 85 of the act of 1855. There are-cases having some analogy .to the present one which tend to-support our conclusion. Jackson v. Bowen; 7 Cow., 13; Robinson v. Ryan, 25 N. Y., 320; Danforth v. Suydam, 4 id., 66.

When the conveyance is with warranty the sum received will diminish the grantor’s liability on his covenant, and if the deed is a quit claim merely, the right under the statute to have the money paid on the tax sale refunded is, we think, an interest connected with the tax title, and which follows it, unless excluded by the terms of the deed.

The order should be affirmed.

All concur except Danforth, J., not voting.  