
    LOFTIS WOOD, Plaintiff, v. ALFRED C. SQUIRES, Defendant.
    
      Contract for purchase of land—Assessments and assessment sales—when incumIrranees—Effect of statute of Imitations on lien of assessment.
    
    Defendant agreed to purchase certain land of plaintiff, the deed to be delivered on the 3d day of January, 1874. At the time agreed upon, there were two assessments, which had been levied upon the premises, and confirmed by the trustees of the village of Williamsburgh, one in January, 1851, and the other in July, 1852, both of which stood upon the records unpaid and undischarged; the premises had also been twice sold for unpaid assessments, once in November, 1847, and again in October, 1851, both of which sales appeared on the records as unredeemed and uncanceled, but neither of the vendees had ever entered into the actual possession of the premises, or exercised control over the same. On accoimt of these assessments and sales, defendant refused to complete the purchase. Held, that he was justified in so doing. That they were valid incumbrances on the premises, which the defendant was entitled to have discharged before he could be required to perform the contract on his part.
    In the absence of any adverse possession, the possession follows the legal title.
    Case agreed upon and submitted without action, under section 372 of the Code. The facts are stated in the opinion.
    
      Theodore T. Jackson, for the plaintiff.
    
      Clement & Cooke, for the defendant.
   Talcott, J.: •

By the statement contained in this case, it appears that the parties, in December, 1873, entered into an agreement in writing, whereby said Wood agreed to sell, and said Squires to purchase, a certain lot of land on Humbolt street, in Brooklyn. Squires was to pay on said purchase, the sum of $400, January 3d, 1874, and give his bond and mortgage for the balance of the purchase-money. On the said 3d day of January, 1874, Wood executed, acknowledged and tendered to Squires, a deed conveying the premises to Squires in fee, with covenants of warranty and against incumbrances, and other usual full covenants,” and demanded the payment of the $400, and the execution of the bond and mortgage. In January, 1851, an assessment was levied upon the premises, and confirmed by the trustees of the village of Williamsburgh, and, in July, 1852, another assessment was levied upon the same premises, and confirmed by the common council of the city of Williams-burgh. The first of said assessments was for fifty dollars, and the second was for sixty-nine dollars. These assessments, it is admitted, became, at their several dates, valid liens on the premises, and warrants were issued thereon to the collectors, the same returned uncollected, and the same stand upon the records unpaid and undischarged. No sale of said premises has ever taken place on either of said assessments.

On the 29th of November, 1847, the premises were duly sold by the trustees of the village of Williamsburgh, for an unpaid tax, to George W. Niles for the term of forty-five years, and a declaration of sale was duly issued to said Niles; and, in October, 1851, the premises were again sold by said trustees, for another unpaid tax, to George Ricard for 100 years, and a declaration of sale duly issued to Ricard. The sales appear on the records as unredeemed and uncanceled, but neither of the vendees has ever entered into the actual possession of the premises, or exercised control over the same.

Squires objects to complete his contract, because of the said outstanding assessments and the said sales. Wood, the vendor, insists that the liens of the assessments, on which no sale has been had, are barred by the presumption of payment arising from lapse of time, and that the claims of Niles and Ricard under the sales, are barred by the statute of limitations, more than twenty years having elapsed since the title of said purchasers accrued, without any steps taken to obtain possession. It is agreed that all the proceedings upon the assessments and sales in 1847 and 1851, were valid and effectual, and according to the provisions of law.

The question intended to be submitted to the court apparently is, whether the vendor is bound to clear away the apparent incumbrances and outstanding titles, before he can compel a performance of the contract on the part of the vendee.

As to the sales to Niles and Ricard, this seems to be quite plain. By section 49 of the act to condense and amend the several acts relating to the village of Williamsburgh, passed April 23d, 1844, the sales and declarations of sale, made in pursuance thereof, gave the legal title to the purchaser from the time of the purchase. It does not appear from the case, that the statute of limitations can constitute any defense against the titles of Hiles or Ricard, for it does not appear that the premises have been held adversely to their titles, at any time since such titles accrued. In fact it is not shown that the premises have ever been occupied at all. In the absence of an adverse possession, the possession follows the legal title, and section 78 of the Code, is to be read in connection with section 81.

The question as to the assessments upon which no sales have been made, is more embarrassing. Yet on the whole, the vendor, before he can compel the vendee to take the title, must clear away these assessments. The acts under which these assessments were levied, declare that the assessment shall be a lien from the time of confirmation. Ho period at which the lien will expire is fixed by the statute, nor is any time specified in the statute, after which the assessments shall be deemed discharged, or within which the proceedings provided for their collection shall be instituted. The statute creating an absolute presumption of payment after the lapse of twenty years, without part payment or a written acknowledgment has no application, otherwise than by analogy, to the case. It is by its terms confined to judgments rendered in courts of record and to rights of action accrued on a sealed instrument. The general presumption of payment, applicable to stale demands, which exists independently of the statute, might doubtless be applied to such a case, and would doubtless apply with great force, as a question of fact and presumption, but nevertheless it is a question of fact. Upon the principles which have been settled on this subject, we do not think the vendee is bound to take a title incumbered with this doubt. In the case last cited, Folger, J., delivering the opinion of the court, says: “ If there be any' reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract the court considers this a cir cumstance which renders the bargain a hard one for the purchaser and one which it will not in the exercise of its discretion compel Mm to execute.”

For the purposes of this case, then, we answer the fourth question contained in the case submitted to us, that the said assessments and sales stated in the case submitted, are, and each of them is, a valid incumbrance on the premises described in the complaint, which the said defendant Squires is entitled to have discharged, before performing his contract.

Judgment to be entered according to the stipulation in the case.

Present—■ Babnabd, P. J., Tappen and Talcott, JJ.

Judgment ordered accordingly. 
      
       2 R. S., 301.
     
      
       Jackson v. Sackett, 7 Wend., 94.
     
      
      
         Morange v. Morris, 3 Keyes, 48; Brooklyn Park Commisioners v. Armstrong, 45 N. Y., 234.
     