
    Wilkins U. Greene, as Executor, Plaintiff, v. Sophia Bunzick and Others, Defendants. Henry Kruse, Judgment Creditor, Appellant; William J. Buttling, Sheriff of the County of Kings, and Others, Respondents.
    
      Mortgage foreclosure—provision in the terms of sale requiring-the payment of all “payable ” tax and assessment liens, construed to embrace installments of an assessment not yet payable.
    
    Where the judgment entered in an action to foreclose a mortgage contains the usual clause requiring the officer making the sale to pay out of the proceeds all taxes and assessments which are liens upon the property sold (Code Civ. Proc. § 1676), and the terms of sale provide that “all taxes and assessments duly confirmed and payable, which at the date of sale are liens or incumbrances' upon said premises,” are to be allowed out of the proceeds' of sale, the terms of sale cannot be held to modify the judgment, but are to he construed in connection with the judgment, and, as thus construed, embrace unpaid installments of an assessment levied under chapter 310 of the Laws of 1892, by the terms of which the assessment, although payable in five annual installments, becomes a lien for its entire amount upon its apportionment and confirmation.
    The word payable, used in the terms of sale, includes all taxes which are liens ■ upon the premises.
    Appeal by Henry Kruse, a judgment creditor, from so much of an order of the County- Court of Kings county, entered in the office of the clerk of the county of Kings on the 4th day of October, 1897, as denies his application to restrain the sheriff of Kings county from paying, out of the proceeds received from the sale of lands under a judgment of foreclosure of a mortgage, certain taxes levied and assessed against the premises.
    
      George W. McKenzie, for the appellant.
    
      Theodore Kiendl, for the purchasers and mortgagee, respondents.
    
      Hugo Hirsh, for the sheriff, respondent.
   Hatch, J.:

The sum realized upon the sale of the premises was more than sufficient to pay the mortgage debt. This surplus' is sought to be reached by a judgment creditor in discharge of his judgment. The purchasers and the mortgagee insist that it is applicable to the payment of certain taxes to the exclusion of the judgment -creditor, and the sheriff submits his action to the direction of the court. Whether the surplus shall be used to discharge the taxes depends upon whether they constitute a lien and incumbrance upon the premises, sold under the foreclosure, which are presently payable.

The terms of sale provide that “ all taxes and assessments duly confirmed and payable, which at the date of sale are liens or incumbrances upon said premises, will be allowed by the sheriff out of the purchase money, provided the purchaser shall previously to the delivery of the deed produce to the sheriff proofs of such liens and duplicate receipts for the payment thereof.” It is not disputed but that a valid tax was levied in pursuance of the authority conferred by chapter 310 of the Laws of -1892. The claim of the appellant, however, is that the tax thus levied was payable in installments, and that all of the installments which had fallen due at the time of the sale have been paid, in consequence of which none are now payable. The respondents claim that the terms of sale are much broader than this and embrace all taxes which are liens upon the premises.

By section 3 of the act the assessors are required to levy an assessment in a .specified manner upon the property subject thereto. The section then provides: And the said assessment shall thereupon become and be a lien and charge upon the several pieces or parcels of land to the amount so apportioned and assessed upon them respectively, with the interest to accrue thereon as hereinafter provided.”

By section 5 the assessors, after apportionment and confirmation of the assessment, are required to divide the same into five equal parts or installments, and to file a report and duplicate of the same in various city offices. Immediately upon the filing of the report the common council of the city is required to “ issue its warrant to the collector of taxes and assessments for the collection of one-fifth part or installment of said assessment, accompanied by an abstract of said assessment showing the amount of such installment charged against each parcel affected by. said assessment, and the same shall thereupon become payable and be collected by the said collector * * * and the said warrant shall also authorize the collector of taxes * * * to receive payment of any subsequent installment or installments with interest.” By section 6 all subsequent installments become due and payable on the fifteenth day of November in each year, and are required to be collected in like manner as the first installment.

We think there can be no question but that, under the terms of the act, the assessment became a lien and incumbrance upon the land for the full amount of the tax when the amount of the same was apportioned and the assessment confirmed by the proper officials in the manner prescribed by the statute (McLaughlin v. Miller, 124 N. Y. 510, 515), and that such lien ivas unaffected by the fact that the tax was to be collected in installments. It is not contended but that all of the steps essential to a valid tax were taken as required by the act. We, therefore, conclude that the tax for the full amount constituted the same a lien and incumbrance upon the land.

Was the tax payable within the terms of sale? By section 1676 of the Code of Civil Procedure the officer making the sale, under a judgment of foreclosure, “ must, out of the proceeds, unless the judgment otherwise directs, pay all taxes, assessments and water rates which are liens upon the property sold.” It is not claimed, in the present case, that there was any clause in the judgment which directed any different application of the moneys realized upon the sale from that required by the usual judgment entered in foreclosure actions' directing the payment of taxes. The judgment would seem, therefore, to require payment of all taxes which are liens. The terms of sale cannot be held to modify the terms of the judgment, but are to be construed in connection with it, and as the judgment directed the payment of all taxes which are liens upon the property, the word “ payable ” must be held to embrace them. The terms of sale in the present case are in the usual form adopted1 by the officer who made the sale, as appears from an examination of the printed form used in all such cases.

The policy of the law is to authorize the discharge of all liens subject to the mortgage and such liens as are created by public authority that may be discharged, iir order that the premises may descend to the purchaser freed of all liens. We should not limit this result by an adverse construction of doubtful words and phrases, rather should we construe them to harmonize with the terms of the authority authorizing the sale, and in accordance with the evident policy of the law. There should be no departure from this rule unless the language used clearly shows an intent to limit the character of the liens which might have been discharged under the operation of the general rule. There is nothing in the discussion in McLaughlin v. Miller (57 Hun, 430) which conflicts with this view. The expense of the improvement in that case was distributed and made payable in different years. In this respect there is resemblance, but there was nothing in the act providing for that improvement, which made the whole cost a lien, upon the land. On .the contrary, the assessment was levied and collected ea_ch year, and the installment thus levied was all that became a lien in any one year.

In the present case, by the express terms of the act, the whole tax became and remained a lien upon the land until paid. The tax was distributed over five years, hut it was a lien and payable as-directed when first levied. It was, therefore, such a lien as was directed to be discharged by the judgment and the terms of -sale.

The order should, therefore, be affirmed, without costs.

All concurred.

Order affirmed, without costs.  