
    Mary Leinen, Resp’t, v. John J. Elter, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1887.)
    
    Practice—Partition of lands—Taxes are a general men—Parties HAVING GENERAL LIENS MUST BE MADE PARTIES IN ORDER TO HAVE THEIR LIENS PASSED UPON—CODE ClV. PRO., §§ 1538, 1578.
    The action was for the partition of lands owned hy the parties as tenants in common. And part of the land was in the city of Rochester, which was ordered sold, and a certain part of the proceeds thereof were held by order of the court to pay certain tax liens levied by the city, which liens consisted of certain certificates given by the city to certain parties on the sale of the lands for taxes and certain unpaid assessments for local improvements. Neither the city of Rochester nor the holders of the tax certificates were made parlies to the suit, but after the land was sold and the report of sale was confirmed, it was referred to a referee to take proof of the several claims, taxes and liens against the lands and proceeds of sale by reason of said tax certificates, and the plaintiff was required to give eight days’ notice to the city of Rochester and the purchasers of said certificates of such reference. The report of the referee on such reference found the taxes illegal and void, and thereupon the court ordered the final judgment in the partition suit amended so as to direct the distribution of the part of the proceeds held to pay taxes, etc. Held, that the taxes being general liens or incumbrances, if valid, the question of their invalidity could not be litigated between the owner of the premises and the city in the partition suit without making the latter a party thereto. See Code Civ. Pro., §§ 1538, 1578. That the order should be reversed because the special term lacked jurisdiction.
    Appeal from an order entered at special term, amending the final judgment in a partition suit and enjoining the city of Rochester from making, executing or delivering to certain persons any deed in pursuance of certain tax sales.
    This action was for the partition of-lands owned by the parties as tenants in common, part of which were located within the city of Rochester. By the interlocutory judgment the city lots were ordered to be sold and were sold, and the proceeds brought into court and distributed among the parties, except the sum of $1,800 which was held by the order of the court for future distribution among the parties, if the same was not needed, or some part thereof, to pay the tax liens levied on the lots by the city of Rochester. A general tax had been levied upon the property, and an assessment for local improvements had been made, which in the aggregate amounted to the sum of about $1,400. The premises had been sold for the general tax, and bid in, at one of the sales by Mrs. 0. 0. Seymour, who received a certificate of sale, and at the other sale, W. W. Chapin was the purchaser, who also received a like certificate. Mrs. Seymour paid to the city treasurer the sum of $482.62, the full amount of her bid. Mr. Chapin paid on his bid $229.48. The assessments for local improvements were unpaid at the time of the sale of the lots under the decree in the partition .suit, and the city gave out and claimed that the taxes were all valid and were enforceable in the mode and manner pointed out by the city charter. By the city charter taxes properly assessed are a lien upon the premises, and collection may be enforced by a sale of the same. Neither the city of Rochester or its treasurer were made parties to the action.
    After the interlocutory decree was entered in the partition suit, and after the premises were sold thereon and the report confirmed, it was referred to a referee to take proof of the several claims, taxes and liens against the lands, and proceeds of sale, by reason of said tax certificates, so held by the purchasers, and to report the same with his opinion thereon to the court, and the plaintiff's attorney was required to give eight days’ notice to the said purchasers on such reference, and to the city of Rochester and the treasurer of Monroe county. The parties appeared before the referee and proofs were taken as to the mode and manner of making the several assessments, and as to all proceedings connected with the sale, which were reported to the court together with the referee’s opinion. By his report he found that all the taxes were illegal and void, and thereupon, on notice to the city of Rochester and its treasurer, the court made an order-amending tire final judgment of distribution and directing the payment of the said sum of $1,800 to the parties, and declared, that all the taxes were null and void and the same were vacated and set aside, and the city of Rochester was permanently enjoined and restrained from making, executing or delivering to either Seymour or Chapin any deed in pursuance of the said. sale.
    From that order the city of Rochester and its treasurer has taken an appeal.
    
      J. Van Powers, for appl’t; William H. Olmstead, for plff’s., in partition suit; William H. Shuart, for def’ts.
   Barker, J.

The appellants contend that the order appealed from should be reversed for the reason that the special term did not acquire jurisdiction over the subject-matter of the controversy. The question may very properly be first considered.

I am of the opinion that the appellants’ position is entirely correct, and that so much of the order as is appealed from should be reversed without considering the validity of the taxes assessed upon the property and claimed by the appellants to be a valid lien thereon. The premises were assessed as an entire parcel, and the taxes levied thereon, if valid, became a lien upon the whole thereof, and were not limited to the respective share or interest of either of the several owners.

If the taxes in dispute are valid, then they are a general lien or incumbrance on the whole of the premises. This is not disputed by the respondents, the parties to the partition suit, and the proceedings under review were instituted by them to relieve the fund from all claims for taxes and assessments set up by the appellants and mentioned in the order. The taxes being general liens or incumbrances, if valid, the question of their invalidity could not be litigated between the owner of the premises and city of Rochester without making the latter parties in the partition suit thereto.

The lien and incumbrance, if valid and not paid, may, by appropriate subsequent proceedings instituted by the city, ripen into an ownership of the land or a right of possession and use thereof for a long period of years under the provisions of the city charter authorizing a sale of lands for unpaid taxes. The city may become the purchaser on such sale, and possesses the power to transfer a certificate of sale, or seH the premises, if no redemption is made by the owners. If the owners of the premises desired to question the validity of the taxes and have the sale declared void in the partition suit, they should have made the city of " Rochester a defendant therein.

The statutes regulating partition of lands contain an express provision on the subject,- which has not been observed in the partition proceedings, and the omission to do so is fatal to the validity of the order. By section 1538 of the Code of Civil Procedure, it is declared who must be hiade parties in an action for the partition of land, and persons having liens and incumbrances thereon are not included in such requirement. In the next section it is stated who may be made defendants and the provision includes all persons who may have a hen or interest on the entire property. If they are made parties then the final judgment must award to the party holding the lien his entire right and interest in the property or the proceeds thereof, or the court may reserve or leave unaffected his entire right and interest, or any portion thereof. The section then concludes with a broad qualification intended as a fuh protection to the parties in interest, and is expressed in the following language : “A person specified in this section, who is not made a party, is not affected by the judgment in the action.” In subsequent sections provision is made relative to making persons party defendants who may have hens and incumbrances on an undivided share or interest in the property, and for the ascertainment of the hens of creditors upon the several shares of the several owners. Secs. 1540,1557,1561,1573. In another section, 1557, the effect of final judgment in a partition suit is declared, and it is therein expressly stated, that a final judgment shah not affect the rights and interests of persous as reserved in section 1539. By chapter 393 of the Laws of 1883, section 1578, is amended, and it is there provided that a party having any specific hen upon an undivided share or interest at the time of the filing of the notice of the pend-ency of the action shah not be affected by the judgment unless he is also made a party thereto. Prior to the revised statutes, an incumbrancer upon an undivided share of an estate was not a proper party to a suit for the partition of the whole property. His interests were not affected by the partition.

The hen attached to the divided share in case of actual partition, and in case of sale the purchaser took the land subject to the incumbrance. Under the Revised Statutes creditors having specific hens upon an undivided share of the premises sought to be partitioned could be made parties to the proceedings, and persons holding general hens or incumbrances might be brought in by notice so as to bind them by the sale. 2 R. S., 318, §§ 10, 42, 43-62; Harwood v. Kirby, 1 Paige, 470; Halsted v. Halsted, 55 N. Y., 442.

In that way the purchaser acquired a perfect title and a hen upon the fund derived from a sale was substituted for a lien upon the land. The rule as established by the Revised Statutes enlarging the power of the court in partition cases so as to displace hens upon the property and transferring the same to the fund, has been preserved by the provisions of the Code of Civil Procedure. But general hens upon the entire property, or general or special hens upon individual shares existing at the time o£ the filing of the notice of the pendency of the suit, cannot be affected by the final judgment, unless the parties having the liens are made defendants, thus securing to the leinors their day in court so they may protect their interests.

I am unable to find any case where it has been, held that a general hen on the whole property paramount to the rights of the tenants in common, can be cut off or affected unless the person having the lien is made a party. It seems certain that the legislature intended that persons setting up adverse liens may be made parties defendant in a partition suit, at the election of the moving party, and their validity subjugated therein. Section 1539. But as doubts have been entez’tained upozz that question by the higher courts, we do not express any opiniozz upon the subject, as it is uzmecessary for us to do so izi disposing of the pending appeal. Barnard v. Onderdonk, 98 N. Y., 158; Jordon v. Van Epps, 85 id., 421. What may be the views of the respondent’s counsel on the question which we have considered we are not advised, as in their prizzted brief they make no reply to the argument of the appellants that the special term had no jurisdiction over the subject matter.

We have not looked into the record for the purpose of determining whether the taxes w'ere valid or ziot, as we have reached the conclusion that if we should concur with the special term that they are void, then the order could not stand, as the court was without jzzrisdiction to detez*mine that question.

The order of the special term as to the parties who have appealed is reversed, with ten dollars costs of this appeal and disbursements.

Smith, Haight and Bradley, JJ., concur.  