
    David Cromwell, County Treasurer, etc., Resp’t, v. Marie M. MacLear, Imp’ld, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    1. Taxes and assessments—Tax titles—Parties.
    Plaintiff, as assignee, brought this action to foreclose a mortgage, made December 9, 1868, upon certain land in Westchester county against the executor of the mortgagor, and also against Marie M. MacLean, who was in possession of the lands under leases, for non-payment of taxes, for 1878, ’79, ’81, ’86 and '87, by sales made the year immediately preceding such leases, for taxes unpaid the year prior to such sales, respectively, and all made under Laws 1874, chap. 610, applicable only to Westchester county. No notice of the mortgage by any holder thereof was ever filed with the town clerk, nor was any notice of the tax sales or leases filed with the county treasurer, as required by Laws 1868, chap. 239, § 7. After plaintiff had made out a, prima facie case for the foreclosure of his mortgage, defendant offered in evidence the leases, and proved that they covered the mortgaged premises, and then rested. Plaintiff then went into proof tending'to show that the assessments were irregular and void, which evidence was taken without objection. The defendant, for the first time, raised the question that her title was paramount to the plaintiff’s mortgage, and could not be passed upon in this action. Held, that the objection was taken too late.
    
      % Same.
    Chapter 610, Laws 1874, relating to sales of land for unpaid taxes in Westchester county, and entitling a mortgagee to notice of tax sale only when he had filed a notice of his lien in the town clerk’s office, etc., was plainly meant to introduce a new system, and to embrace all the law upon that subject as against that which was contained in the prior acts upon the same subject relating to Westchester county.
    3. Same.
    But the assessments and subsequent proceedings, under which defendant holds the leases, were invalid, as assessments of lands belonging to Edward C. Wilson, trustee, a resident of Peekskill, Westchester county, were made to “ Wilson, Edward J., estate,” and it was really an attempt to assess those who were the owners of the property under the form of an assessment against the estate of a deceased person.
    4. Same.
    _ These defects were not cured by chap. 627, Laws 1887, confirming previous tax sales. The legislature has no right to take the property of A. and transfer it to B. under the guise of confirming sales made of such land in invitwm, bat by which no title in fact or in law passed from the owner to the purchaser.
    5. Same.
    Plaintiff as mortgagee could raise the question of the invalidity of the leases.
    6. Same—Waiver.
    The owner of property may waive the illegal character of an assessment, but he cannot by any waiver waive an outstanding mortgage out of existence.
    7. Same.
    Where assessors determine that certain land within their jurisdiction is land of a non-resident, and then proceed to assess it and utterly fail to carry out or obey the commands of the statute as to assessments upon the lands of non-residents, they fail to make a valid assessment and no sale of lands founded thereon can convey a title.
    
      Appeal from judgment of the supreme court, general term, second department, affirming a judgment of foreclosure in favor of plaintiff granted at special term.
    
      Calvin Frost, for app’lt; Wilson Brown, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 103.
    
   Peckham, J.

First. It is claimed on the part of the defendant, Mrs. MacLean, that she was improperly made a party to the action, and that the motion made at the end of the case to dismiss the complaint as to her should have been granted on the ground, as therein stated, that her rights under the tax sales and leases were paramount and adverse to the claim of the plaintiff under his mortgage, and could not, therefore, be adjudicated in a foreclosure action.

Upon the correctness of. this abstract proposition we entertain no doubt, and if the question had been raised in her behalf at the proper time, the complaint should, as to her, have been dismissed, and an exception to the refusal would have been fatal to the plaintiff’s judgment herein.- But we think the defendant, by proceeding as she has, waived her right to raise this question, and it is now too late for her to ask this court to set aside the proceedings as to her upon the ground 'stated. The pleadings show that she has herself sought an adjudication upon this very question in this action.

The-complaint has the usual allegation that defendants have, or claim to have, some interest in, or lien upon, the premises mortgaged, but that such lien- or claim, if any, has accrued subsequently to the lien of the mortgage.

Mrs. MacLean, in her answer, puts in issue the allegation that the mortgage is a first lien as alleged in the complaint. She also sets up the sales under the tax proceedings, and the leases made thereunder, and alleges that she is now the owner thereof and in possession and entitled to the possession of the premises. She also asks that her rights might be adjudged to be paramount and not subordinate to the rights 'of the plaintiff under his mortgage, and that she might be adjudged to be the owner of and entitled to the damages mentioned in the complaint for the taking of a portion of the premises by the city of Few York.

The plaintiff replied, asserting that the leases were void and of no effect, and that any title of defendant under the leases was not paramount, but subordinate to the mortgage. He asked judgment establishing that the plaintiff’s mortgage was paramount to the title of defendant under the leases. Upon these pleadings the parties went to trial, and the plaintiff made out a prima facie case for the foreclosure of his mortgage.

The counsel for the defendant, Mrs. MacLean, then offered in evidence the various leases printed in the case, under which she claimed title, and called witnesses to prove that they covered the mortgaged premises, and then rested.

The plaintiff, in answer to the evidence regarding such leases, went into proof tending to show that the assessments and the proceedings following them were irregular and void. All the evidence on that subject offered on the part of the plaintiff and received by the court, was taken without any objection on this ground on the part of defendant, and no question of this kind appears to have been thus far raised by her. After the plaintiff had again rested, the defendant made her motion to dismiss the complaint as to her, and then for the first time her counsel raised the question that her title was paramount to the plaintiff’s mortgage and could not be passed upon in this action. This objection, under the facts above set forth, we think was taken too late.

It is not a question of jurisdiction in the court over the parties or the subject matter, and hence consent may waive any irregularity existing in pursuing an investigation of, and in adjudicating upon such questions in an action of this nature.

If such consent be given, and not only mere consent, but a positive request be added and incorporated in the pleadings, we think the court then has the right to pass upon the question. It may, of course, and on its motion refuse so to do.

In this case the defendant never claimed either by answer or evidence that she had been improperly made a party defendant, and that her paramount rights could not be litigated in the action. If she had desired to do this, all the evidence necessary for that purpose would have been the leases, showing that she claimed under them and that they had been executed in due form of law. This would have shown the nature of her claim, and if it were valid it would have appeared to be paramount to the mortgage. Whether it was valid or not would have been a question not to be litigated in this action under her objection taken in due time. She pursues the opposite course, and in so doing comes directly within the principle decided in this court in Helck v. Reinheimer, 105 N. Y., 473 ; 8 N. Y. State Rep., 73. A judgment in such case binds all parties to it.

This ground for a reversal of the judgment in this action we hold to be untenable.

Second. Conceding for the purpose of this point that the assessments and sales and leases were otherwise regular and valid, the plaintiff claimed that his lien as mortgagee was not cut off, nor any of his rights under the mortgage divested by reason of such proceedings, because by the provision contained in § 2 of chapter 239 of the Laws of 1868 (an act relating to the sale of lands in Westchester county for the non-payment of taxes), the plaintiff, as mortgagee, was entitled to six months’ notice in writing of the sale of the land under the tax proceedings, and that in the absence of such notice he, as such mortgagee, could not, by the express provisions of such section, be divested of his rights in sxxch property. The plaintiffs’ mortgage had been duly recorded before the sale of the land for any of the taxes, and no notice in writing of such sale had been given him.

The defendant answers this contention by saying that the act referred to was repealed by implication by tlxe passage of the act, chapter 610 of the Laws of 1874, relating to sales of land for unpaid taxes in Westchester county, and that by § 25 of such act a mortgagee was only entitled to notice that a sale had taken place when he had filed a notice of his lien in the town clerk’s office where the land was situated, and that no mortgagee’s rights were saved from such sale unless such notice had been filed in such office. It is conceded that the plaintiff never filed such notice in the town clerk’s office.

If the act of 1868, or the second section thereof, be not repealed, the plaintiff has not been divested of his rights as mortgagee.

A careful perusal of the act of 1868, and also of the various prior acts relating to the proceedings for the collection of unpaid taxes in Westchester county, of which the act of 1868 is an amendment, siiows that it was a perfect system within itself, which those acts provided, for such collection.

A like perusal of the act of 1874 must convince anyone that it constituted a new, independent and perfect system for the same purpose as that which previously existed, and that a totally different process in many and important particulars was therein introduced relative to such proceedings.

The later act dropped out the county treasurer as an important functionary in the process, and substituted the supervisor of the town, and the whole preceding was made in substance one by the town instead of one by the county treasurer. Various provisions abound in each system for the giving of notices and for the conduct of sales of lands, and provisions were made in each in regard to notices to mortgagees. I cannot but come to the conclusion that the act of 1874 was plainly meant to introduce a new system and to embrace all the law upon that subject as against that which was contained in the prior acts upon the same subject relating to Westchester county. The rule in such cases is familiar and has been several times passed upon by this court and nothing more need be added to what has been stated in the cases cited. See In re Petition N. Y. Institution, etc., 121 N. Y., 234; 30 N. Y. State Rep., 921; Anderson v. Anderson, 112 N. Y., 104 ; 20 N. Y. State Rep., 344; Horton v. Cantwell, 108 N. Y., 255; 13 N. Y. State Rep., 615; People v. Jaehne, 103 N. Y., 182-194; 3 N. Y. State Rep., 11; Heckmann v. Pinkney, 81 N. Y., 255.

If the proceedings leading to the tax sales and leases were valid, it follows that the rights of the plaintiff were divested by such sales and leases, because he never complied with the terms of the twenty-fifth section of the act of 1874, by filing notice of his lien with the town cleric, and it is only in such event that his rights are protected, in case the supervisor fails to give notice as provided for in the section.

Third. The question then presents itself, are the assessments and subsequent proceedings under which the defendant holds the leases valid? The defendant claims under five several leases made in the years 1878, 1879, 1881, 1886 and 1887, which leases are based upon assessments made in the years 1876, 1877, 1879, 1884 and 1885.

The assessments in all these years were made under the column headed “name,” in these words: “ Wilson, Edward J., estate.’’ In the roll of 1877, the word “town,” appeared over the words “Wilson, Edward J., estate.” In that of 1879 the same assessment is made as in 1877, excepting that under the columns, “ Quantity of land,” “ Full value of land," the word “ non-resident ” is written above the proper answers to be made for each of such columns. In 1884 and 1885, in the column under the word “name” appears the word “non-resident,” and beneath that, “Wilson, Edward J., estate.” There was also seemingly at the bottom of the roll of 1876 a brief description of the property, commencing in this way : “Town described property.” “E. J. Wilson, estate, farm, seventy acres,” and then followed the boundaries. A reference to the evidence, however, shows that this description is on a different page from that which contained the assessment, the latter being on page 148, and the description on page 201 of the roll. In the roll of 1885 there is added on the right hand margin a brief description of the land.

All these assessments were clearly illegal. The owner of the mortgaged premises down to the time of his death was Edward J. 1 Wilson, and at that time he was a resident of the city of Now York. He died in April, 1876. By virtue of the will of Edward J. Wilson, Edward C. Wilson became the owner of the premises as trustee, and the latter was a resident of the village of Peekskill, in the county of Westchester, and has never been a resident of the town of Grreenburgh in such county.

The court before whom the trial was had found as a fact that the mortgaged premises were never assessed as lands of non-residents, and were never assessed after the death of Edward J. Wilson to either the owner or the occupant.

The appellant’s counsel claims that the assessments for the years 1876 and 1885 were in compliance with the statute as to assessments upon the lands of non-residents. We do not think so, and we believe the finding of the court that the land was not assessed as “ lands of non-residents,” to be based upon sufficient evidence. An inspection of the rolls is enough. The assessment in each of above-named years is made upon a roll with blanks containing columns for (a), the name, (i), quantity of land, (c), full value of land, (d), personal property, (<?), whole amount, real and personal, (/), tax, dollars, cents. The assessment is not in either roll in any manner a compliance with the statute in regard to assessments upon the lands of non-residents.

By statute, 1 R. S., 391, § 11, the lands of non-residents are to be designated upon the same assessment roll, but in a part thereof separate from the other assessments and in the manner prescribed by the two next sections, 12, 13. No attempt is made to comply with the conditions contained in either section. The appellant endeavors to maintain the proposition that this assessment is upon lands of a non-resident, and that the name “ Edward J. Wilson, Estate,” is a compliance with the statute, because this is a tract known as the “Edward J. Wilson, Estate.” But we think it plain it is not a name of a tract of land within the meaning of the statute, even assuming that the premises were a tract subdivided into lots.

It is quite obvious that the designation “ Edward J. Wilson, Estate,” as contained in the rolls was not an attempt to assess a tract of land under and by its designated name. This is evident from the form of the roll, the language used and the utter absence of any attempt to comply with the provisions of the law as to an assessment upon the lands of non-residents. It was really an attempt to assess those who were the owners of the property under the form of an assessment against the estate of a deceased person.

In Trowbridge v. Horan, 78 N. Y., 439, it was held that it was irregular and unauthorized to make an assessment to an estate; that the words “ Estate of A. B.," denote no owner, for it cannot be an owner in any sense and no title could be acquired under a sale for taxes upon such an assessment. An assessment to the estate of a deceased person, in the case of non-resident lands, is not a valid assessment any more than in the case of lands owned by residents of the town. It is an attempt to make an assessment which is without validity.

The case of Haight v. Mayor of N. Y., 99 N. Y., 280, has no similarity. It was decided upon a special statute relating to that city, and the judge delivering the opinion said that the system under it differed from that provided in the Eevised Statutes for the rest of the state, and that under such system it had been repeatedly held that unless land of residents is assessed to the real owner or occupant by his name, the tax is void. Of course, if assessed without any name of the owner and as lands of non-residents, the sections of the Eevised Statutes above cited must be complied with and the land must be assessed either as a tract subdivided into lots, which was not done, or else as a tract not subdivided, or as one where its subdivisions could not he ascertained by the assessors, in either of which cases the assessors must make a certificate that the land is not subdivided or that they could not obtain correct information of the subdivisions. This was not done. There is an entire absence of compliance with the statute in assessing these lands either as the lands of non-residents, or to the owner or occupant. Scarcely one material mandate of the statute is in either case complied with. The learned trial judge has found many other defects in the assessments and many omissions in the description of the lands, both in the assessments and in the leases given to the defendant

The failure, however, to properly assess these lands prevented the transfer of any title or interest therein to the purchaser at the tax sales, and the original owner retained precisely the same title to the lands after the execution of the various leases that he had prior to the attempted assessment made upon such lands in the years above mentioned Trowbridge v. Horan, supra.

This brings us to the next question.

Fourth. Does the second section of the act, chapter 627, of the Laws of 1887, vest the title to the property in question in the owner of these invalid leases, to the same extent in all things as if they had legally conveyed the interest which, on their face, they .purport to ? The section reads as follows: “All sales heretofore had of lands in said county for the non-payment of taxes- under .and by virtue of the act hereby amended, are hereby confirmed, and in all cases where land has been bid in under said act for or on behalf of any town and leases to the town delivered therefor, the title to the lands so sold shall be deemed vested in the town, and the leases therefor shall be assigned and the interest of the town in such lands conveyed in the manner provided by said act as the same is hereby amended.”

■ Holding, as we must, that no title or interest, in fact, passed to the purchaser at these tax sales, and that the original owner, therefore, still retained his title, the effect of1 the act in question, if valid, is by legislative fiat to transfer the title of the property from Edward 0. Wilson, as trustee, to the lessees under these invalid leases for a hundred or a thousand years, as the case may be. Has the legislature of this state the right to take the property of A. and transfer it to B. under the guise of confirming sales made of such land in invitum, but by which no title in fact or in law passed from the owner to the purchaser ? The statement of the question should be its best answer. Property thus taken is not taken by due process of law.

This is not a case within the principle that persons who take conveyances of land by deed or under legal proceedings which lack validity by reason of some omission or informality, take a title or right subject to the power of the legislature to cure such errors or defects by acts of retrospective legislation. Where the proceeding is wholly in invitum and the defect of such a nature that no title has passed, the legislature cannot validate or legalize the proceeding to the extent of itself conveying the title under the form of confirming a sale under which no title passed. See remarks of Bigelow, Oh. J., in Denny v. Mattoon, 2 Allen, Mass., 361, at 382-383.

Hor is the legislation in question an exercise of the power to provide rules of evidence, and thus to give a certain effect to a deed or lease as presumptive evidence of the validity of proceedings before its execution. People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158. Hor does it attempt to set up a statute of limitation providing that after the expiration of a certain time it should be conclusively presumed that all proceedings were regular. People v. Turner, supra ; Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39. Ib is none of these, but a plain, naked transfer of title by legislation. Any statute which should make a tax deed or lease immediately upon its execution conclusive evidence of a complete and perfect title, and thus preclude the owner of the original title from showing its invalidity, would probably be void, because it would, in substance, be an unconstitutional transfer or a confiscation of property, instead of a mere law regulating evidence. I do not refer to cases arising under statutes of limitation, where the owner has some appointed time in which to assert his rights, nor to cases resting on principles of equitable estoppel. Cooley on Taxation (2d ed.), 297, et seg.

The defendant claims that the act is valid as an exercise of the power to cure defects in assessments and other proceedings for the imposition and collection of taxes. Such curative power is a branch and. a part of the legislative power to tax and must be sustained under it. The legislature, undoubtedly, has large powers in the way of curing certain defects in proceedings to tax the citizen. In cases where the proceedings have been such that the citizen has had his chance to be heard before the tax Was finally imposed, but nevertheless defects have been discovered in such proceedings, if the thing omitted and which constitutes the defect be of such a nature that the legislature might, by prior statute, have dispensed with, or if something had been done, or done in a particular way, which the legislature might have made immaterial, the omission or irregular act may be cured by a subsequent statute. This was so stated, and in substantially identical language, in Ensign v. Barse, 107 N.Y., 329 ; 12 N.Y. State Rep., 39.

Such act might take away from the taxpayer a defense to the further proceedings against him to collect the tax, which he otherwise would have had. Tifft v. City of Buffalo, 82 N. Y., 204. Yet even in this case I think the taxpayer must be given reasonable time in which to pay a tax thus validated or thus imposed by the legislature. But where the proceedings are so contrary to the provisions of the statute as to result in no valid assessment whatever, and where the sales made under such invalid assessment convey no title or interest in the premises to the purchaser, and the original owner has the same title or interest in his property that he ever had, there is no principle upon which to base the power of the legislature under our constitution by any legislative act to transfer to the purchaser the title to the property of the original owner, which such purchaser would have had if all the proceedings up to and including the sales had been valid. No case can I think be found in this state which countenances such doctrine. From the People v. Turner, 117 N.Y., 227; 27 N. Y. State Rep., 158; and Ensign v. Barse, 107 N. Y., 329 ; 12 N. Y. State Rep., 39, back through our reports, I have not been able to find a case which points to the existence of a power on the part of the legislature to convey the title of a man’s property from him to another by a mere exercise of the legislative will.

To hold the act under discussion to be valid is to decide that the legislature has such a power.

What difference does it make to say that the legislature is acting only in the way. of validating proceedings to collect a tax which in justice the owner of the land ought to pay ? The answer is that the proceedings have been so fatally defective that no title has passed and the owner has his title to his property the the same as if no tax proceedings had been taken. Where is the authority in such case for the legislature to itself transfer the title to his property to some one else ? If it be proper that he should pay the tax, the legislature might itself tax him, giving him opportunity to be heard in some way before he must pay, as to the amount for which he was liable, Spencer v. Merchant, 100 N. Y., 585; Same v. Same, 125 U. S., 345, or it could provide for further proceedings in order that a legal tax might be levied, but by no form of words could it legally transfer the title of the owner to his property to some third person. If the proceedings of the taxing power have been so fatally defective on account of a failure to comply with, the requirements of the statute that no title to the property of the taxpayer has passed to tire purchaser at the tax sale, I do not think there is any correct principle upon' which can be based the claim that the taxpayer nevertheless holds his property from that time on at the mercy of the legislature and subject to its power at any time, so far as he is concerned, to validate and give life and effect to the otherwise void sale. A void sale the taxpayer has the legal right to regard as no sale, and he has the further right to assume that no proceedings of a legislative character could be taken to transfer his property for the non-pajunent of a void tax, without the legislature first legalized the tax where that could be done, or itself imposed the tax, and then in either event gave him an opportunity to pay it before proceeding to sell his land.

In the case of Lennon v. Mayor of N. Y., 55 N. Y., 361, Rapallo, J., in speaking of the act, chapter 580, of the Laws of 1872, § 7, said that it did “ not purport to give validity to sales made prior to its passage, under void assessments, nor could it have that effect. Though it should be held to validate the assessments, it could only render them operative from the time of its passage, for it must be upheld if at all, as an exercise of the power of taxation, whereby the legislature adopted the apportionment and assessment previously made, and imposed the tax directly upon the property affected in accordance with such previous assessment. It is manifest that until after the passage of the act there was no valid tax and no authority to sell the property or any interest therein.”

I think it safe to say that sales made without authority and by which no title passed could not be so far validated as to transfer a title by legislative fiat. If the legislature have designated a certain way in which to make an assessment, although it could easily have designated some other just as legal, yet the manner designated must in substance be carried out, although many of the provisions might have been omitted by the legislature and a constitutional assessment still levied.

If any of those provisions of a material nature have been omitted, so that no valid assessment has been made and no title transferred to the person assuming to purchase at the subsequent tax sale, I am fully persuaded there is no power in the legislature to pass any act,, the effect of which shall be to thereby transfer the title of the original owner to the purchaser, to the same extent as if the whole proceedings from' assessment to sale had been valid.

This cannot be done under the guise of confirming sales of lands theretofore made for the non-payment of taxes. If such proceedings have been-so far futile as to leave the title to his property in the original owner notwithstanding the attempt to transfer it by the statutory proceedings, no legislative act can take such title from him and transfer it to another. This answers the question asked by defendant’s counsel, in referring to the case of Shattuck v. Bascom, 105 N. Y., 39 ; 6 N. Y. State Rep., 775, whether the legislature, having power to dispense with the assessor’s oath in the first instance, could not have validated a sale made upon an assessment in which the oath actually taken was. só defective as to amount to a fatal variance from the statute.

The variance was such as to render the assessment void, Shattuck v. Bascom, supra; Brevoort v. City of Brooklyn, 89 N. Y., 128, and hence no title passed under the tax sale. In such case there can be no doubt that the legislative power stops far short of transferring the title by the simple process of attempting to confirm this void sale. The validating act passed to cure the defects set out in the Brevoort case, supra, assumed to validate the taxes in the manner therein pointed out, and did not even on its face extend to the validating of a title procured by a sale for the non-payment of the taxes based upon the void assessment. The tax was validated, but a time was therein given to the taxpayer to pay the same, and the act was in effect the laying of a tax with opportunity for the taxpayer to pay it before any proceedings could be taken to deprive him of the title to his property. In re Clementi v. Jackson, 92 N. Y., 591. After the passage of the act referred to, no taxpayer could further resist the payment of his tax on the ground of past irregularities. The steps thereafter taken to continue or to inaugurate proceedings to collect the tax could not be assailed on account of the irregularities existing a,t the time of its passage.

This is all that is meant by Judge Earl in his opinion in Terrel v. Wheeler (decided in October of this year and not yet reported). There is not a suggestion in that opinion looking to the point that the legislature could validate a void sale so as to thereby transfer a title.

The case of Williams v. Supervisors of Albany, 122 U. S., 154, is not in the slightest degree opposed to these views. It will be seen that the act which validated the assessment and which is cited at length in the report, chap. 345 of the Laws of 1883, provided for a notice to those originally assessed and an opportunity to be heard before the assessors for the purpose of reducing their assessment and to enable the authorities to return to them any amount taken from them in excess of the legal sum. There was no thought of interfering with any title to property, nor of transferring it from one person to another by virtue of legislative decree. It was the validating of a tax simply. It was in no manner an interference with titles. We are of the opinion that the act under consideration ie unconstitutional in so far as it seeks to validate a wholly void sale of the owner’s real property or an interest therein under a void assessment.

Fifth. But the defendant’s counsel claims that the plaintiff, as a mortgagee simply, has no standing in court to take advantage of this point.

I cannot see why. Prior to the passage of the act in question, he had a good and specific lien on this estate as a security for the payment of a debt due him. This lien was property, and property which could not „ be taken from him without due process of law. Taking the land upon which it rested, by the power of taxation, and under valid proceedings to collect a valid tax against the owner, would be due process of law. But to legislate the title from the owner into the hands of a purchaser at a void sale upon a void assessment for general taxation, and to thus deprive the mortgagee of his lien, is no exercise of the taxing power, and it cannot be done.

It is said that the owner of property subject to taxation may waive any legislative or even constitutional privilege in his favor, and that if he choose to avail himself of such privilege and waive the illegal character of the assessment, no one could prevent it. This is true. But by what method is he to waive his rights ? lie can so far waive them as to pay the tax assessed upon his property, although it be based upon an invalid assessment. He can waive the illegal sale and ratify it, so far as he is concerned. But he cannot by any waiver waive an outstanding mortgage out of existence. He may waive his own rights, in other words, but not those of third parties. Although a mortgagee takes his mortgage subject to the right of the landowner to consent or submit to an illegal assessment, that consent or submission cannot go to the extent of ratifying a void sale of his land under proceedings to collect an invalid tax, where such ratification is to have the effect of transferring his title to a third person freed from the lien of the mortgage. But there is in this case no fact of consent or submission on the part of the landowner. It only appears that his land was illegally assessed and illegally sold, and where his consent or submission to such illegal action is to be found, I do not know. "We think the mortgagee in this case had a right to raise the question of the invalidity of the leases.

What has been said in regard to the character of the omission to assess this property according to the statute meets the objection made by the defendant that the defect is not of that species which permits any one to raise it in a collateral way. The assessors in making an assessment of lands within their jurisdiction act in a certain sense and to a certain extent judicially. If they decide that the land is the land of a non-resident and so assess it, probably their action, when erroneous, does not subject them to individual liability for such error. This was stated in Railroad Co. v. Supervisors of Erie, 48 N. Y., 93, 105. But where assessors determine that certain land within their jurisdiction is land of a non-resident, and then proceed to assess it and utterly fail to carry out or obey the commands of the statute as to assessments upon the lands of non-residents, they fail to make a valid assessment, and no sale of lands founded thereon can convey a title.

We have looked at all the other questions raised by the learned counsel for the defendant and fail to find any reason for disturbing the judgment below. We have not been-unmindful of the importance of the questions depending upon our decision and it has induced a very careful consideration thereof. How many titles depend upon this legislative act we of course do not know, but we are unable to see in it anything other than an attempt by mere legislative power to take the property of A. from him and give it to B.

The due process of law provided for in our constitution will not permit this to be done.

The judgment of the court below must be affirmed, with costs.

All concur. 
      
       Except in 33 N. Y. State Rep., 404.—Ed.
     