
    Emil M. Hicinbothem, Respondent, v. Village of North Pelham, Appellant.
    Second Department,
    May 26, 1911.
    Action to set aside tax sale — when, not action to determine title to real property — failure to allege possession or that lands are unoccupied — when certificate of tax sale not cloud on title — certificate of sale under Village Law not presumptive evidence that tax is valid.
    An action to have taxes assessed ón real property adjudged to be void and to cancel certificates issued on a sale for unpaid-taxes cannot be regarded as an action to determine a claim to real property, where the complaint does not show that, at the commencement of the action and for the preceding year, the lands had been in the possession of the plaintiff or his predecessors in title, as required by section 1639 of the Code of Civil Procedure.
    
      Possession by the plaintiff cannot be based upon the theory that possession follows the legal title where lands are unoccupied, if the complaint fails to allege that they are unoccupied, and where the time the plaintiff acquired legal title is not stated.
    A suit to cancel a certificate of tax sale as a cloud upon title and for a decree declaring the proceedings upon which the certificate is based and the assessment void does not lie where the invalidity appears upon the face of the record, or appears by any proof which the plaintiff must give in order to maintain the action. This, because a title obviously void is not a cloud upon the title of the true owner.
    Thus, such action does not lie where the tax was eoncededly invalid because the assessment roll and notice of sale did not describe the premises with reasonable certainty. This is true although the certificate complies with the requirements of section 121 of the Village Law, and differs from the assessment roll and notice of sale in that it correctly describes the property, for the Village Law does not make the certificate presumptive evidence of the validity of the proceeding upon which it is based, and the right obtained thereunder must be enforced by summary proceedings, so that in such proceeding the defendant would be required to prove facts, showing a right to possession, and the plaintiff, alleging the invalidity of the tax and sale, would have to resort to the assessment roll and notice,of sale under which the certificate issued.
    Moreover, the defendant would be required to establish that the premises described in its certificate were identical with those upon which the taxes were levied, and of which the defective notice of sale was given, and such proof could only be made by the invalid assessment rolls and notice of sale.
    Appeal by the defendant, the Village of North Pelham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Westchester on the 29th day of November, 19Í0, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      Harry A. Anderson, for the appellant.
    
      Frederick G. Fischer [Henry L. Rupert with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action brought to have certain taxes assessed upon real property now owned by the plaintiff, in the years 1896 to 1907, adjudged void, and to set aside and cancel the certificate issued upon the sale of the property for such unpaid taxes. The action cannot "be regarded as one for the determination of a claim to real property under the provisions of article 5 of title 1 of chapter 14 of the Code of Civil Procedure, for the reason that the complaint in an action of that character must set forth the fact that the property at the commencement of the action ■was and for one year next, preceding had been in the possession of the plaintiff, which is absent in the case at bar. The contention that the presumption of law obtains' that possession follows the legal title where the land is unoccupied and the allegations of the complaint sufficiently comply with the requirements of section 1639 of the Code, is answered by the fact that the complaint contains no allegation that the land is unoccupied, and the time when the plaintiff , acquired the legal title thereto is not alleged. The relief sought in this action is the cancellation of the certificate of sale as a cloud upon the title, and a decree declaring the proceedings upon which the certificate is based, including the taxes assessed, to be invalid.

It is a familiar rule that such an action will not lie when the. alleged invalidity appears upon the face of /the record, or in any proof which the claimant is required to produce in order to maintain an action to establish his title, for the reason that a title obviously void does not. constitute a- cloud upon the title of the true owner. The taxes assessed in the case at bar are concededly invalid because' the various assessment rolls and notices of sale do not describe with reasonable certainty the premises upon which the taxes are levied. The invalidity of the assessments appears upon the face of the assessment rolls, and if it is necessary for the defendant, in order to establish the rights claimed under its certificate of sale, to have recourse to the assessment rolls or to the notice of sale, this action cannot be maintained.. The certificate complies with the requirements of section 121 of the Village Law (Gen. Laws, chap. 21; Laws of 1897, chap. 414). It differs from the assessment rolls and notice of sale in that it correctly describes the plaintiff’s land, and it is contended that, as the invalidity of the certificate does not appear upon its face, it is an apparent lien and cloud on "the title, and this action is maintainable. This contention .would have to be sustained if the defendant established, a prima facie case by the introduction of the certificate. The courts have uniformly held that where the statute provides that the certificate shall be prima facie or presumptive evidence of the facts therein recited, or that the • proceedings recited as having been taken are regular and valid, and the defects in the assessment rolls or notices dehors the record, the certificate, not appearing on its face to be invalid, constitutes a cloud on title, and an action in equity to remove such cloud by the cancellation of the certificate can be maintained.' In this case, however, the defendant does not establish a prima facie case by introducing the certificate. The Village Law does not provide that the certificate shall be even presumptive evidence of the regularity or validity of the proceedings upon which it issued. The right obtained is possession of the premises against which the tax was levied for the number of years as stated, and is to be enforced by summary proceedings. (Village Law, §§ 122, 123.) Section 2235 of the. Code of Civil Procedure provides that the petition in summary proceedings must state the facts which authorize the applica- • tion, and section 2244 provides that the answer may deny the allegations of the petition, and set up any new matter constituting a legal or equitable defense. ■ In summary proceedings instituted by the defendant under its certificate it would be necessary for it to allege the facts showing its right to possession. The plaintiff' could answer by alleging the invalidity of the taxes and sale because the property was not properly described in the assessment rolls or notice of sale under which the certificate issued. It would be incumbent upon the defendant to establish that the premises described in its certificate were the identical premises upon which the taxes were levied,. and of which notice of sale was given. Such proof could only be made by the assessment rolls.and notice, which show the invalidity of the assessments, and this presents a fatal objection to this action. , ■■

The judgment must be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  