
    MARY N. TOWNSHEND, Respondent, v. ELIHU WILLIAMS, Appellant.
    
      Decided June 16, 1884.
    
      Tax sales—defects in—presumption as to validity of lease.— Cloud on title.— Laws 1871, chap. 381.
    A lease of land executed by the city of New York upon a statutory sale of the premises for unpaid taxes, is void when founded on an advertisement giving notice of the sale of different premises described in a certain list, upon divers days named in said advertisement, and requiring redemption to be made on divers other days therein named, without designating which lots are to be redeemed each day.
    But a lease so given has sufficient presumptive validity to constitute a cloud upon title, and it may in a proper case be removed as such.
    Such a lease is still a cloud upon title though the comptroller has not after delivery of the lease duly executed the certificate necessary to cut off the right to redeem under the statute (Laws 1871, chap. 881, § 16). The lease is still valid, excepting there remains a right of redemption, which together with the invalid lease, the owner is entitled to have removed.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from judgment for the plaintiff entered upon the findings of a judge at special term.
    Action to have a certain lease given by the city of New York upon sale of premises for taxes, declared to be a cloud upon-plaintiff’s title and removed, upon the ground that though such lease was valid on its face and under Laws 1871, chap. 381, § 4, was presumptive evidence of the regularity of the proceeding under which it was given, yet that it was in fact void, proper notice of sale and redemption not having been given prior to the execution thereof. The advertisement of notice to redeem gave notice of sales of different premises described in a certain list on the 15th, 16th, 18th, 21st, 22d, 23d days of December, 1871, and required redemption to be made on 14th, 15th, 16th, 18th, 21st, 22d and 23d days of December, 1873, without designating which lots were to be redeemed each day.
    
      Anderson Price, for appellant.
    The a valid legal objection appears upon the face of the proceedings, through which alone the adverse party can claim, there is notin law sucha cloud upon his title as will authorize a court of equity to set aside proceedings (Van Doren v. Mayor, 9 Paige, 388 ; Hatch v. City of Buffalo, 38 N. Y. 276). It is a general rule that the owner of real estate must waif until his title is assailed. It is not sufficient that there is a formal title. Where the lien is invalid on its face, or its invalidity will necessarily appear in any proceedings taken to enforce it, the jurisdiction of equity cannot be invoked to set it aside (Townsend v. Mayor, 77 N. Y. 544 ; Guest v. City of Brooklyn, 79 Id. 624 ; Stuart v. Palmer, 74 Id. 185 ; Wells v. City of Buffalo, 80 Id. 253; Dederer v. Voorhees, 81 Id. 153).
    The defective redemption notice, would necessarily appear in proceedings by defendant to enforce claim, and it cannot be claimed that, the language of the statute, § 4, chap. 381, Laws 1871, has the power to make a wrongfully executed paper a valid instrument. The lease is not evidence of the power to sell; it is evidence only of the regularity of the act of selling (Doughty v. Hope, 1 Com. 79 ; Striker v. Kelly, 2 Den. 323). There are no presumptions of regularity when an officer conveys property of an individual. “Conclusive evidence” means only evidence as to sale itself, not as to prior or subsequent proceedings (Bunner v. Eastman, 50 Barb. 639 ; Hickox v. Tallman, 38 Id. 608).
    
      To divest the owner of lands by a sale for taxes, every preliminary step must be shown to be in conformity with the statute. It is a naked power, not coupled with an interest, and every prerequisite to an exercise of that power must precede it (Doughty v. Hope, 3 Den. 594 ; Brown v. Goodwin, supra). A provision in a section of a law cannot declare a paper, which can only be issued after complying with all the requirements of preceding sections, and can only be lawfully issued after such strict compliance, presumptive evidence of the due performance of the requirements of those preceding sections (Brown v. Goodwin, Abb. N. C. 458); so as to'prevent defects from appearing in proceedings to enforce (Donohue v. O’Connor, 45 Super. Ct. 297).
    The defects in the lease, on its face and in proceedings relating thereto, must necessarily appear, or be made to appear, in any proceedings to enforce same, and the court erred in denying the motions to dismiss the complaint.
    The lease was delivered before the notices had been served, which made it absolute, and the certificate of comptroller, which alone makes lease absolute, is not under seal, as required by § 13 of chapter 381 of 1871.
    
      John Townshend, for respondent.
    The lease was prima facie a valid lease, and presumptive evidence of the sale and all prior proceedings (Laws 1871, chap. 381, § 4).
    Although the lease was prima facie good, it was nevertheless invalid. This court has held that a notice like that upon which the lease was founded is defective, and that a lease founded upon it is. void (Donohue v. O’Connor, 45 Super. Ct. 297).
    The lease being evidence of the tax on plaintiff’s property, that the tax was unpaid, and that the property had been legally sold for a term of 1,000 years to pay said tax, the falsity of which could be made to appear by extrinsic proof only, the lease being in fact void, was a cloud on the plaintiff’s title such as a court of equity will remove. When the instrument is made presumptive evidence that the preliminary proceedings were had, the action to remove the cloud lies if the instrument is in fact void for a defect in the proceedings (Scott v. Onderdonk, 14 N. Y. 9 ; see also Crooks v. Andrews, 40 Id. 547 ; Newell v. Wheeler, 48 ld. 487 ; Story Eq. Jur. § 700).
    The fact of the lease being presumptive evidence of the regularity of the sale is sufficient to constitute a cloud, and plaintiff is not bound to go so far as to show that defendant could, if not opposed, recover possession by means of his alleged cloud; still, plain! iff submits that in an action to enforce the lease, the production of the lease without the certificate of the comptroller in regard to publication of notices after receipt of lease (§ 16), would entitle the plaintiff to recover.
    The provisions of Laws 1855, ch. 427, touching this point are identical with those in law of 1871, chap. 381. Under these provisions it was held : “The purchaser acquired by the comptroller’s deed the fee simple in the land subject to the lien of the mortgage (Beecher v. Howard, 4 Hun, 361; affirmed 66 N. Y. 7 ; See also Pell v. Ulmar, 18 N. Y. 139 ; Johnson v. Elwood, 55 Id. 435 ; Finlay v. Cook, 54 Barb. 30; Phyfe v. Masterson, 45 Super. Ct. 138; Colman v. Shattuck, 62 N. Y. 358 ; Curtis v. Follett, 15 Barb. 343; Hatch v. City of Buffalo, 38 N. Y. 276).
    But in this case it appears that the notices subsequent to the giving the lease have in fact been given, and the comptroller has been satisfied of that fact and has given his certificate to that effect, and the sole alleged defect as regards this is that, although he declares the certificate is under his “hand and seal,” no seal is found on the instrument. The presumption is the seal was affixed and has been displaced, but if it was never affixed the holder of the lease could have it affixed at any time and so complete the lease (Granden v. Herdandez, 17 Week. Dig. 88).
   By the Court.—Sedgwick, Ch. J.

The complaint asked that a lease given by the city, upon a sale of premises lor taxes, be declared to be a cloud upon the title of the plaintiff to the premises, and be removed, and judgment accordingly was allowed.

The principal objection argued upon this appeal'is, that the lease and the proceedings to it are invalid upon their face, and therefore the lease is not a cloud upon the title. I am of opinion that the lease has such apparent and presumptive validity that the plaintiff is entitled to its removal, but in fact the pleadings raise no such question and place the sole defense of the defendant upon the validity of the lease. The answer admits that the mayor, &c., by virtue of the power in them vested by statute, duly executed a lease purporting to be a lease of the premises mentioned in the complaint, to one Goodrich, for value, and that the defendant is the holder and owner of the same for value, and that the premises were sold at public auction for the non-payment of certain taxes duly levied or assessed upon said premises, “ and said purchase and said holding are in good faith and for value.” The answer calls these averments admissions, but they constitute the defense, and the defendant cannot make a contrary defense that the lease was apparently invalid.

The other objection relates to matters subsequent to the execution of the lease. It is taken under the provisions of section 16 of chapter 381, Laws of 1871. That section declares that if the comptroller be satisfied by a prescribed kind of affidavit, that notice for redemption had been duly served, and the money for redemption shall not have been paid, ‘1 he shall under his hand and seal certify to the fact, and the conveyance shall thereupon become absolute, and the owner and all others interested in the lands and tenements, shall be barred of all right thereto during the term ” of the lease. In the present case, the comptroller signed the certificate but he did not seal it, and the judge below, so found. It is argued that therefore the lease was not a cloud because it was not absolute. The section does not avoid the lease, but it is valid excepting there remains a right of redemption. The statement shows that apparently there is a valid lease, but that the owner of the fee, that is the plaintiff, has a right to redeem. She has a right to have removed the appearance of this right to redeem, as well as the lease, for that is derogatory to her title. The immediate right, is, to have removed this apparently valid, but really invalid lease.

Judgment affirmed, with costs.

Ingraham, J., concurred.  