
    PEOPLE ex rel. MARY N. TOWNSHEND, Relator, Respondent, v. ARTEMUS CADY, Clerk of Arrears, Respondent, Appellant.
    
      Decided June 16, 1884.
    
      Taxes—lien of on property—mandamus to compel receipt of—statute of limitations.
    
    In a proceeding by way of mandamus to compel the clerk of arrears to receive certain taxes alleged by relator to be a lien on her premises, it was shown that the taxes were imposed in the years 1861, 1863, 1866, 1867, and 1868, and there was no proof of non-payment or of their present existence. The relator pleaded the ten years statute of limitations.
    
      Held, that a mandamus will lie to compel the tax officer to receive the tax. That it being admitted the taxes in question once existed, in the absence of proof to the contrary, it will be presumed that they continue to exist; and further, that the statute of limitatidns does not discharge the debt, nor bar the right of the debtor to pay it, but affects only the remedy of the creditor.
    That these taxes are a lien on the property tiJLl paid (Laws 1871, ch. 381, § 1), therefore that the right to remove the lien continues concurrently, notwithstanding the statute of limitations.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from an order and judgment awarding the relator a peremptory mandamus, commanding the appellant., Cady, as clerk of arrears, to accept certain arrears of taxes for the years 1861, 1862, 1866, 1867 and 1868.
    
      The relator moved for an alternative mandamus and alleged the ownership of the property, the assessment of taxes in the years mentioned above ; she also alleged that said taxes remain unpaid ; that they were a lien on her land; that she had tendered the respondent the amount of such taxes and the accrued interest, and that he had refused to accept the same. The respondent denied that said taxes remain unpaid, and admitted the other allegations. He also pleaded, as an affirmative defense, that the relator’s right to apply for the relief now sought was complete more than ten years béfore the commencement of this proceeding and that ten years had elapsed before the tender of the taxes was made.
    The issues thus raised were tried by Mr. Justice Ingraham and a jury, and by direction of the court a verdict was found for the relator. Upon this verdict the relator moved for judgment, and judgment was ordered awarding writ.
    Upon the trial the only evidence adduced was proof of a conveyance of the premises to the relator and her possession thereunder. The appellant then moved to dismiss the writ, among other grounds, because, so far as it related to the faxes of 1861 and 1862, more than twenty years had elapsed since they were imposed and that the presumption of law was they were paid, and also, because there is no proof the taxes were unpaid. The appellant also moved for a verdict in his favor on the ground stated in his answer that ten years had elapsed since the right to pay the taxes accrued. The appellant’s motions were denied, to which, and also to the court’s ordering a verdict for the relator, he excepted.
    
      George P. Andrews, counsel to the corporation, and John J. Townsend, for appellant.
    It was incumbent upon the relator before being entitled to relief, to prove affirmatively the unpaid condition of the taxes, and to show that they constituted a lien at the time the present proceeding was begun. For aught that appeared, the lien of the taxes may have disappeared either by the payment of the taxes or by the sale of the lots for the non-payment of the taxes under the scheme contemplated by the statutes of this state —a scheme which everyone is presumed by law to know (Laws 1843, chap. 230, art. 3).
    The motion as to the taxes of 1861 and 1862, on the ground that the lapse of 20 years since the imposition of these taxes created a presumption in law of their payment, should in any event be granted (Fisher v. Mayor, 67 N. Y. 78, 80). Section 1, chap. 381, Laws 1871, does not interfere with or rebut the presumption referred to. No doubt, taxes, etc-., by the act are made liens until paid ; but the rules of evidence applicable in determining whether or not any particular tax is as a matter of fact paid or unpaid are not in any way affected by the act.
    That mandamus is a £‘ special proceeding ” and that the provisions of the Code in regard to the limitation of actions apply thereto, has been expressly held (People ex rel. Sheridan v. French, 31 Hun. 617). The particular limitation here invoked is that prescribed in section 388 of the Code—covering all cases not especially provided for. As to • each tax in question, the right of the relator or her predecessor in title to make the demand or tender on which the proceeding is based was completed in June of the year following the imposition of the tax. The clerk of arrears then takes charge (chapter 579, L. 1853, §§ 11, 16.) The tender and demand as to her most recent tax—1858—could then have been made in June, 1869. The actual tender and demand as to all her taxes was December 19, 1883. Thus the statute had then run as to all. That when a demand is necessary prior to the institution of a suit, the statute begins to run when the right to make the demand is complete, see § 410 of the Code.
    
      John Townshend, for respondent.
    The assessment of the taxes being conceded, it follows they were liens on the property for which it was liable to be sold. Prior to Laws of 1871, chap. 381, there was no specific enactment fixing the duration of this lien, but it was by analogy held that the lien continued for twenty years (Mayor v. Colgate, 12 N. Y. 140).
    By Laws 1871, chap. 381, § 1, these taxes imposed are made liens until paid. There is no presumption of payment.
    As to the objection that there was no proof of the taxes being unpaid, %. e., no proof of payment, a debt or obligation once shown to exist is presumed to continue.
    The court at trial term had power only to try the issues framed by the alternative writ and the return. It could not dismiss the writ (Code Civ. Pro. § 2083).
    Supposing that after ten years the debt cannot be enforced, still that does not show that the right to pay and discharge the lien is taken away. The statute of limitations is to protect against the enforcement of a debt and not otherwise (Morey v. Farmers’ Loan Co., 14 N. Y. 308 ; Lawrence v. Ball, Id. 477; Brady v. Begun, 36 Barb. 538).
    The motion for leave to pay these taxes is in the ^nature of an action to remove a cloud from the title. The causé of action continues as long as the cloud continues (Miner v. Beekman, 50 N. Y. 337-343).
    This court had jurisdiction to issue the mandamus People v. Green, 58 N. Y. 295). A mandamus is the proper remedy against a municipal officer who refuses to receive payment of a tax (Re Clementi, 92 Id. 591).
   By the Court.—Truax, j.

It is admitted that these taxes once existed, and in the'absence of proof to the contrary, it must be presumed that they continue to exist. The statute of limitations does not discharge the debt; it simply bars the remedy on the debt (Waltermire v. Westover, 14 N. Y. 20). In effect it does not dispense with the performance of the contract. It is for this reason, that such statutes have been held not to impair the obligation of the contract (Sturges v. Crowninshield, 4 Wheat. 207). The statute says that the actions therein specified must be commenced within the times mentioned in the statute (Code Civ. Pro. § 380). It raises a bar to the action, which bar the obligor may use if he see fit. It is personal to him as a defense.

It has been determined by the court of appeals that a mandamus will lie to compel the tax officer to receive the tax. It is true that such determination was reached in a case in which six years had not elapsed since the imposition of the tax, and in which a statute of limitations was not pleaded (Matter of Clementi v. Jackson, 92 N. Y. 591-5). But it is a right inherent in the owner of the fee to have a lien on his property removed, and these taxes are a lien on this property until paid (Laws 1871, chap. 381, § 1). This right continues while the lien continues, and therefore an action or proceeding to enforce this continuing right is not barred by the statute of limitations (Miner v. Beekman, 50 N. Y. 343).

The judgment and order are affirmed, with costs.

Sedgwick, Ch. J., concurred.  