Mayor, &c., &c., of the City of New York v. Colgate.

at the expiration of two years he would be entitled to a lease of the premises. The lease was never given, because the plaintiffs, after the sale at auction, did not take the further necessary legal steps to make such sale effectual, so that a good title could be given by them to the purchaser. And on demand made by the purchaser the plaintiffs returned to him his purchase money. There is no pretence on the part of the defendant that he has ever been in any way disturbed in his possession of the premises. He has manifested no desire to relieve his property from the lien by payment, or offer to pay the amount expended by the plaintiffs for his benefit. Suppose, in case of a sale of mortgaged premises by advertisement, they should be struck down to a stranger, who should pay the amount and take a receipt therefor, with a stipulation that the deed of the property should be given to him at a future day, and then for any reason occurring thereafter it should be agreed between the mortgagee and the purchaser that the sale should be abandoned, could it be said that thereby the mortgagee would lose his lien? It might be that if there should be a loss on a resale, the owner of the equity of redemption might recover damages, though that is doubtful. The case is widely different where there is payment, or tender of payment by the mortgagee, where the effect is to draw from the mortgagee and revest in the mortgagor all the right and interest held by the mortgagee. In the case of a sale by the mortgagee under his power of sale, to a stranger, the effect is to transfer all the title and interest of both mortgagor and mortgagee to such stranger, and the lien is necessarily discharged by the operation. But in case of payment, or tender, the estate of the mortgagor becomes again complete and perfect, because he has done all that is required of him, and it is inequitable, after he has paid the debt, or is ready to pay, and has been tendered the amount, that the creditor should still retain a lien. But when the debtor stands by, and sees the creditor bargain with a stranger, and neither pays nor offers to pay, and the effect of such a bargain, when completed, would be to carry away the debtor's title, it can hardly be said that if for any reason such bargain falls through, whereby the debtor is not divested of his estate, or even of its temporary possession, that he can then set up such bargain in

Mayor, &c., &c., of the City of New York v. Colgate.

bar of the creditor's lien. Viewing this lien as in the nature of a mortgage, I cannot think it was discharged by the sale mentioned in the case.

The proceedings for opening, altering, and widening streets, S$ 177, 178, act of 1813, are taken in the Supreme Court, and become matter of record, and the lien created thereby being in the nature of a mortgage, I cannot see how the statute of limitation can be a bar; at all events, I think the presumption of payment cannot arise until the lapse of the twenty years, as in case of a judgment.

I am of opinion that there should be judgment for the plaintiffs for the amount of the original assessment, with interest and costs.

BOSWORTH, J.-The terms of § 223, of the "Act to reduce several Laws, relating particularly to the City of New York, into ONE ACT," passed April 9, 1813, are sufficiently comprehensive to embrace the assessment in question:

Whether this section is applicable to this particular assessment, depends upon the question whether it relates to sums assessed in the "Opening and Laying out Streets, &c.” (id. § 177, p. 408), or relates solely to sums assessed in laying out and regulating "Wharves, Piers and Slips :" id. § 219, p. 431. The section is found under that part of the general act which contains provisions specially relating to the latter subject.

The section declares that every sum theretofore assessed by virtue of the act entitled, "An Act for REGULATING the buildings, STREETS, wharves, and slips, in the City of New York," passed April 16, 1787, or by virtue of an act with the same title, passed April 3, 1801, and not refunded, or that should "thereafter be assessed by virtue of this act, shall be a lien or charge upon the houses and lots in respect to which such assessments shall have been made, and shall bear lawful interest until paid, and shall be entitled to a preference before all other incumbrances on the same, and may be sued for and recovered in like manner, as if the said houses and lots were mortgaged to the Mayor, Aldermen and Commonalty for the payment thereof: Provided always, that nothing herein contained shall extend to charge any such houses or lots, which

Mayor, &c., &c., of the City of New York v. Colgate.

may have been bonâ fide sold and disposed of after the making of such assessment therein and before the 3d of April, 1798.”

By reference to the two acts recited in the preceding part of this section it will be seen that sums assessed by virtue of those acts "for regulating and altering," "pitching and paving," and "the altering, amending, cleansing and scouring of any street" within the city, are, by the express terms of § 6 of the act of April 3, 1801, not only made liens and charges on the houses and lots assessed, having a preference before all other incumbrances upon the same, but it is declared that they may be sued for and recovered with costs, in like manner as if the said houses and lots were mortgaged, &c., for the payment thereof: (§§ 1 and 4 of act of April 16, 1787, and § 6 of act of April 3, 1801.)

The act of 1787 made provision for ascertaining and assessing upon the owners and occupants of houses and lots to be benefited by the "altering and amending of any street, the expenses of the improvement, and for the collection of the same by distress-warrant”—(§ 4 of id.)

The act of 1801 has the same title as that of 1787, viz. "An Act for regulating the Buildings, Streets, Wharves and Slips in the City of New York."-The 6th section of the act of 1801 is in the same terms as the 223d section of the act of 1813. The 1st section of the act of 1801 declares in the broadest and most unqualified terms that every sum that should thereafter be assessed by virtue of that act, among the owners or occupants of any houses and lots, might be sued for and recovered in like manner as if said houses and lots were mortgaged for the payment thereof. It also made the same provision with respect to every sum previously assessed under the act of 1787. But it provided, as § 223 of the act of 1813 does, that any such houses or lots, bonâ fide sold and disposed of before the 3d of April, 1798, should not be affected or charged by any assessments prior to the last named date. The cause of this proviso and the reason of fixing upon the date of April 3d, 1798, are found in the fact, that the fourth section of the act of April 3d, 1798, entitled "An Act concerning certain streets, wharfs and piers, and the Alms-house and Bridewell in the City of New York," provided that the sums to be expended under the latter

Mayor, &c., &c., of the City of New York v. Colgate.

act as therein provided, and also all and every sum and sums of money, which have been or shall at any time or times hereafter be assessed among the owners or occupants of any houses and lots by virtue of the said act entitled "An Act for regulating the buildings, streets, wharves and slips, in the City of New York" (being the act of April 3d, 1787), shall be a real incumbrance, &c." (the residue of the section being in the precise language of § 223 of the act of 1813, excepting that the proviso of the act of 1798 declares that nothing contained in it, "shall extend to charge any such houses or lots, which may have been bonâ fide sold and disposed of, after the making of such assessment thereon, and before the passing of this act).

This act made all assessments, whether prior or subsequent, for the regulating and altering of streets, under and by virtue of the act of 1787, a first lien on the houses and lots assessed, and provided for their collection as if such houses and lots had been actually mortgaged for the payment thereof. The fourth section of it, which contains this provision, is the same in terms as 6 of the act of 1801, and § 223 of the act of 1813. The exemption contained in the proviso of each operates upon sales bona fide made before the date of April 3rd, 1798.

From the 3rd of April, 1798, down to April 9th, 1813, whatever other remedies may have been provided for collecting assessments made upon houses and lots to defray the expenses of regulating streets, it is clear that the remedy invoked in this case was expressly given by § 4 of the act of 1798, and by § 6 of the act of 1801.

The act of 1813, as its title declares, was an act to reduce into "one act" several laws relating particularly to the City of New York. The 223rd section of it is a copy of § 6, of the act of 1801. Construing it according to the natural and obvious meaning of its terms, it would be applicable to the assessment in question. Holding it to be applicable is holding that the law on this point continued the same after the act of 1813 was passed, as it was prior thereto.

But if it be construed to embrace only such future assessments as should be made to defray the expenses of laying out "wharves, piers and slips," then it will not embrace every assessment which shall hereafter be made by virtue of this act,

Mayor, &c., &c., of the City of New York v. Colgate.

nor a large class of assessments to which it related by the express provisions of the act from which such section was copied. I perceive no good reason for giving to the words. "by virtue of this act," the restricted meaning they must receive if construed as if reading, "by virtue of that part of this act relating to wharves, piers and slips only," when that section, by the terms of the several laws so reduced to one act, related to and included assessments like the one in question.

I cannot resist the conclusion that this assessment by force of § 223 of the act of 1818, may be sued for and recovered in the same manner as if the premises on which it was imposed had been actually mortgaged to the plaintiffs for the payment thereof.

If that conclusion be correct, it would seem to follow as a matter of course that the plaintiffs are entitled to the same remedies by action, and to the same relief in it, as if a mortgage had been in fact executed: they would be entitled, unless some of the other grounds of defence are well taken, to such a judgment, as would be proper, if the assessment was secured by a mortgage of the lot assessed, and this was an action to foreclose such mortgage.

The act of February 21st, 1824 (47th session, vol. 6, c. p. 39), if still in force, may perhaps entitle the plaintiffs to the relief prayed for in this action, even if § 223 of the act of 1813, formed no part of the latter act.

The act of 1824 provides that §§ 270 and 271, of the act of 1813, "shall apply to all and every the laws, ordinances, orders, and directions which the said corporation are authorized to make under and by virtue of any part or section of the aforesaid act" (the act of 1813)," or of any other act or acts of the legislature."

Section 270 declares it to be lawful for the Corporation to cause all work, ordered by by-laws and ordinances relating to certain subjects, to be executed at their own expense, on account of the persons on whom the same may be assessed, and 271 declares any such expense which the Corporation may pay, to be a real encumbrance upon the houses and lots, in respect to which such assessments shall have been made, and to be recoverable in like manner as if the houses and lots D.-II.

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