Mayor, &c., &c., of the City of New York v. Colgate. "Should any mistake or irregularities in the proceedings for assessments, collections or sales on the part of the corporation be discovered, so as to prevent this sale from being effectual, the sale to be void; and the purchase money with interest for the time, will be returned. The whole of the purchase money to be paid immediately after the sale. "Street Commissioner's Office, "JOHN EWEN, "October 27th, 1841." "Street Commissioner." The redemption notice, in reference to such sale, given by the Street Commissioner, was published for the same length of time, and in the same manner as that mentioned, and referred to in Dougherty & Hope, 3 Denio, p. 594, and 1 Coms. p. 79. It was therefore ineffectual to vest a title in Robert Colgate for the term of ten years, mentioned in the certificate of his purchase. In February, 1848, the Mayor, Aldermen, and Commonalty of the City of New York, passed an ordinance for the return to the purchaser, in this and similar cases, of the purchase money. On the 2nd of May, 1849, Robert Colgate presented to the Street Commissioner the certificate of the purchase, and demanded a return of the purchase money. It was returned to him with interest, and the certificate of purchase was then surrendered by him, as cancelled, to the Street Commissioner. The assessment remaining unpaid, and the defendant refusing to pay it, this action was commenced in June, 1851, to recover it with interest, and to obtain a judgment of the Court, that it was a lien upon the premises in question, and that the premises be sold to satisfy the same together with the costs of this action. The cause was tried at special term before Mr. Justice SANDFORD, who rendered judgment pro forma for the defendant with leave to the plaintiffs to appeal without security to the general term. H. E. DAVIES, for the plaintiffs, now contended that the judgment for the defendants should be reversed and a judg Mayor, &c., &c., of the City of New York v. Colgate. ment be entered for the plaintiff's upon the following grounds: I. The assessment was regular, and constituted a valid lien upon the lands described in the report. § 178, of act of April 9th, 1813. 1. The lands deemed to be benefited, are correctly described, and the amounts of the benefits ascertained. 2. This report has become a judgment of the Supreme Court by its confirmation, and is binding and conclusive on all. (Embury vs. Conner, 3 Comstock, 522.) 3. If there was any irregularity, it was to be taken advantage of and objected to on the motion to confirm the report. (Same case. Stafford vs. The Mayor of Albany, 6 John. Rep. p. 4.) The court say an assessment cannot be set aside for irregularity. "The statute makes the assessment conclusive; and the rights of the parties were fixed when the suit was commenced," it being a suit to recover an award for damages which had been confirmed and subsequently set aside for irregularity.-Held that the plaintiff could recover. Chan. Kent (in Le Roy vs. the Mayor, &c. 4 John Ch. Rep. 354), on the authority of English cases then cited, held an assessment for sewer final; on the ground, that the act declared the ratification to be final and conclusive. II. The sale of November 24th, 1841, did not extinguish or impair the lien. 1. It was a condition of the sale, that if any irregularity should be discovered, so as to render it ineffectual, the sale was to be void, and the purchase money returned. 2. It is conceded, that the redemption notice not having been published according to the statute, no lease could ever be given to the purchaser on said sale; or, if given, would not have conveyed any title. (Striker v. Kelly, 7 Hill. Rep. Doughty v. Hope, 3 Denio, 598.) 3. The conditions of the sale rendered it void; and the purchaser could recover from the corporation the amount paid on the sale. (1 Sand. Sup. Ct. Rep. 485.) 4. A defendant, arrested on a Ca. Sa. set aside for irregularity, may be arrested again on another Ca. Sa. issued upon the same judgment. (Merchant v. Franks, 3 Ad. & E.) A foreclosure and sale on a mortgage does not extinguish the debt, only pro tanto. (Globe Ins. Co. v. Lansing, 5 Cowen, 380. Lansing v. Goelet, 9 ibid. 346.) Lands sold on execution for less than the amount due, may Mayor, &c., &c., of the City of New York v. Colgate. be re-sold if they become the property of the debtor, the lien of the judgment still continuing. Bronson, J., says, "But when Brackett, the judgment debtor, redeemed from that sale, Davis (the purchaser at the former sale) got his money back again with interest, and the sale became null and void." (Wood v. Colvin, 5 Hill.) A sale by sheriff does not divest the estate of the debtor, unless the purchase money is paid, and the deed delivered. (Catlin v. Jackson, 8 John. Rep. 406.) On page 429, Chancellor Kent says: "If the money is not paid, or if the sale does not operate to satisfy the debt, what benefit arises to the owner? It would be competent for the sheriff to return, that the money was not paid, and that the premises remained unsold. In chancery, if the money bid at auction is not paid, it is the uniform practice to annul the sale." A sale by one of the commissioners of loans, under a mortgage given to the commissioners, the statute requiring that two commissioners should be present at the sale, and a deed delivered, it was held that the sale was void; but not pretended that the mortgage was paid, or the lien created by it affected or impaired. (Powell v. Tuttle, 4 Comstock.) III. The confirmation by the court of the assessment for benefit, created a lien in favor of the corporation, having priority of all other liens: 1. By way of mortgage; 2. By way of judgment. 1. Section 223 declares, that all assessments thereafter to be made by virtue of that act, shall become liens, &c., and shall be entitled to a preference over all other incumbrances upon the same; and may be sued for and recovered, in like manner as if the said houses, &c., were mortgaged to the corporation for the payment thereof. In Dale v. McEvers, 2 Cowen, 118, it was held, that a tax laid upon real estate in the city of New York, for the purpose of opening or improving a street, &c., takes preference to a prior mortgage. It is apparent from the course of legislation in this state, that the legislature have ever treated these statute liens precisely as a mortgage. And in accordance with 8 223, of the act of 1813, as prior mortgages. This is manifest from a perusal of § 162 and § 163, of the act of April 9th, 1813. Those sections provide, that in all cases where any assessment, tax, rate, charge, &c., in favor of or payable to the Mayor, &c., shall, by virtue of any act or Mayor, &c., &c., of the City of New York v. Colgate. acts of the legislature of this state, be made, or in any manner become a mortgage, lien, charge or incumbrance, upon any lands, it shall be the duty of the Mayor, &c., to cause a note thereof to be filed with the register, &c. And no such assessment, rate, tax, charge, &c., shall in any case or manner be, or operate as a mortgage, lien, charge or incumbrance, upon any lands, &c., so as to defeat, prejudice, &c., the title or interest of any bonâ fide purchaser or mortgagee of said premises, unless said note, &c., shall have been filed with the register, &c. 163 provides for cancelling such registry, on payment of any such assessment, rate, tax, &c. By an act of April 11th, 1815, these sections were repealed. (Laws of the city, p. 776.) It is stated in the preamble to this repealing act, that the Mayor, &c., had represented that the registering in the office of the register, of the taxes and assessments, was not only expensive, but altogether unnecessary, &c. Therefore, &c. The acts of May 14th, 1840, and May 6th, 1841, authorizing mortgagees to redeem lands sold for assessments and taxes, recognize their existence as liens; and section 3 of the former, and section 6 of the latter, create liens in their favor to the amount which they may pay on such redemption, in the same manner as though the lots were mortgaged to them. Other liens on real estate have been created by statute. 1 Rev. Stat. 3d ed. p. 396, § 37, provides, that the bond of the town collector of taxes, shall be a lien on all the real estate held jointly and severally by the collector and his sureties within the county. The act creating the office of the receiver of taxes, Laws of 1843, p. 314, § 4, enacts, that the receiver shall give bond, with sureties, and every such bond shall be a lien on all real estate held jointly and severally by the receiver and his sureties within the county, at the time of the filing thereof, and shall continue such lien till the condition thereof, and all costs and charges incurred in the prosecution thereof, shall be fully satisfied and discharged. Provision is made by law, for the chamberlain to execute a satisfaction of the bond, and thus discharge the lien. A like lien is created by the law organizing the Croton aqueduct department. Laws of 1849, p. 541, § 18, provides, that the regular water rents, when established, shall become a charge and lien upon such houses and lots, &c.; and Mayor, &c., &c., of the City of New York v. Colgate. the same are to be collected in a similar manner with the taxes, and as a part thereof. A lien on land continues a charge thereon for the term of twenty years. (Gore v. Brazier, 5 Mass. Rep. 542.) 2. By the confirmation of the report by the Supreme Court, the judgment became a judicial proceeding, and a judgment in rem against the lands described in the report, for the amount which the court determined they were benefited. Liens by judgment are not presumed to be paid, until after the expiration of twenty years; and then that presumption may be rebutted, as in case of mortgages. Judgments are liens on lands. (2 R. S. 3d ed. p. 454, § 6; p. 455, § 7.) Such lien shall continue for ten years, after which, it ceases to be a lien, as to purchasers in good faith and subsequent incumbrances. The presumption at common law, of payment after lapse of twenty years, did not attach to a judgment. It did to a debt due by specialty and to sealed instruments. (Smith's Ex'rs v. Miller, 14 Wend. 188. 2 R. St. 3d ed. p. 398, § 46, 47, 48.) In Clark v. Lector's Ex'rs, 23d Wend. Rep. 477, plaintiffs sued out a sci. fa. to revive a judgment recovered previous to Jan. 1850. The case was decided in May, 1840. Nelson, Ch. J., in delivering the opinion of the court, says, "In this case, the plaintiff still has his lien against the realty, and may enforce it against the heir and terre tenant; or if that is sold under the surrogate's order, the judgment takes preference according to the lien. And probably, under § 42, the next of kin or legatees, may still be liable, if assets have been paid to them. IV. The statute of limitations does not apply. 1. Because the lien is in the nature of a mortgage. 2. It is in the nature of a judgment in rem, against the land. 3. It is clearly a lien or charge on lands, which continues for twenty years. But if the claim be but a simple contract debt, the lien on the land is not discharged, though the debt be barred. (Angell on Limitations, p. 77.) If a pawnee is barred by the statute from recovering a simple contract debt, in such a case it is equally clear, although the remedy to enforce the debt may be barred, yet the lien on the property pledged will remain. Thus, in an action of trover, brought in 1800, to recover certain merchandize, the defendant, a wharfinger, claimed a lien upon it for the balance of a general account, which was due in 1790. It was |