City of Buffalo v. Balcom
| Decision Date | 01 October 1892 |
| Citation | 134 N.Y. 532,32 N.E. 7 |
| Parties | CITY OF BUFFALO v. BALCOM et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of Buffalo, general term.
Action by the city of Buffalo against Mary R. Balcom and others to foreclose a mortgage. From a judgment of the general term affirming a judgment of the special term in plaintiff's favor, defendants appeal. Affirmed.
Adelbert Moot, for appellants.
Philip A. Laing, for respondent.
This action was brought to foreclose a mortgage upon real estate in the city of Buffalo. Certain taxes which had been imposed by the plaintiff upon the lands of the mortgagor, Philo A. Balcom, remaining unpaid, said lands were sold, and at the sale, in default of bidders, struck off to the city, and certificates of sale issued to it pursuant to the charter. The consideration of the mortgage and the bond accompanying it was the cancellation of such certificates. The question presented is whether the mortgage is valid. The appellant contends that, as the purpose of the contract was to secure the payment of a tax, it was not within the legal capacity of the city to take, hold, and enforce such a security, and that the contract, as to the plaintiff, is ultra vires, and contrary to public policy. Assuming all that the learned counsel has said upon the general policy of permitting a municipal corporation to accept anything but money in the payment of taxes, and the embarrassment which would follow from the general adoption of any other course, I fail to see how the state, by whose favor the municipality exists, or the people who reside within the limits of the city, have any interest in arresting the operation of the contract in suit, and the recovery of the money equitably due upon it. If there has been, in respect to this contract, any wrong action on the part of the common council, any undue favor to the mortgagor, or any misappropriation of the funds of the city, the surest and most effectual way of righting the wrong done is to enforce the mortgage, and thus, to the extent of the value of the security, restore the money to the treasury of the city. But the act of taking the bond and mortgage in suit was not illegal. There is no provision of law which forbids it. The land mortgaged had been sold to pay the tax imposed upon it, and, in default of bidders, was struck off to the city, and it received and held the certificate of sale. We may assume the proceedings in relation to the levy of the tax and the sale were in compliance with the charter, as, if they were otherwise, it rested with the appellants to show it. The certificate of sale after failure on the part of the owners to redeem was to be followed by a ‘declaration of sale,’ which the charter made evidence or the purchaser's title. Whether the city, at the time of taking the mortgage, was entitled to receive the ‘declaration of sale,’ and, under it, possession of the property, is of no importance. The certificate itself was made assignable, and the only act requisite to obtain the declaration of sale was service on the owners of notice to redeem. Such rights as the city had in the property it could, therefore, sell, and in so doing there was nothing to prevent its dealing with theowners of the land. It could sell the certficate to any one, and we are not referred to any provision of the charter which required it to sell for cash only, and certainly there is no rule of general policy which required it to do so. The general public interest was the only rule which was to guide the common council, and in all other respects it could sell and convey the same as an individual. Commissioners v. Armstrong, 45 N. Y. 234;Insurance Co. v. Stevens, 101 N. Y. 411, 5 N. E. Rep. 353. The common council could therefore sell these certificates to the owner of the land, and receive from him such security for the payment of the purchase price as, in...
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