Cromwell v. Maclean

• Decision Date: 02 December 1890
• Citation: 123 N.Y. 474,25 N.E. 932
• Parties: CROMWELL, Treasurer, v. MACLEAN et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 474

25 N.E. 932

CROMWELL, Treasurer,

v.MACLEAN et al.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, second department.

Calvin Frost, for appellant.

Wilson Brown, for respondent.

PECKHAM, J.

1. It is claimed on the part of the defendant Mrs. MacLean that she was improperly made a party to the action, and that the motion made at the end of the case to dismiss the complaint as to her should have been granted on the ground, as therein stated, that her rights under the tax-sales and leases were paramount and adverse to the claim of the plaintiff under his mortgage, and could not therefore be adjudicated in a foreclosure action. Upon the correctness of this abstract proposition, we entertain no doubt, and if the question had been raised in her behalf at the proper time, the complaint should, as to her, have been dismissed, and an exception to the refusal would have been fatal to the plaintiff's judgment herein. But we think the defendant, by proceeding as she has, waived her right to raise this question, and it is now too late for her to ask this court to set aside the proceedings as to her upon the ground stated. The pleadings show that she has herself sought an adjudication upon this very question in this action. The complaint has the usual allegation that defendants have or claim to have some interest in, or lien upon, the premises mortgaged, but that such lien or claim, if any, has accrued subsequently to the lien of the mortgage. Mrs. MacLean in her answer puts in issue the allegation that the mortgage is a first lien, as alleged in the complaint. She also sets up the sales under the tax proceedings, and the leases made thereunder, and alleges that she is now the owner thereof, and in possession, and entitled to the possession, of the premises. She also asks that her rights might be adjudged to be paramount, and not subordinate, to the rights of the plaintiff under his mortgage, and that she might be adjudged to be the owner of and entitled to the damages mentioned in the complaint, for the taking of a portion of the premises by the city of New York. The plaintiff replied, asserting that the leases were void and of no effect, and that any title of defendant under the leases was not paramount, but subordinate, to the mortgage. He asked judgment establishing that the plaintiff's mortgage was paramount to the title of defendant under the leases. Upon these pleadings the parties went to trial, and the plaintiff made out a prima facie case for the foreclosure of his mortgage. The counsel for the defendant Mrs. MacLean then offered in evidence the various leases printed in the case, under which she claimed title, and called witnesses to prove that they covered the mortgaged premises, and then rested. The plaintiff in answer to the evidence regarding such leases went into proof tending to show that the assessments and the proceedings following them were irregular and void. All the evidence on that subject offered on the part of the plaintiff, and received by the court, was taken without any objection on this ground on the part of defendant, and no question of this kind appears to have been thus far raised by her. After the plaintiff had again rested, the defendant made her motion to dismiss the complaint as to her, and then for the first time her counsel raised the question that her title was paramount to the plaintiff's mortgage, and could not be passed upon in this action. This objection, under the facts above set forth, we think, was taken too late. It is not a question of jurisdiction in the court over the parties or the subject-matter, and hence consent may waive any irregularity existing in pursuing an investigation of, and in adjudicating upon, such questions, in an action of this nature. If such consent be given, and not only mere consent but a positive request be added and incorporated in the pleadings, we think the court then has the right to pass upon the question. It may, of course, and on its motion, refuse so to do. In this case the defendant never claimed either by answer or evidence that she had been improperly made a party defendant, and that her paramount rights could not be litigated in the action. If she had desired to do this, all the evidence necessary for that purpose would have been the leases, showing that she claimed under them, and that they had been executed in due form of law. This would have shown the nature of her claim, and if it were valid it would have appeared to be paramount to the mortgage. Whether it was valid or not would have been a question not to be litigated in this action under her objection taken in due time. She pursues the opposite course, and in so doing comes directly within the principle decided in this court in Helck v. Reinheimer, 105 N. Y. 473, 12 N. E. Rep. 37. A judgment in such case binds all parties to it. This ground for a reversal of the judgment in this action we hold to be untenable.

2. Conceding, for the purpose of this point that the assessments and sales and leases were otherwise regular and valid, the plaintiff claimed that his lien as mortgagee was not cut off, nor any of his rights under the mortgage divested, by reason of such proceedings, because, by the provision contained in section 2, c. 239, Laws 1868, (an act relating to the sale of lands in Westchester county for the non-payment of taxes,) the plaintiff, as mortgagee, was entitled to six months' notice in writing of the sale of the land under the tax proceedings, and that, in the absence of such notice, he, as such mortgagee, could not, by the express provisions of such section, be divested of his rights in such property. The plaintiff's mortgage had been duly recorded before the sale of the land for any of the taxes, and no notice in writing of such sale had been given him. The defendant answers this contention by saying that the act referred to was repealed by implication by the passage of the act (chapter 610, Laws 1874) relating to sales of land for unpaid taxes in Westchester county, and that, by section 25 of such act, a mortgagee was only entitled to notice that a sale had taken place, when he had filed a notice of his lien in the town-clerk's office where the land was situated, and that no mortgagee's rights were saved from such sale unless such notice had been filed in such office. It is conceded that the plaintiff never filed such notice in the town-clerk's office. If the act of 1868, or the second section thereof, be not repealed, the plaintiff has not been divested of his rights as mortgagee. A careful perusal of the act of 1868, and also of the various prior acts relating to the proceedings for the collection of unpaid taxes in Westchester county, of which the act of 1868 is an amendment, shows that it was a perfect system within itself, which those acts provided, for such collection. A like perusal of the act of 1874 must convince any one that it constituted a new, independent, and perfect system for the same purpose as that which previously existed, and that a totally different process in many and important particulars was therein introduced relative to such proceedings. The later act dropped out the county treasurer as an important functionary in the process, and substituted the supervisor of the town, and the whole proceeding was made in substance one by the town instead of one by the county treasurer. Various provisions abound in each system for the giving of notices, and for the conduct of sales of lands, and provisions were made in each in regard to notices to mortgagees. I cannot but come to the conclusion that the act of 1874 was plainly meant to introduce a new system, and to embrace all the law upon that subject as against that which was contained in the prior acts upon the same subject relating to Westchester county. The rule in such cases is familiar, and has been several times passed upon by this court, and nothing more need be added to what has been stated in the cases cited. See In re New York Institution, etc., for Deaf and Dumb, 121 N. Y. 234, 24 N. E. Rep. 378; Anderson v. Anderson, 112 N. Y. 104, 19 N. E. Rep. 427; Horton v. Cantwell, 108 N. Y. 255, 15 N. E. Rep. 546; People v. Jaehne, 103 N. Y. 182-194, 8 N. E. Rep. 374; Heckmann v. Pinkney, 81 N. Y. 215. If the proceedings leading to the tax sales and leases were valid, it follows that the rights of the plaintiff were divested by such sales and leases, because he never complied with the terms of the twenty-fifth section of the act of 1874, by filing notice of his lien with the town-clerk, and it is only in such event that his rights are protected, in case the supervisor fails to give notice as provided for in the section.

3. The question then presents itself, are the assessments and subsequent proceedings, under which the defendant holds the leases, valid? The defendant claims under five several leases made in the years 1878, 1879, 1881, 1886, and 1887, which leases are based upon assessments made in the years 1876, 1877, 1879, 1884, and 1885. The assessments in all these years were made under the column headed ‘Name,’ in these words: ‘Wilson, Edward J., Estate.’ In the roll of 1877 the word ‘town’ appeared over the words ‘Wilson, Edward J., Estate.’ In that of 1879 the same assessment is made as in 1887, excepting that, under the columns ‘Quantity of Land,’ ‘Full Value of Land,’ the word ‘non-resident’ is written above the proper answer to be made for each of such columns. In 1884 and 1885, in the column under the word ‘Name’ appears the word ‘non-resident,’ and beneath that, ‘Wilson, Edward J., Estate.’ There was also seemingly, at the bottom of the roll of 1876, a brief description of the property, commencing in this way, ‘Town described property.’ ‘E. J. Wilson estate, farm, 70 acres,’ and then followed the boundaries. A reference to the evidence, however, shows that this description is on a different page from that which contained the...