Shattuck v. Bascom

• Decision Date: 08 March 1887
• Citation: 12 N.E. 283,105 N.Y. 39
• Parties: SHATTUCK and others, by Guardian, etc., v. BASCOM.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 39

12 N.E. 283

SHATTUCK and others, by Guardian, etc.,

v.BASCOM.¹

Court of Appeals of New York.

March 8, 1887.

Appeal from general term supreme court, Fifth judicial department.

The opinion states the case.

E. D. Northrup, for appellant.

Cary & Rumsey, for respondents.

EARL, J.

The plaintiffs commenced this action to recover a quantity of hemlock bark which the defendant had peeled and taken from the trees standing on lot No. 54, containing 150 acres of land situated in the town of Portville, in the county of Cattaraugus. The defendant, in his answer, denied the plaintiffs' title to the land, and averred that he owned the land, and consequently the bark taken therefrom. Upon the trial it appeared that the plaintiffs claimed title under a deed executed by the comptroller of the state pursuant to a sale of land, in 1866, for arrears of taxes for the years 1856, 1858, and 1860. It is undisputed that the defendant has good title to the land, unless it has been defeated by the tax sale and the deed of the comptroller. The defendant claims that there were certain defects in the imposition of the taxes, and in the subsequent proceedings, which render the comptroller's deed invalid. But the plaintiffs claim that he is estopped from assailing the comptroller's deed by certain facts which will now be mentioned.

In 1869 the defendant executed a quitclaim deed of the land to one Colman, which was duly recorded in the proper clerk's office; and while he held that deed, and the apparent title to the land, in 1873, he commenced an action against Edwin R. Shuttuck, the father of the plaintiffs, under whom they claim, to set aside the comptroller's deed as a cloud upon his title, on the ground that the tax sale was void, and the deed given in pursuance thereof invalid. That action was tried, and resulted in a judgment in favor of the defendant therein, which was finally affirmed in this court. Colman v. Shattuck, 2 Hun, 497; affirmed, 62 N. Y. 348. Subsequently to the entry of that judgment, and before the commencement of this action, Colman reconveyed the land to this defendant, and upon the trial of this action it was undisputed that the deed by this defendant to Colman was given as security, and was, in fact, a mortgage. The trial judge directed a verdict in favor of the plaintiffs, upon the ground that this defendant was bound and estopped by that judgment. Upon appeal by the defendant to the general term, the judgment of the trial term was affirmed, as appears by the opinion there pronounced, upon the ground that the plaintiffs' tax title was valid. But the court there further held that the defendant was not estopped by the judgment between his mortgagee and plaintiffs' father.

Although the conveyance from the defendant to Colman was in form a deed, it was in fact a mortgage, and had all the incidents of a mortgage. Colman could not, upon that deed, have maintained an action of ejectment against his grantor or any other person. All he acquired by the deed was a lien upon the land for the security of his debt, and upon payment of the debt his interest in the land, and his lien thereon, would absolutely cease. Reconveyance by him to this defendant was not necessary to reinvest him with the absolute title, and was necessary only to clear up the record title. Murray v. Walker, 31 N. Y. 399;Horn v. Keteltas, 46 N. Y. 605;Carr v. Carr, 52 N. Y. 251;Morris v. Budlong, 78 N. Y. 543. Therefore the defendant did not, in any sense, take his title from Colman, but his title was anterior to any interest which Colman had in the land; and the legal title was in him at the time of the pendency of the action of Colman v. Shattuck. He was not a party to that action, and it was not carried on at his instance, or for his benefit, and therefore he is not bound or estopped by the judgment rendered therein. It would be quite a novel doctrine to hold that a mortgagor is bound and estopped by a judgment rendered in an action by the mortgagee against some other person to which he was not a party. It was therefore open to the defendant, upon the trial of this action, to assail the title of the plaintiffs.

The act (chapter 209 of the Laws of 1860) made the comptroller's deed presumptive evidence that the sale, and all proceedings prior thereto, were regular, according to the provisions of law directing the same, or in any manner relating thereto. But, as the act made the deed only presumptive evidence, a party against whom a tax title is asserted still has the right to show, by any competent evidence, that the proceedings for the assessment and collection of the taxes were illegal and defective, and that the comptroller's deed is, in fact, invalid.

Upon the trial of this action, and upon the argument of the appeal in this court, the counsel for the defendant pointed out various defects and irregularlties, on account of which he claimed that the comptroller's deed is invalid; but we deem it important now to consider but one of the alleged defects, and that relates to the taxes of 1856. The law in force at that time (chapter 176, Laws 1851) prescribed the form of oath which the assessors, or a majority of them, should take and attach...