In 1941 Arthur J. Moore, as Treasurer and Collecting Officer of the Village of Lynbrook executed and delivered to the plaintiff a deed of parcels of land shown on the tax map of the incorporated Village of Lynbrook. Prior thereto the Village of Lynbrook had obtained a judgment in proceedings brought for the foreclosure of tax liens upon these parcels *Page 476 in accordance with the provisions of title 3 of article 7-A of the Tax Law of the State of New York entitled "FORECLOSURE OF THE TAX LIEN BY ACTION IN REM". Thereafter the plaintiff, Lynbrook Gardens, Inc., and the defendant Ullman entered into contracts for the sale and purchase of two of the parcels of land which had been conveyed to the plaintiff. The price fixed for one parcel was $125 and the price fixed for the other parcel was fifty dollars. At the time set for closing, Lynbrook Gardens, Inc., tendered deeds for the two parcels it had sold to the defendant. The purchaser refused to accept title on the ground that the tax law which authorizes proceedings in rem for the enforcement of the tax lien is unconstitutional. A judgment of foreclosure rendered in accordance with the provisions of the tax law without personal service of process would, it is said, deprive the owner of his property without due process of law in violation of provisions of the Constitutions of the State of New York and of the United States.
The plaintiff brought this action against the defendant to compel specific performance of the defendant's contract to purchase the land. Concededly the action for specific performance has been brought for the purpose of testing the validity of title 3 of article 7-A of the Tax Law. Indeed, the contract of sale was formulated in manner intended to facilitate the prosecution of an action to test the constitutionality of the statute. The courts below have held that a judgment of foreclosure rendered without personal service of process in the proceedings in rem against property upon which taxes were in default did not deprive the delinquent taxpayer of his property without due process of law, but that a judgment in rem for the foreclosure of a tax lien on which taxes had in fact been paid but which had been erroneously included "on the list of delinquent taxes" would violate the provisions of the Constitution.
We have come to the conclusion that the validity of the provision of the statute cannot properly be determined in this action. We might, perhaps, assume that the defendant entered into the contract to purchase the two parcels of land because he desired in good faith to acquire the property, and that he is defending the action in order that he may not be compelled to pay even the small purchase price for a title to the property *Page 477 which is unmarketable. Otherwise there would be no real controversy between the parties upon which the court may properly express an opinion. (Lord v. Veazie, 49 U.S. 251; UnitedStates v. Hamburg-American Co., 239 U.S. 466; United States v. Johnson, 319 U.S. 302.) Upon that assumption the ultimate question which, under the pleadings, the court may be called upon to decide is whether the title tendered by the plaintiff is marketable. A court may decree specific performance of the contract of purchase only if the deed which the purchaser would be compelled to accept transfers a title which cannot thereafter be challenged on substantial grounds. (Abbott v. James,111 N.Y. 673.) At the time when the deed is tendered questions of law which have not yet been judicially determined by the courts may cast a shadow of doubt upon the title; the shadow is removed when a court which can authoritatively decide those questions of law has spoken. A decree of specific performance does not compel a purchaser to accept a doubtful title where the decree itself constitutes an authoritative determination of the questions of law which until that time were not free from doubt. (See Pomeroy on Specific Performance, 3d ed., 1926, § 202 et seq., and cases there cited. Forster v. Scott 136 N.Y. 577.) In this case, however, the courts of this State cannot authoritatively determine the questions of law which create serious doubt as to the validity of the statute by virtue of which the seller has acquired title and no decree of specific performance can give to the buyer assurance that the title transferred to him will not be successfully challenged thereafter.
The question of the validity of the statute has been challenged on substantial grounds. This court can authoritatively determine whether or not the statute violates the provisions of the Constitution of the State of New York; only the Supreme Court of the United States can ultimately determine whether the statute violates the provisions of the Constitution of the United States. Even though this court were to sustain the validity of the statute, the Supreme Court of the United States might still reach a different conclusion. A subsequent purchaser could at any time reject title on that ground and litigate that question in a different forum. A title which can be challenged in that manner is not marketable and decree of specific performance may not be rendered under such circumstances. *Page 478
The judgments should be reversed and the complaint dismissed, without costs.