[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 123 We are of opinion that the judgment should be affirmed. *Page 126
(1) Assuming, as is claimed by the counsel for the defendants, that the title and interest of Charles F. Dowd as lessee of the Temple Grove Seminary premises from July 1, to September 1, 1879, was subject to assessment and taxation, and that the property was properly included in the annual roll for that reason, yet this furnished no justification for the imposition of a tax upon the premises by the board of supervisors, on account of such title or interest, after the estate of the lessee had expired, provided the premises were exempt from taxation as against the plaintiff. It would be impracticable to tax the land on account of the interest of a lessee, and at the same time protect the owner of the fee in the enjoyment of the exemption, except in a case where the term of the lessee was outstanding when the tax was imposed, and the sale could take effect upon the lessee's interest in the unexpired term.
(2) We think the plaintiff did not waive or forfeit the exemption given by the statute (1 Rev. Stat. 388, § 4, subd. 3), by leasing the building and premises during the usual vacation period in the summer for a boarding-house. The policy of the exemption is the encouragement of learning. This policy is not subverted, but on the contrary is promoted by permitting the plaintiff to devote the premises to a profitable use during the summer months when they are not needed and cannot be used for the purposes of a school. If the premises should be left wholly vacant during this time, it is not pretended that the property could be taxed. By leasing the premises during the summer the corporation is enabled to increase its income applicable to the purposes of its creation. If the exemption from taxation enables it to obtain a larger net rental than could be obtained from ordinary property, it is an advantage to which it is entitled, and is consistent with the policy upon which the exemption is based.
(3) It is claimed that the assessment is void by reason of the generality and indefiniteness of the description of the property on the assessment-roll. It is, however, definitely described in the notice of sale, and the statute (Chap. 68, Laws of 1880) requires that the certificate of sale shall describe the real estate purchased, and that the tax receiver, when the time for redemption *Page 127 has expired, shall execute to the purchaser a conveyance of the property sold, and the eighth section of the act makes the conveyance "presumptive evidence that the sale and all the proceedings prior thereto, from and including the assessment of the lands, were regular." A grantee under the tax sale would not be required to show a regular assessment in order to recover the premises under his deed.
(4) The right to maintain an action to set aside an assessment and sale is given by the last clause in the eighth section of the act, which declares that "any person interested in property upon which any tax or assessment has been, or may be assessed or levied, may bring an action to vacate or set aside such tax or assessment, or any sale made by virtue thereof, and to enjoin or restrain the sale of any real or personal property, provided such action shall be brought within two years after written notice of such sale." The court found that the assessors assessed Charles F. Dowd the sum of $13,335 for and on account of the real estate of the plaintiff, described in the complaint; that the board of supervisors levied a tax of $194.69, and issued their warrant for its collection; that the receiver of taxes in pursuance of the warrant and in accordance with the provisions of chapter 68 of the Laws of 1880, advertised the real estate for sale thereunder, and threatens to sell the premises and convey the same to the purchaser in the manner authorized by that act. This finding is not excepted to. Independently of the general rule governing the right to maintain an action to remove a cloud upon title, or to set aside an illegal assessment, we are of opinion that the statute, in connection with the facts, entitles the plaintiff to maintain this action. (See Scott v. Onderdonk, 14 N.Y. 9;Metzger v. Attica and Arcade R.R. Co., 79 id. 171; Rumsey v. City of Buffalo, 97 id. 114.)
The questions are elaborately considered in the opinions below, and we deem it sufficient to state our concurrence in the result reached.
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 128