The plaintiffs, some of whom were infants, became the owners of a number of Brooklyn lots which were heavily incumbered by taxes, assessments, water rates and certificates of sale. The enactment of the law of 1883 permitted a redemption at very reduced expense, and the plaintiffs, desiring to avail themselves of the opportunity, determined to sell a portion of the lots to obtain the means of saving the remainder. Of course it was to be expected that any possible purchaser would stipulate to reserve from the purchase-price whatever sums would be necessary to clear and perfect his title beyond all doubt and question, and without peril of litigation over any apparent incumbrance. Such a purchaser the plaintiffs found in James D. Lynch, who agreed to pay for the property a certain sum, "excepting thereout such sum or sums as said Lynch shall pay in discharge of taxes, water rates and assessments and sales for each of the same, in order to free said premises or any portion thereof from the liens thereof or from clouds thereon." The adult plaintiffs agreed to this stipulation, and the proposed contract having been reported to the court in proceedings for the sale of the infant's interest, was deemed just and best for their welfare and a guardian appointed to transfer their title upon the terms of the contract. (Code Civil Pro. § 2358.) That contract signified the vendor's consent that Lynch might use so much of the purchase-money as was needed to pay off not only liens but "clouds;" not merely valid taxes, but apparent liens; not void on their face, but in truth invalid. To that extent his payments bound them exactly as if they had made them themselves, and if they were voluntary payments as to him they were equally so as to them. The lands had been sold to one Andrew S. Wheeler on the 9th of March, 1869, for $366.38 on an assessment levied for the expense of "flagging sidewalks on the west side of Fifth avenue." The case contains no evidence of any kind, and the findings do not tell us under what law the assessment was made, or whether the flagging charged for was wholly in front of plaintiffs' premises or an estimated part of a general expense. We are *Page 582 told only that the taxes were "levied against George A. Powers as owner." The case does not show when the assessment was levied, nor that at that date George A. Powers was not the owner of some freehold estate or interest therein. The findings show that one Thomas Poole was seized in fee of the property in 1831 and died in that year leaving a will, by which he devised the premises to his executors in trust to permit his daughter Eliza to occupy them during her life, or in trust to rent the lands during the same period and pay the rents to her; and at her death the will gave the fee to her issue who might then be living. Eliza died in 1882 after all the assessments complained of were made, and either had a life estate which she could have transferred to George A. Powers, or the executors had one which they could have conveyed to him. In either event he would have been liable to assessment as "owner," and so we cannot say that the assessment was invalid for that reason, which is the only objection made. There may be others, but it is not our duty to search for them. The appellants have rested their case as to the alleged invalidity of this assessment upon the sole ground that it was made against one who was not at the time the owner. They have failed to prove the fact upon which the error claimed rests and we need go no further in the inquiry, and especially not when no adequate basis for such inquiry is furnished. The plaintiffs, therefore, made no case in any view of the subject as to the assessment for flagging. It may have been shown on the trial that George A. Powers had a lease for the life of Eliza and so an estate of inheritance or some conveyance of the remainder. The briefs indicate that some lease to him was proved and was made the subject of comment at General Term. The complaint charged that all the sales were illegal because "levied or charged to a person or persons as owner or owners of said premises who were not the owner or owners thereof nor the occupant thereof." There is not only no finding that George A. Powers was not owner, but none that he was not occupant, and the original charter of Brooklyn (Laws of 1854, p. 864, § 30), provides that land *Page 583 occupied by a person other than the owner, may be assessed in the name of the occupant. The finding that the water rates were levied against vacant property is a finding as to the form of the assesment, but is not a finding that the lots were actually vacant, and especially not that they were so when the flagging assessments were levied, the date of which is not shown. We think their invalidity was not established, and the plaintiffs' action must fail as to them.
We come now to the water rates which are found to have been levied against "vacant property" and against George A. Powers as owner, against unknown owners, and against one Sammis as owner. We are referred in the appellents' brief to the Brooklyn water act as the only authority for these assessments. (Laws of 1859, chap. 396.) We are aware of no other. Three forms of water-rates seem to be contemplated and may be described as "regular rents," "special rates" and assessments against vacant property. (§§ 18, 24.) The first two are to be fixed by ordinance of the common council, but the third by the water commissioners. We must assume from the findings that the rates here assailed were levied against the property as vacant, and therefore by the water commissioners. Section 24 (supra), authorizes them to "fix the price which shall be assessed" "upon every vacant lot situated upon any street, lane, alley or court through or into which distributing pipes shall have been laid," and makes the "sums so assessed" and the "percentages for default" a lien upon the lands and to be enforced like other assessments. No notice to anyone and no opportunity to be heard is given by the act, and it is wholly immaterial whether the water is used or not, and the plaintiffs contend that for such defect the act is unconstitutional and the water-rates absolutely void. (Stuart v. Palmer, 74 N.Y. 183.) These water-rates, at least as to vacant property, are called assessments and are in their nature such, and it is difficult, if not impossible, to see how they can be sustained. But the question is a very important one and need not here be decided, since, if we concede the appellants' claim in that respect, it *Page 584 does not save their action. If the act, under which the water-rates were assessed, is unconstitutional, they were void on their face and did not even constitute a "cloud." Under his contract, therefore, Lynch had no authority to pay them out of the purchase-price, and when he did so, simply paid his own money to the city for purposes of his own with which the plaintiffs have no concern. Lynch remains liable on his contract for the balance unpaid and may be sued for it by the plaintiffs, but the money he needlessly paid was his own which he could use in that manner if he pleased. It was not plaintiffs' money in any sense, or withheld under the contract. If, therefore, the appellants are right as to the constitutional question, it still does not enable them to maintain this action. They sue to recover money which is not theirs and to remove a cloud which is not such. They are not helped by the finding that they have settled with Lynch and adopted and ratified his payments if that is what the finding means. The adult plaintiffs could bind themselves by such an agreement, but when they did, Lynch's payment to the city became theirs, the payment was voluntary and without the shadow of compulsion and cannot be recovered back. The infants, if they are not bound, have not lost their money. It remains in the hands of their vendee, who is bound, under his contract, to pay it to them as an unpaid part of the purchase-price.
The judgment should be affirmed, with costs.
RUGER, Ch. J., RAPALLO and PECKHAM, JJ., concur with EARL, J.; ANDREWS, J., concurs with FINCH, J.; DANFORTH, J., does not vote.
Judgment reversed. *Page 585