By the defendant's charter, the validity of an assessment is to be presumed, and the burden of establishing its invalidity is cast upon the party questioning it. (Chap. 519, Laws of 1870, § 36.) The complaint alleges that the assessment in question was illegal and void; the court found in accordance with the allegation, and there was no exception to the finding. The fact therefore stands without question that the assessment created an apparent lien upon the plaintiffs' land, presumptively valid, although imposed without authority of law. The plaintiffs, upon this state of things, had a clear right as soon as the assessment was laid, to come into court, to have it declared void as a cloud upon their title.
The action is defended on the ground that by reason of subsequent matters the cloud had been removed, and that at the time the action was commenced, no cloud existed by reason of the assessment, or of the subsequent proceedings.
The assessment-roll was delivered to the city treasurer, April 1, 1874, and the land was sold on the assessment April 28, 1876, and bid in by the city. It is claimed that the certificate of sale executed by the comptroller does not conform to the statute. It is a sufficient answer to this point that the complaint alleges that the corporation issued and delivered to the defendant a certificate of sale in conformity with the charter, that the court found that this allegation was true, and that the finding was not excepted to. The defendant is therefore concluded by the record from questioning the validity of the certificate of sale.
The defendant, however, mainly relies for his defense upon the point that by the provisions of the charter the assessment had ceased to be a lien before the commencement of the action, and that it not appearing that the sale was followed by a notice *Page 118 to redeem, served within three years thereafter, the sale had become inoperative and void.
The charter provides that assessments shall be a lien upon the land upon which they are assessed, for five years from the delivery of the assessment-roll to the treasurer. (Ch. 7, § 1.)
This action was commenced January 10, 1880, and the five years from the delivery of the roll expired April 1, 1879. But the sale was made within the five years and therefore during the continuance of the lien. The lien of the assessment was terminated by the sale and merged in the right of the purchaser under the certificate of sale. The fact that more than five years had elapsed from the delivery of the assessment-roll to the treasurer, where there has been an intermediate sale, does not prove that there is no cloud resulting from the illegal assessment. The lien by the sale is transmuted into a claim in favor of the purchaser, under the certificate. The charter provides that a notice to redeem from a tax or assessment sale may be given after the expiration of nine months, and before the expiration of three years from the sale (§ 23), and if the land is not redeemed within three months after service of the notice, the common council is authorized to grant to the purchaser or his assignees a declaration of sale. But it is required that before granting such declaration, an affidavit of service of notice to redeem and a certificate of the comptroller that no redemption has been made, shall be filed with the comptroller (§ 24). It is also provided that such declaration shall not be granted after the expiration of five years from the sale (§ 25), and when granted it is made presumptive evidence that the tax and assessment raised was legally imposed, that due proceedings to authorize the sale were had, and that the sale was regular (§ 29).
The plaintiffs commenced their action within five years after the sale. But it is claimed that as more than three years had elapsed between the time of the sale and the commencement of the action, the whole proceeding was a nullity, unless the notice to redeem had been served, and such service was not shown. But this was an extrinsic fact not of record, and record *Page 119 evidence thereof is not required to be made until the purchaser applies for a declaration of sale, and such application may be made at any time during two years after the expiration of the time prescribed for the service of notice to redeem. The case therefore was this: there was an assessment on the plaintiffs' land presumptively valid, although in truth invalid, followed by a sale and issuing of a regular certificate of sale to the purchaser, creating a right which might, so far as the record shows, ripen into a presumptive title to the land by the granting of a declaration of sale by the common council. If notice to redeem had been served, there was an unquestionable cloud. But whether it had been served or not, was a fact not of record, and no purchaser could safely buy of the plaintiff without investigating and ascertaining this extrinsic fact. This made, we think, a case for relief within the authorities. (Crooke v.Andrews, 40 N.Y. 547; Scott v. Onderdonk, 14 id. 9.)
The judgment should be affirmed.
All concur.
Judgment affirmed.