[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 161
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 162 The right to recover from the defendant the money paid for the assignment of the certificate of sale is claimed by the learned counsel for the appellant, upon the ground that it was paid under a mistake of fact. And the claim rests upon the assertion that the transaction between the parties was not solely an assignment of the right, title and interest of the defendant in and to the certificate of sale, but was a purchase of the outstanding term for which the property had been sold, which purchase was induced by the recital in the lease that "All the proceedings prior and subsequent to the sale * * * required by law to authorize this conveyance were duly had."
It is not necessary to refer in detail to the numerous authorities cited by the appellant which he claims entitles him to a recovery in this action. So far as they are applicable to cases of this character, they hold that when there is a mutual error as to the existence of the subject-matter of the contract, *Page 164 the contract may be rescinded and money paid under it may be recovered back. (Martin v. McCormick, 8 N.Y. 331; Gardner v. Mayor of Troy, 26 Barb. 423.)
In the cases cited there was a supposition by both parties that by means of the assessment and sale the vendors had acquired an interest in the land which they could sell and convey. This erroneous supposition was the mutual error which gave the vendee a right to recover the money paid for the conveyance. I do not think this case falls within the principle of the authorities cited.
The trial court found that the money was not paid under a mistake of fact, but solely in payment of defendant's interest in the certificates assigned to the plaintiff. There was no oral testimony given upon the trial, and the evidence consists of the admission in the pleadings, the certificate of sale, the assignment thereof and the lease.
The allegation in the complaint that the money was paid at the instance and request of the defendant as the purchase-money for the conveyance of the land was denied by the answer and is unsupported by proof. I do not see how, upon this evidence, it could be seriously claimed that the transaction between the parties was a sale and purchase of an interest in the land, or that the case was brought within the principle of the authorities cited on the appellant's brief. In those cases the parties dealt with each other on the ground of a conceded right of property in the defendants. Here the assertion of such right is denied. The city, at the date of the assignment, had no apparent title to the land, and the proof does not show that either party assumed or supposed that it had acquired any interest therein. True, the time for redemption had passed, and the city might have taken a lease, but whether it should accept one or not depended on the vote of its common council. (§ 18, tit. 8, of the charter.) By section 19 of the same title it was the duty of the registrar of arrears to assign the certificate of sale to any person who would pay to him the amount required to redeem the land, at the date of such assignment; and in the absence of any *Page 165 evidence as to the particular transaction in question, it is fair to presume that the assignment of the certificate was made under the provision of the section last cited.
I think the finding of the trial court was correct, and that the money was paid by the plaintiff in consideration of the assignment of the defendant's right, title and interest in the certificate.
The giving of the lease imposed no additional liability on the defendant. That was a duty resting upon the registrar of arrears under the charter, and was a thing he was bound to do upon demand of the holder of the certificate of sale, in case the property was not redeemed by the owner. Its recitals are not covenants. The charter (tit. 8, § 10, chap. 863, Laws 1873), requires that each conveyance of land sold for taxes shall contain "a brief statement of the proceedings had for the sale of the land, and shall be evidence that such sale and other proceedings have been regularly made and had according to the provision of this act."
In Rathbone v. Hooney (58 N.Y. 463), this court decided that a conveyance under a similar statute was evidence only of the proceedings connected with the sale, and not of the assessment or of the proceedings which took place before the right to sell attached. The lease, therefore, cannot be construed to be a representation, on the part of the city, that the proceedings by which the assessment was laid were regular. Whatever its recitals may be it is valid and effective only so far as it is warranted by the statute. All else is unauthorized and not binding upon the city. No covenant is implied in a conveyance of land (1 R.S. 738, § 140), and without the aid of fraud or mutual mistake of fact (neither of which is pleaded or found), the plaintiff was not entitled to recover. (Whittemore v. Farrington, 76 N.Y. 452.)
Under the assignment of the certificate of sale the plaintiff stands in the same position as if he had bid in the land at the tax sale. He had the option to receive a lease for the term specified in the certificate, or if irregularities were discovered in the proceedings preceding the sale, to surrender the certificate *Page 166 and receive back the money paid. The invalidity of the assessment was apparent on the face of the roll. He must be presumed to have had notice of it. He may have assumed that the affidavit of the assessors was a substantial compliance with the statute, but if he did, his error was not one of fact, but one of law. The contents of the affidavit were known to all who chose to inspect the roll. His inference that it complied with the statute was a legal inference, and the mistake was one of law. With this defect open and patent to his inspection plaintiff exercised the option given him by the terms of the sale, and surrendered his certificate and accepted the conveyance of the land to which, by the statute, he was entitled. His acts were entirely voluntary and the money cannot be recovered back on proof that the sale was invalid.
The law is settled that a purchaser of a defective title at a tax sale cannot recover the money paid from the city or county for which taxes the land was sold. (Lynde v. Melrose, 10 Allen, 49; Brevoort v. Brooklyn, 89 N.Y. 135.)
The judgment should be affirmed, with costs.