[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 158 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 160
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 161 The question requiring consideration is presented by an exception taken to the charge of the learned trial justice. He instructed the jury that the plaintiff was at the time of the quarrel in possession of the premises and had the right to use reasonable force to retain her possession and to eject the defendant; that he had no right to exercise force to acquire possession or to remain in the house after having been notified by the plaintiff to leave. It is insisted by the appellant that the adornment of Bates to the defendant was valid and that thereafter he was the owner and in possession of the premises. The statute provides: "Sec. 3. The attornment of a tenant to a stranger shall be absolutely void and shall not in any way affect the possession of his landlord unless it be made (1) with the consent of the landlord; or, (2) pursuant to, or in consequence of a judgment at law or the order or decree of a court of equity; or, (3) to the mortgagee after the mortgage has become forfeited." (1 R.S., 744). *Page 162
All attornments by lessees were not abolished by the Revised Statues. (Austin v. Ahearne, 61 N.Y. 6.)
If then, the defendant, after obtaining tax title to these premises was a stranger to the plaintiff in respect thereto the attornment was void, otherwise it was valid. In its general legal signification, stranger is opposed to the word privy. By privity is meant the mutual or successive relationship to the same rights of property, and privies are classified according to the manner of relationships. There are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor; privies in representation, as testator, executor and administrator; privies in law, as where the law without privity of blood or estate casts land upon another as by escheat. (1st Greenleaf, § 189; Bouvier's Institutes.)
We are of the opinion that one who acquires real estate pursuant to a tax sale is not in privity with the former owner. No contractual relation exists between them. The owner does not grant his title. Such a purchaser is a grantee of the state. (Becker v. Howard, 66 N.Y. 5.)
The land is assessed irrespective of any special interests, the taxation of all particular estates or rights being merged in the burden put upon it. If the tax be not paid, then the state, by virtue of its taxing power, and through the medium provided by statute, either acquires the land or grants it to a citizen. The purchaser is not subjected to any of the inconveniences of the old title, nor can he take any advantage from it. Covenants running with the land do not bind him, nor do him any good. (Blackwell on Tax Titles, § 965.)
He not only obtains his title from a source, other than the former owner, but the estate acquired is not of necessity the same. The owner of the old title may have granted rights of way and other easements which a purchaser from him would be estopped from denying. He may have encumbered the lands by mortgage, in which event the estate acquired by his grantee would likewise be burdened with it. But, as we have seen, the owner of the tax title obtains the land free from encumbrances of every character, not excepting the mortgage lien after *Page 163 the mortgagee's time for redemption has expired. (Becker v.Howard, supra.)
It seems to be apparent therefore that the plaintiff and defendant were not privies, but strangers. It follows that the attempted adornment by the tenant to this defendant was void, and that the trial court rightly instructed the jury.
We do not regard Hubbell v. Weldon, (Hill Denio's Supplement, 139) as an authority upon the question here decided. Neither the right of a tenant to attorn, the statute in relation thereto, nor the question of privity were before the court for consideration. The action was ejectment brought by the grantee, of one who had acquired title pursuant to a tax sale, against a tenant who had entered into possession of the premises under a lease from the former owner. Objection was made that the lot was held adversely at the time of the conveyance from the purchaser at the tax sale to the plaintiff, and that for that reason the deed was void. And it was with reference to that question solely that the observations were made which are urged in support of appellant's contention.
The other exceptions do not require consideration.
The judgment should be affirmed.