There can be no doubt but that a sale of property for unpaid' taxes which remains unredeemed would constitute an incumbranceon the property. It is claimed that there was no proof given on the, trial of unpaid taxes and a sale of the property therefor. These, facts were proved by paroi without the production of any documentary evidence, but there was no. objection off any kind, made to> *257the proof given. If there had been the plaintiff, might have met such objection by producing such documentary evidence. The defendants should not be permitted to claim now that these facts were not sufficiently established. ' Moreover,' it appears that there was a redemption from this tax sale, after the action was commencéd, by the payment' of tlie taxes and such other amount as was-necessary to effect such redemption. There can he no doubt but that such unpaid taxes, and the sale of the property therefor, constituted at least an incumbrance upon the property.
The title offered to the plaintiff was, therefore, not free from incumbrance, and the plaintiff could not be required to pay the balance of the purchase money and deliver his bond and mortgage and accept the deed until such incumbrance had been extinguished or removed. This incumbrance was distinctly pointed out at the time the contract was to be consummated, and the defendant Hernz instead of removing the same, or offering to do so, practically refused to remove it by telling ,the. plaintiff that if he wanted to get his rights, he should sue for them ; that that was’ all he could do.
Under these circumstances, we are unable to see how the plaintiff could be required to do anything himself to remove the incumbrance. ■ If any suggestion had been made by* the defendant Hernz. that the plaintiff should do this, and should use a part of the purchase money remaining unpaid for that purpose, it might then be claimed that he was under obligation to do so, or to furnish mo'ney sufficient to make the redemption, but no such condition of things was presented, and the plaintiff could only decline to carry out the contract because ’ of this incumbrance, or take the title subject to the incumbrance, pay the whole balance of the purchase price to Hernz, and remove the incumbrance at his own expense. He had, under these circumstances, a legal right to refuse to' consummate the contract, and was entitled to sue for and recover back the part of the purchase money already paid, and the expense of examining the title.
Our conclusion, therefore, is that the Case was properly decided by the trial court and that the judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham; JJ., concurred.
Judgment affirmed, with costs.