I dissent upon the ground that after the tax sale by the city treasurer, and the issuing and recording of the mayor’s certificate, the title and right of possession of the land became vested in the city and taxes thereon were' not thereafter legally assessable to the appellant. The assessment of land to a person who is ■ neither owner nor occupant is void. ( Whitney v. Thomas, 23 N. Y. 281.)
The charter of the city (Laws of 1880, chap. 14, § 104, as amd. by Laws of 1890, chap. 561) provides that whenever any lands shall have been sold for taxes or assessments and bid in by or struck off to the city, and notice to redeem "shall'have been served for more than thirty days, and such lands have hot been redeemed, the ■ mayor of the city shall execute a certificate of the'fact of such sale having been made áhd ¡the lands struck off to the city, and that;the same have hot been • redeemed, which certificate shall be acknowledged as deeds to be entitled to be recorded, and shall be recorded in the. Monroe county clerk’s office.
The section further provides: “ Such certificate, or the record thereof, or a copy of such record ‘duly authenticated, shall, in all courts and places, be prima facie evidence that the tax or assess- ■ ment was legally imposed, and of the regularity and legality of all proceedings prior to such sale and of such, sale, and that notice has •been duly given to redeem, and that such lands have not been redeemed. Upon the recording of such certificate, the said city or its assigns shall acquire an absolute title to such lands, in fee, with the right to immediate possession, and may enjoy and hold such *648lands free and clear from all claim or demand of any owner thereof, or any person having any lien thereon, or interest therein, but the equity of redemption in said lands struck off to the city shall only be barred as hereinafter provided.; ^ * * At any time after such certificate is. executed, the equity of redemption of all persons having any lien or interest in said lands may be foreclosed .by an action to be brought by" said city in'the Supreme Court, County Court of Monroe County, or the Municipal Court of said city, which are. hereby given jurisdiction over the same, and in which action the same proceedings shall be had,.as nearly as may be, as on the fore-. closure of real estate mortgages, and judgment of strict foreclosure, or- of foreclosure and sale, may be had therein, as the court may direct;”
A further provision "was inserted in the section by the amendment of 1890, at the place indicated by the asterisk, as follows: “ At any time after such certificate is executed and recorded, and the tax or assessment mentioned therein lias been.at any time thereafter paid, the treasurer of "said city may execute, acknowledge and deliver to the owner of such lands, so sold, a certificate to the effect that such tax or assessment has been paid, and upon the recording , of the same in the Monroe county clerk’s office, the said clerk shall discharge the former certificate of record in his office by a proper entry upon the page containing such record, the same as in cases of discharge of real estate mortgage's by him.” -
In Wells v. Johnston (171 N. Y. 324) the question arose as to whether the treasurer of Oneida county was authorized to sell "lands for unpaid taxes, although such taxes were assessed and levied thereon before the lands had been conveyed to the State by the Comptroller in pursuance of a salé thereof made under the Tax Law of 1855. (Laws of 1855, chap. 427.) By that act it'Was made the duty of the Comptroller to‘advertise and sell lands for returned unpaid taxes, and if not redeemed within' two years, to execute to the purchaser,- liis. heirs or assigns, a conveyance which would vest in the grantee an absolute estate in fee simple, subject to all the claims which the People of the State might have thereon for-taxes or Other liens or incumbrances. Where upon such sale no" person offered to bid, it was the duty of the Comptroller to bid in ■the lands for the State, and make a certiñcaté specifying the time *649when the People of the State would be entitled to a deed; such purchase was subject to the same right of redemption as purchases by individuals, and if the lands sold were not redeemed, the Comptroller executed a release to the People of the State, or their assignees, which had the same effect, and became absolute in the same time and on the performance of the like conditions, as in the case of sales and conveyances to individuals. It was held that the sale by the county treasurer for the non-payment of taxes was void. The ground of the decision was that, when the State took title to the lands the outstanding lien for taxes previously assessed merged in the deed, and it became the duty of the Comptroller to refund to the county of Oneida the money which it had paid to the State, if any, by. reason of such assessment, and to pay over to the county its proportion of the tax levied'upon the lands, but the county thereafter, or its treasurer, had no power to sell the lands to reimburse itself. In the opinion of the court it is said: “ It is contended on behalf of the plaintiff that these lands were assessed from year to year after the sale of 1877 down to and including the year 1880, and that by the special act for Oneida county of that year, to which we have referred,* the county treasurer was authorized to sell the lands for the non-payment of such taxes. We think that the lands were properly assessed for these years, for the title of the State did not become perfect until the deed was executed. The owner still liad the right to redeem during the period fixed by the statute, and during such period the premises were properly assessed so that the owner, upon redemption, could not escape taxation for the intervening years; but after the title of the State had become fully vested through the deed of the Comptroller the lands were no longer assessable and no sale could be made thereof except in accordance with the express provisions of the statute.” In that case the owner remained in possession, and had the use and enjoyment of his lands until the deed to the State was executed. Here upon the recording of the mayor’s certificate the city and its assigns acquired the absolute title in fee with the right of immediate possession and to enjoy and hold the lands free and clear of all claim or demand of the owner.
*650If taxes may thereafter be assessed-the result is-that the city audits assigns, by .virtue. of its. title and right of possession, takes the rents and profits which gó into the city treasury and Continue to assess taxes upon the property, and this may go -on indefinitely. It is optional with the city to exercise its right of foreclosure.' There is nothing which the former owner qould do to relieve himself from this anomalous situation of - being neither owner nor occupant and yet liable. to assessment, assuming that he is unable-to redeem. -Asís frequently the case, the assessment may be greater than the valué of the land assessed, of which this case is an illustration. The lands here assessed dor taxes and' local improvements are: insignificant in valúe. They consist of a small-strip of land ten feet wide and one hundred and eighteen feet long, and1 a triangular parcel -of less dimensions, the assessed -value of' whiph is. $50. The 'city has refrained from exercising its right of foreclosure, continuing in the' meantime to assess.'the property until the faxes and assessments have accumulated to an- amount- for which a judgment for- deficiency has been taken against the defendant for $833.66.
- It does not seem that a-fair construction of the statute will permit the city to take the rents and profits of the land, and also at the same time assess the. taxes thereon to the person who was the owner.
A more reasonable rule to adopt would be to require the city to proceed to an immediate- foreclosure of the remaining equity in the property, and thereby vest title in a purchaser, who would become liable to taxation.
The judgment for deficiency is erroneous and should be reversed.
. McLennan, P. J.., concurred.
' So much of the judgments as are -appealed from- affirmed, with costs. .
See Laws of 1880, chap. 91.— [Hep.