Dikeman v. Dikeman

11 Paige Ch. 484, 1845 N.Y. LEXIS 261

• Court: New York Court of Chancery
• Decided: March 4, 1845
• Status: Published

Opinion

The Chancellor.

The bill in this case is not properly framed to entitle the complainant to an order extending the time to redeem, under the act of the 26th of May, 1841, to authorize the sale of real estate in certain cases to pay assessments, and for other purposes. [Laws of 1841, p. 325.) The object of that statute was not to throw upon the court of chancery the burthen of deciding all questions which might arise in relation to the validity of assessments and sales of property in, cities and villages, when the ’property assessed is owned by several persons as tenants in common, or by persons having different estates or interests therein: but it was to enable a party who was not the absolute owner in fee of the whole premises assessed, to compel other persons, having estates or insterests thérein, to contribute their rateable proportions of assessments which fiad been properly and legally made upon the premises. To entitle the complainant to file a bill, under this act,.to compel the other parties interested in the premises to contribute, the bill must distinctly allege that an assessment has been imposed upon the premises, which is legal and valid, under which the premises have been sold, or are liable to be sold. For if the bill leaves it doubtful whether the assessment is legal and valid, the other parties interested in the property may demur to the bill; or, they may raise the objection in their answer, so as to have the bill dismissed at the hearing, on that ground. And to entitle the complainant to an order to extend the time to redeem, whereby the purchaser may be kept out of the possession of the property for an indefinite period, without any compensation for the use. of the premises in the meantime, the bill should not only show, that a valid assessment has been made, and that a valid sale has taken place, but it should also be verified by oath. The bill, for that purpose, should also contain a distinct offer, that if the suit should be discontinued, or the bill should be dismissed at the hearing, the complainant would either redeem the premises, and pay the interest upon what was due at the time of the expiration of the original period for redemption, or, if the premises were not redeemed, that he would pay interest on the redemption money during the continuance of such extension. And where the complainant is irresponsible, such an order should not be made, without requiring security that the offer contained in the bill shall be complied with.

In no other way is it possible to protect the rights of the purchaser against bills which may be filed by collusion, between persons having distinct interests in thé premises, for the mere purpose of depriving the purchaser of the benefit of his purchase for an indefinite period, and without paying interest on the amount equitably due to redeem the premises in the meantime. For after the suit has been protracted for years, the complainant may dismiss the bill, as a matter of course, at any time before decree. And even where there is a distinct allegation, in the bill, that the premises were legally and properly assessed, if that allegation is put in issue, by the other defendants who are interested in the premises, the bill will be dismissed at the hearing, of course, in case the complainant neglects to produce the necessary proof to sustain such allegation. Nor can the purchaser, in such a case, litigate the question as to the validity of the assessment, with the complainant and the co-defendants;'so as to deprive them of the power of raising the same questions again, in a court of law, in an ejectment suit to recover the possession of the property.

It ig evident, from the frame of the bill in this case, that the complainant did not intend to charge, even upon her belief, that either of the assessments stated in the bill were properly or legally made, so as. to render them valid and to entitle Storms to the, term in the. premises, under his purchase, in case she or the other defendants should not redeem. Nor did she intend, or expect, to introduce proof to establish the validity of the assessments and of the sale to Storms, so as to entitle her to a decree for, contribution against her co-trustee, and her infant children, and others who would be interested in the redemption of the premises, in case the sale was valid. For throughout the bill she is, very careful to exclude the conclusion that she intends, to admit that either the assessments or the sale were made in such a manner, as to render them legal and valid. This bill must therefore have been filed for the mere purpose of obtaining an indefinite extension of the time to redeem, and without giving. to the.purchaser any equivalent for the loss of interest upon the redemption money, in the meantime. Or, it may have been, filed in. good faith, upon the mistaken supposition that it was, not necessary to. show, that the assessments upon the premises, were legal, or even prima facie legal; but that the question as,to the validity of the assessments; and of the sale, could be litigated in this suit, between the purchaser on the one side, and • herself and; the other owners of the premises on the other. This-. last.supposition,is.the most probable, from the fact that she has made the,corporation of the city of New-York a party defendant in the suit. An order extending the time to redeem could not. legally, be granted upon such a bill; even if; Storms had become the. purchaser of. the premises, subsequent to the passage of the act before referred to, and subsequent to the.act of the 26th of May, 1,8,41. (Laws of 1841, p. 211.) The order in question shoqld, therefore be reversed, even,if it was competent, for the legislature, to divest, the purchaser of rights which he had previously. acquired, under the laws of. the state, which .were in force when he, purchased thp. premises and paid his money therefor. But. the, .constitutional .question, as to the power, of the legislature, to extend the time for redemption, is also, raised upon this.appeal. And as it has been fully discussed, particularly in reference to the provision in the act of the 26th of May, 1841, under which this order was made, I shall proceed to consider it.

By the act of April, 1816, for the more effectual collection of taxes and assessments in the city of New-York, (Laws of 1816, p. 113,) where lands are sold for taxes or assessments, they are to be sold for a term of years, to the person who will advance the amount due, including the interest and .costs, for the shortest term. And the corporation is to give to the purchaser a certificate, describing the lands sold, and specifying the term of years for which the same have been sold, the sum paid therefor, and the time when the purchaser will be entitled to a lease of the lands thus sold. The statute then provides that if the owners of the land, or some one in their behalf, do not redeem such land within the two years from the date of the certificate, by paying the sum mentioned therein, with interest at the rate of twenty per cent per annum, the corporation shall, at the expiration of the two years, give to the purchaser a lease, for the term for which the lands were sold; which lease shall be conclusive evidence of the regularity of the sale. And by virtue of such lease, and of that act, the legislature declared that the purchaser should lawfully hold and enjoy the lands in such lease mentioned, for his own use, against the owners and all claiming under them, until the purchaser’s term therein should be fully complete and ended. These provisions of the act of April, 1816, remained in full force at the time of the appellant’s purchase, in October, 1840, except as to the rate of interest and the rights of mortgagees, and as to the payment of certain expenses subsequent to the sale. (See Laws of 1840, p. 273, §§ 5, 6: Id. p. 336.) When Storms became the purchaser of the premises in question, therefore, if these assessments were valid and the sale regular, his contract with the corporation, under the sanction of a law of the state, entitled him to an absolute lease of the premises at the end of the two years, and to the possession and use of the same, for the full term mentioned in his certificate of sale; in case the owners of the land, or some person for them, should not redeem the same, within the two years, as required by the laws then in force. The question then, which arises under the act of the 25th of May, 1841, is whether it was competent for the legislature to extend the time for redemption, for six months at least, beyond the two years; and thus to deprive the purchaser of the possession and use of the premises for a part of the term which he had purchased therein, without any compensation whatever. It is true the fifth section of the act requires an additional per centage to be paid, in case the owners shall elect to redeem within six months after the service of notice upon the occupant. But such owners are under no obligation to redeem. And there is nothing in the act requiring them to pay the purchaser the rent of the land, or any interest upon the purchase money, during the time he is kept out of possession, where they neglqct or refuse to redeem the premises within the six months. It is perfectly evident, therefore, that the effect of such a law upon the rights of a prior purchaser, who had only purchased a term of one year in the land, would be to deprive him of the half of the value of his purchase, in case the land should not be redeemed at the end of six months; even if the notice required by the subsequent law was served upon the occupant on the same day that the lease was executed. And the value of his purchase would be diminished, to a greater'or less extent, where his purchase was for a shorter or a longer term, in the premises.

Again; by the act of the 26th of May, 1841, under the provisions of which act this order was made, still greater injustice is done to the purchaser, who had contracted. in reference to the former law, which was in force when the sale to him was made. For, in the act of the 26th of May, 1841, no provision whatever is made to compensate the purchaser for his loss of the interest upon the‘redemption money, if the owners elect to redeem at the end of six months after the final decree in the suit; or for the loss of a portion of his term, in case they shall neglect to redeem at the expiration of the time specified in the order of the court. In this case, it is true, the premises were purchased for a very long term. And the shortening of that term, merely for the five or six years which may be necessary to carry a litigated chancery, suit through all the courts, to settle the rights of the respective owners, and' their proportions of the redemption money properly chargeable upon the contingent interests of some of them, under trusts of doubtful validity, may perhaps be considered of but little consequence. But in deciding upon the constitutionality of a law which is general, and which units operation may totally destroy the vested rights of other persons, 1 am not at liberty to declare the law to be constitutional, merely because the injury to one of the parties in the particular case under consideration is comparatively small. For if the law is constitutional in reference to this case, it is also constitutional in reference to the purchase of a term of two or three years only; where the purchaser would probably lose the entire benefit of his purchase, and the whole amount paid for the term, by the éxpiration of such term before the termination of the chancery suit. But even in the case under consideration, if the complainant and the other owners should elect to redeem the premises át the termination of this suit, the purchaser will lose the interest upon more than $8000, for several years; in case this extension of the time of redemption can be sustained. And if they should not redeem, he would of course lose the use of the land, and the privilege of selling it, during the whole period of the pendency of this suit.

The case would have been entirely different, if the appellant had become the purchaser of the lands in question, and had advanced his money upon such purchase, after the passage of the law requiring personal notice to be served upon the occupant, and giving six months thereafter to redeem; and after the passage of this law, authorizing the court of chancery to extend the time to redeem in certain cases. For then the legal presumption would have been that the purchaser intended to assume the burthen of serving a notice upon the occupant, and, knew that the time of redemption would not expire until six months after the service of such notice; and that he also assumed the risk of the extension of the time to redeem, in a case like the present, if this court, in the exercise of a sound discretion, should grant such an extension. But as no such presumption can arise in a case, where by the terms of the act under which the purchase was made, and upon the faith of which the purchaser advanced his money-, such purchaser was entitled to an .irredeemable term in the lands, and to the immediate possession thereof, as soon as he obtained his lease from the corporation, at the end of the two years-.

The. act of 1819, which first required a notice to be served upon the occupant of lands sold by the comptroller for taxes, and allowing such occupant six months thereafter to redeem, was in terms restricted to sales to be made after the passage of the act. (See Laws of 1819, p. 254.) A similar restriction was contained in the first section of the act of April, 1830, (1 R. S. 2d ed. 401, § 90,) which required the purchaser to serve such notice, upon the occupant, within one year. And the second section of the act of the 25th of May, 1841, as well as the provision. in the act of the 26th of the same month, authorizing an extension of the time of redemption by the order of this court, would undoubtedly have been confined to future sales also, if the attention of the lawmakers had been directed to the constitutional objection to those provisions, in reference to purchasers who. had advanced their money upon the faith of the laws, of the state, which were in force when their purchases were made. The language of the act of the 26th of May, 1841, howover, is such in its terms as to embrace sales which had already been made, as well as those which might be made thereafter. It therefore becomes the duty of this court to declare it inoperative and void, as against the appellant, and in reference to the purchase which he had previously made.

The order appealed from must be reversed. But the questions arising in this case, being new and important, I shall not charge the respondent wilth costs upon this appeal.

Decree accordingly.