Opinion
Argued March 13, 1888
Decided April 10, 1888
Arthur L. Andrews for appellants.
Charles F. Tabor, attorney-general, for respondent.
The sole question is whether on a cancellation by the comptroller, pursuant to section 85 of chapter 427 of the Laws of 1855, of a sale of lands for taxes, made after a conveyance had been executed by the comptroller to the purchaser at the tax sale, and also after the purchaser had mortgaged and conveyed by warranty deed, the lands purchased on the sale, the right to the money paid by the purchaser on his purchase at the tax sale, which money, by section 85, the comptroller is directed to refund out of the state treasury to the "purchaser, his representatives, or assigns," is vested in the original purchaser, or in his grantees, or mortgagees. The question is not free from difficulty. In People ex rel. Millard v. Chapin (40 Hun, 386), the court of the second department sustained the right of the grantee under circumstances similar to those in the present case, and the court from which the present appeal is taken concurred in this view. The right to the moneys, in whomsoever vested, is given by and depends upon the statute. It does not accrue to any one until the sale is annulled by the comptroller. The money paid on the purchase at a tax sale is paid for the land, and the purchaser accepts, in the first instance, a certificate and afterwards, unless the land is redeemed, a deed from the comptroller, as a substitute for the money paid. The failure of title, as was said in People ex rel. Ostrander v. Chapin ( 105 N.Y. 309), is the essential ground upon which the state makes restitution. It would seem to comport with the equity of the statute that restitution should be made to the person who, at the time of the ascertainment of the invalidity of the tax sale and its cancellation, holds the land under the tax title, whether he be the original purchaser or his grantee. He is the person, presumptively, who is injured by having his title set aside as invalid, and the person who, it would seem, is equitably entitled to be paid what was received by the state for the title so annulled.
We think the case of People ex rel. Ostrander ( supra), substantially decides the question now presented. It was held in that case that the assignee of the certificate of sale, issued by the comptroller, was the person who, under the eighty-third section of the act of 1855, was entitled to recover the money paid by the purchaser to the state on an invalid tax sale in a case where no conveyance had been made by the comptroller. It certainly would not have placed the claimant, in that case, in a worse position if, before the discovery of the invalidity of the sale, the comptroller had, pursuant to the certificate, conveyed to him the land. The merger plainly would not have extinguished any right to the purchase-money which was vested in him as assignee of the certificate. We think the grantee of the original purchaser is an assignee within section 85 of the act of 1855. There are cases having some analogy to the present one which tend to support our conclusion. ( Jackson v. Bowen, 7 Cow. 13; Robinson v. Ryan, 25 N.Y. 320; Danforth v. Suydam, 4 id. 66.) When the conveyance is with warranty the sum received will diminish the grantor's liability on his covenant; and if the deed is a quit-claim merely, the right under the statute to have the money paid on the tax sale refunded is, we think, an interest connected with the tax title, and which follows it, unless excluded by the terms of the deed.
The order should be affirmed.
All concur, except DANFORTH, J., not voting.
Order affirmed