Opinion
Argued April 9, 1880
Decided June 1, 1880
C.P. Hoffman for appellant. Samuel J. Crooks for respondents.
This action was brought to vacate an assessment for the construction of a road in the county of Rockland, which was laid out in pursuance of chapter 670 of the Laws of 1871, and to restrain the enforcement of such assessment. A demurrer was interposed, which was sustained at Special Term, a judgment entered thereon, which was affirmed at General Term, and an appeal taken to this court.
The rule applicable to actions to remove a cloud upon title has been the subject of frequent consideration in this court, and it is settled that to authorize the interposition of the court to remove the lien of an assessment as a cloud upon title, it must appear that the record or proceedings are not void upon their face, and that the claimant under it would not, by the proof which he would be obliged to produce in event of an attempt to enforce his claim, develop the defects rendering it invalid. ( Guest v The City of Brooklyn, 69 N.Y. 506) The proceedings in the case now considered were conducted under the provisions of chapter 670 of the Laws of 1871; and unless they were had in pursuance of its requirements, would be null and void. If a suit was instituted to enforce the assessment or a title acquired by virtue thereof, the defects or irregularities which would render them void would necessarily appear by the proof which would be required, and hence no case would be made out showing their validity. The party seeking the benefit of such a proceeding must establish that the statute has been strictly followed; and unless he does so he would fail to make out a case. This rule would be applicable to this case unless there is something contained in the provisions of the act in question which obviates the difficulty. The twelfth section of the act authorizes a sale of the lands assessed, "in the same manner as the comptroller of the State is authorized to sell lands for the non-payment of assessments for taxes," with certain exceptions not necessary to be stated, and confers power upon the commissioners "to convey said lands, and to do every act and thing which the comptroller is authorized by law to do on sales for non-payment of taxes." The act contains no provision which renders the conveyance made by the commissioners of any force as testimony, and hence it would seem that the proceedings with the conveyance, and not the conveyance alone, must constitute the evidence of the title acquired by virtue of the sale. By chapter 427, section 65 of the act of 1855, as amended by chapter 209, Laws of 1860, all conveyances of the comptroller are made presumptive evidence of regularity. We think that this is an independent provision and not incidental to any act which the comptroller is empowered to perform and was not adopted by the act of 1871. A conveyance, therefore, would have no such effect under the act of 1871, and unless the statutes have been followed, would be of no avail. It follows that as no provision in the act of 1871, making the assessment when completed prima facie evidence, of itself, of its regularity, and there is no allegation in the complaint that there is any record which makes it prima facie or presumptive evidence of any thing, an action to vacate the assessment, and remove it as a cloud upon title, cannot be maintained. ( Sanders v. The Village of Yonkers, 63 N.Y. 489, and cases cited.)
It is claimed that a notice was required to be given to the parties, according to the provisions of the Highway Act. If this was necessary, and the notice was not served, or service thereof waived, its omission would be made apparent upon the production of the proceedings.
In regard to the alleged appointment of a person who was not a freeholder a commissioner, which would not appear upon the face of the proceedings, it is a sufficient answer to say that the court, by the appointment of the commissioner, adjudged that he was such freeholder; and this is final unless corrected by a direct proceeding for that purpose. ( Van Steenburgh v. Bigelow, 3 Wend. 42.) It is not a jurisdictional defect on the face of the proceedings.
While the objections considered are not available, the allegations of fraudulent acts and practices contained in the complaint present a more serious question. It is averred that one set of commissioners of awards had been appointed and made out their report, and performed and discharged their duties, and afterward that the commissioners failed to act upon the awards made, and unlawfully and fraudulently concealed, suppressed and ignored said report, and afterward unlawfully and without notice procured other persons to be appointed, and that the record of the proceedings or the report do not show that the commissioners suppressed and ignored the same; and it is also averred that such record falsely and fraudulently shows, and that it falsely and fraudulently appears, that all the proceedings of the last-named commissioners of awards were regular, as well as the proceedings of the commissioners to lay out said avenue. The fraudulent acts charged are not denied, as the interposition of a demurrer concedes that every thing contained in the pleadings is true.
Fraud vitiates all contracts and fraudulent proceedings; and equity, as a general rule, will relieve against all deeds, writings and assurances, also against judgments and decrees which have been obtained by fraud and imposition. (Willard's Eq. Jur. 160.) In cases where fraud is not penal, equity has concurrent jurisdiction with courts of law, as a general rule. (Id. 145.)
These allegations do not cover the entire proceedings; but as they do charge that the commissioners failed to act on the awards made, and a fraudulent and unlawful suppression of the report, and that they fraudulently procured the appointment of other commissioners of awards, and that the record falsely and fraudulently shows otherwise. We think that they made out a cause of action in this respect, and the complaint should be upheld upon this ground. The Validating Act (chap. 395, S.L. of 1874) confirms said assessment, and declares the same "lawful and in all respects regular, and to be enforced, notwithstanding any irregularity in form and substance in the making thereof." This does not apply to or cover fraud, and cannot cure defects of this character. On the ground last stated the judgment must be reversed and the demurrer overruled, with leave to the defendants to withdraw the demurrer and to answer on the usual terms.
All concur.
Judgment accordingly.