Simms v. Voght — 11 Abb. N. Cas. 48

Majority

p. 48

SIMMS v. VOGHT.

Brooklyn City Court; General Term,

February, 1882.

Headnote

Ejectment.—Judicial Sale.—Teems “ Subject to Taxes ahd Assessments.”

A purchaser at a judicial sale does not, by taking subject to taxes and assessments in the usual way, preclude himself from the right to leave unpaid, illegal taxes and assessments, and to impeach a tax lease subsequently made, on a sale for their non-payment.^[1]

Henry Simms, claiming title to premises in the city oí Brooklyn under foreclosure of a mortgage by action, brought ejectment against George Voght and others, who were in possession as tenants, under one Vogeler, who held a tax lease from the city authorities, given on an alleged sale of the premises for non-payment of taxes and water rates. On grounds not material to notice here, this fax lease was invalid for defects in the proceedings resulting in the imposition of the taxes; but plaintiff’s purchase at the foreclosure sale was made subsequent to the imposition of the taxes, &c.,

p. 49

and by the judgment and terms of sale under which he bought, he purchased subject to unpaid taxes and water rates.

The court, Reynolds, J., found for plaintiff.

Defendant appealed.

J. H. Clayton, for defendants, appellants.

D. P. Barnard, for plaintiff, respondent.

On the trial, the plaintiff’s title to the premises sufficiently appeared to cast upon the defendants the burden of showing that they held under a better or sufficient title. They held possession as tenants under one E. Yogeler, and his rights depended upon the validity of a lease, given on a sale for non-payment of water rates and taxes.

We are of opinion that such ruling was correct.

It is claimed on behalf of the defendant that the sale, under the judgment of foreclosure, was made subject to the taxes and water rates, as the purchaser did not avail himself of the right, according to the terms of the judgment, to have such liens satisfied out of the purchase money. The terms of the judgment giving the right to the purchaser to have a part of the price he pays thus applied, must be taken to relate to valid liens, not to taxes and assessments illegally laid.

On the whole, we think that no such objections can prevail against the title acquired by this plaintiff. He is at liberty to contest those claims.

The judgment should be affirmed, with costs.

MoCve, J., concurred.