Western v. Mayor of Brooklyn

Headnote

Where a municipal corporation are authorized by statute to sell lands for the non-paj-ment of a tax or assessment imposed for improvements of streets, and execute a certificate of sale to the purchaser under the'torporatc seal that ho will be entitled to a conveyance of the premises sold at the expiration of one year from the time of sale, an action of covenant does not lie against the eoporation for a refusal to execute such conveyance ; die remedy of the party is by action on the case, or by mandamus.

Demurrer to declaration. The plaintiff declared in an action of covenant on a certificate bearing date 16th August, 1836, executed by the then mayor and clerk of the city under the corporate seal of the city, whereby, after reciting an assessment for widening a portion of Fulton street in Brooklyn, and the sale of a certain city lot for the non-payment of the assessment, and the purchase thereof by the plaintiff for the term of twelve years, in consideration of the payment of the assessment with interest and expences, amounting in the whole to $37,30, which term was the lowest [ *335 ] term *of years for which any person would take the premises and pay the last mentioned sum, the common council, by virtue of the power vested in them by an act of the legislature entitled “ An, act to incorporate the city of Brooklyn,” passed April 8th, 1834, certified that the plaintiff had become such purchaser and paid said sum of money, and that at the expiration of one year from the time of such sale, which was on the 16th August, 1836, the plaintiff would be entitled to a conveyance of the premises (which were particularly set forth) for the period of twelve years. The plaintiff then avers that after the expiration of one year from the time of the sale, the defendants had refused to give him a conveyance of the premises purchased by him ; and so (although often requested so to do) the defendants had not kept their covenant.

The defendants, after craving oyer of the certificate, interposed a demurrer to the declaration, in which the plaintiff joined.