Van Doren and others vs. The Mayor &c. of New-York; Striker vs. The Same; Pearson vs. The Same, 9 Paige Ch. 388

The Chancellor. The objection to the assessments, that the corporation, as at present organized under the act of April 1830, has no power to open streets, confirm assessments, &c. was decided against the complainant in the case of Wiggin v. The Mayor, Aldermen and Commonalty of New-York, in March last, (ante, p. 17.) And Í have no reason to change the opinion then expressed, although that case was not in a situation to enable the complainant to review the decision, upon that point, by appeal; as several technical objections existed to his right to the premises as stated in the bill.

But if this objection to the right of the common council was well taken, it would only show that this court had no jurisdiction in these cases. , For a valid legal objection, appearing upon the face of the proceedings through which the adverse party can alone claim any right to the complainants’ land, is not in law such a cloud upon the complainants’ title as can authorize a court of equity to set aside or stay such proceedings. That can never be considered a legal cloud which cannot for a moment obstruct the unaided rays of legal science when they are brought to bear upon the supposed obscurity.

But where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, as where the defendant has procured and put upon record a deed obtained from the complainant by fraud, or upon a usurious consideration, which requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere and set it aside as a cloud upon the real title to the land. (Simpson v.

Lord Howden, 3 My. & Craig’s Rep. 97.) It was the overlooking of that distinction, in the hurry of business, though I had recognized and acted upon it in other cases, which led me to affirm the decision of the vice chancellor in the case of Meserole v.

The Mayor & Common Council of Brooklyn, (8 Paige’s Rep. 199.) But my decision in that case was properly reversed by the „ court for the correction of errors, at its last term, in December, 1841 ; although the chief justice, who delivered the opinion of that court, concurred with me in the conclusion that the proceedings of the corporation of Brooklyn were illegal and void.

The same difficulty exists in relation to the objections that the ayes and noes were not called and published, upon the resolutions to make the improvements, and to confirm those assessments which were confirmed by the common council, and that the resolutions and ordinances were not duly signed by the mayor ; and to various other objections which are made to the legal validity of the assessments.

All these objections, if valid, appear upon the face of the proceedings through which the corporation must justify the enforcement of the tax by execution; and through which the purchasers at sales of the lands of these complainants, for the assessments, must necessarily make title. If the complainants are right, therefore, in supposing the proceedings void on all or any of these grounds, upon which I express no opinion, there is no cloud upon their titles.

And as their remedy at law is perfect, by an action of trespass if their property is seized upon a distress warrant for the assessments, and as they have a perfect defence at law to any suit brought against them by purchasers at the sales which have been made, or may hereafter be made, if the proceedings are void, this court has no jurisdiction to interfere for their relief.

On the other hand, if the proceedings are not void but merely voidable, or irregular, the remedy of the complainants clearly is not in this court, which has no superintending jurisdiction over the regularity of the proceedings of the corporation of New-York in these assessment cases. Indeed, as I understand the prevailing opinion in the court for the correction of errors in the case of Meserole v.

The Mayor and Common Council of Brooklyn, that court repudiated the idea that the court of chancery had any power or right to interfere in such cases, in relation to any supposed error or irregularity in the assessment, or in the proceedings of the corporation, or of the commissioners of estimate- and assessment. And this court will not again subject itself to the rebuke of that tribunal by interfering in any cases of this kind except where it is absolutely necessary for the preservation of the complainants’ rights. The demurrers are well taken ; and the complainants’ bills must be dismissed with costs.

And the injunctions, if any have been granted in these cases, must be dissolved.