COURT OF APPEALS.

#### Antoinette Brown agt. Charles T. Goodwin *et al.*

*Action to remove cloud upon title—Deed hy United States internal revenue collector—recitals in, only prima facie evidence of facts hy law authorized to he stated*— *Proof aliunde*— *Appeal.*

In an equitable *action to*remove a cloud up *on*title to lands, the title being based upon a deed from a United States collector of internal revenue, such deed is *prima facie*evidence only of those facts which, by law, are authorized or required to be stated in it.

The recitals in a conveyance have no more force against third parties, not parties to it, than is given to them by positive law.

Where the recitals in the deed were simply those required by section 3198 of the United States Revised Statutes, to be set forth in the certificate of purchasec to be given to the purchaser by the officer making the seizure and sale, *i. e.,*the real estate purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor:

*Held,*that such deed is *prima facie*evidence of *no*other facts, save those which are needed by the laws of this state on a conveyance by a sheriff on a sale of real estate on execution.

Before a United States collector has any authority to sell lands for taxes, the United States must acquire a lien on the property.in question. There is no lien until notice and demand of the tax, and neglect and refusal to pay; and no right to seize and sell real estate until there is failure to find personal estate. There can be no legal sale without these prerequisites exist previous to such sale, and the existence of them must be proved. They cannot be proven, *prima fació,*by the recitals of the deed, but may be by evidence *aliunde.*

On the dismissal of a complaint, after trial at special term, an affirmative finding of fact in favor of the defendant will not be sustained on appeal.

*Decided*December, 1878.

This action was brought to remove a cloud on the title of the plaintiff, consisting of two *lis pendens*filed by the defend*302ants, in Onondaga county, New York, where the premises were sold by Mr. Smith, a United States internal revenue collector, and under his deed the plaintiff claimed title.

The premises were sold on a tax assessed against one Gertrude W. Sharkey, as a member of the firm of Alexander Eoss *& Go.;*and the defendants claimed, under a judgment against one Marquis D. L. Sharkey, the husband, claimed to be a member of the same firm by the appellant. The judgment was entered on certain findings of Mr. justice Daniels, on the equity side of the court, on the 16th day of December, 1872.

The equitable right of the defendants, in the interest of Marquis’ D. L. Sharkey, in the premises described in the complaint, were those of a judgment creditor of Marquis D. L. Sharkey, and were derived from advances made by him to his wife, Gertrude W. Sharkey, and invested in the firm of A. Eoss *&*Co., delinquent tax-payers.

Her interest in the firm was derived from moneys of Marquis D. L. Sharkey, and he succeeded to it, and his creditors, also, by the decree. If at the time of the levy under the warrant her interest in the premises was seized, then, subsequently, when the *Us pendens*were filed, she had no interest in the premises for the defendants to seize or acquire, and the plaintiff’s deed must be held good as against the defendants, if it is sufficient in law.

Judge Van Yorst held, at special term, that the recitals in the deed were not sufficient, and did not convey the right, title and interest of Mrs. Sharkey in the premises, so as to cut off her husband’s interest in the same, from the defendants’ lieu on this judgment.

This the plaintiff claims is an erroneous view of the law, and appeals from the judgment dismissing the complaint.

*T. C. Cronin,*for appellant.

*JR. 8. JRcmsom,*for respondents.

*303Folger, J.

This is a suit in equity, brought by the plaintiff to remove a cloud upon her title to lands. The alleged cloud consists of two *Us pendens*filed by the testator of the defendants, and a judgment recovered by the defendants. The *Us pendms*assert a right in the lands hostile or paramount to the right of the plaintiff alleged by her and the judgment determines that the defendants as executors have the right asserted in the *Us pendens.*Doubtless they are a cloud upon her title, if she has the title which she claims.

This appeal can be determined, however, by a consideration of the single question, whether the plaintiff upon the trial of this action made out a title in herself to the lands.

The plaintiff’s title hangs upon a deed from the United States collector of internal revenue, in and for the twenty-third collection district of the state of Dew York, and to be more definite than that, it hangs upon this, whether the recitals in that deed are sufficient, *prima, faeie,*to make out a right in him to sell and convey.

The recitals in a conveyance have no more force against third parties, not parties to it, than is given to them, by positive law. We must look for positive law in this case in the statutes of the United States for the collection of internal revenues; section 3198 of the United States Devised Statutes, which is treated by the counsel for the parties as a correct statement of the statute law affecting the transaction, provides that upon the sale of real estate, and the payment of the purchase-money, the officer , making the seizure, and sale, shall give to the purchaser a certificate of purchase which shall set forth the real estate purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor. This is all that, by the law, is required to be set forth in that certificate. The same section further provides that, if the real estate be not redeemed according 'to law, the officer shall execute to the purchaser, in his surrender of that certificate, a deed of the real estate, reciting the facts set forth in the certificate, and in accordance with the laws of the state in which the real *304estate is situated, upon the subject of the sales of real estate under execution. Section 3199 provides that the deed thus given shall be *prima, fade*evidence of the facts therein stated ; and that, if the proceedings of the officer as set forth have been substantially in accordance with law, the deed shall operate as a conveyance of all the right of the party delinquent in the real estate at the time the lien of the United States attached thereto. This provision, that the deed shall be *prima fade*evidence of the facts stated in it, makes such evidence only those facts which, by law, are authorized or required to be stated in it *(Marsh*agt. *City of Brooklyn,*59 *N.*Y., 280). Hence the deed in this case is *prima fade*evidence: First. That the particular real estate described in it was purchased at the official sale. Second. That it was sold for the taxes, among others, of Gertrude W. Sharkey. Third. That Henry J. Hubbard, the grantor of the plaintiff, was the purchaser. Fourth. That he paid therefor the price of $5,500. It is *prima fade*evidence of no other facts, save those which are needed by the laws of this state on a conveyance by a sheriff on a sale of real estate on execution. Those are, that the premises have not been redeemed according to law, and, perhaps, other matters which do not affect the question before us here (2 *R. S., p.*373, *sec.*62). It is seen, at once, that the matters which are made *prima*fade. evidence do not show how the United States got a right to sell these lands. It is provided, by statute, that the collectors of internal revenue shall inquire after persons liable to pay a tax *(U. S. R. S., sec.*3172); returns are to be made or compelled *(id., secs.*3173-81); the commissioner of internal revenue is to make assessments and certify them to the proper collector *(id., sec. 3182);*the collector shall give ten days’ notice to pay the tax, stating the amount and demanding payment *(id., sec.*3184). It is not until there has been neglect or refusal to pay the tax, after that notice and demand, that the amount of it becomes a lien in favor of the United States *(id., sec.*3186); not until then can the collector distrain and *305sell *(id., secs.*3187, 3188); nor can real estate be seized and sold for a tax until there is a failure to find goods, chattels or effects sufficient to satisfy the tax *(id., sec.*3196); there must also be given to the party a notice of the property to be sold, and the time and place of sale *(id., sec.*3197).

Thus, it is seen, that there is no lien until notice and demand of the tax, and neglect or refusal to pay; and no right to seize and sell real estate until there is a failure to find personal estate. These things are prerequisites to the right to seize and sell lands, or an interest in them ; there can be no legal sale without they exist theretofore; but the authorized recitals in the deeds in hand did not show these things, nor Avas there any proof of them *ali/unde.*Hoav, then, did the plaintiff make out an authority in the United States collector to sell these lands to her grantor ? She did not make it out. The cases cited in the opinion delivered at special term are sufficient to sustain this view *(Williams*agt. *Peyton,*4 *Wheaton,*77; *Matan*agt. Davis, 4 *McLean,*211; *Jackson*agt. *Shepherd,*7 *Cow.,*88).

*Coleman*agt. *Shattuck*(62 *N. Y.,*348), relied upon by appellant, is not in conflict with these views. By the law under which that case was decided, the comptroller’s deed was made “ presumptive evidence that the sale, and all proceedings prior thereto, including the assessment of the land,” &c., were regular and in accordance with law — quite a different and more extensive provision than that here.

It is true that section 3199, above cited, provides that the deed shall be considered and operate as a conveyance of all the right, title and interest which the party delinquent had in and to the real estate at the time the. lien of the United States attached thereto; it only so operates, however, if the proceedings of the officer, as set forth in the deed, have been substantially in accordance with' law. The word “ if ” implies that all the prerequisites must exist to make his proceedings as set forth, that is, those authorized to be set forth according to law. Before a tribunal can know that they did exist, *306the existence of them must be proved to it. The assessment of the tax, the notice and demand of it, the failure to find personal estate to satisfy it, and the notice of seizure of real estate, are needful prerequisites to be shown to make the sale and certificate of sale, and giving of the deed, in accordance with law. They may not, as we have séen, be proven *prima facie*by the recitals of the deed, and there was no other evidence of them *(See Hilton*agt. *Bender,*69 *N. Y., 75).*

*We*do not think it needful to examine any other grounds claimed by the respondents why the plaintiff cannot maintain her action. If is enough, for this appeal, that we hold that the recitals in the deed do not make the proof she need to adduce, nor is it needful to consider the points made by the appellant as to the inequitable character of the defendants’ relation to these premises.

Until the plaintiff shows a right to the lands, she shows no right to question any other person’s claim to it; nor does the claim that the *lis pendens*filed by the defendants failed to set forth the defect now found in the appellant’s proof avail her. It does not appear that she has been misled by relying upon its statements, or its lack of fullness of statement; and if this were not so we should hesitate to say that a party is required, in a notice of *Us pendens,*to anticipate and state all the defects which may appear in the proof of another claimant of the land on the trial of any action which the latter may bring. Kindred to this is the claim that the defendants are estopped from objecting now to the failure in her proof, because, at the collector’s sale, they did not give notice that he could give no title by his sale, for that no government lien had attached for want of a notice and demand of the tax and the like. The elements of an estoppel are not here. It does not appear that the defendants had that knowledge then, or that the plaintiff’s grantor, Hubbard, bought and paid for the land, relying upon the absence of those particulars from the notice of the defendants, or that he was induced thereby to make his bid and fulfill it.

*307As the case comes to us it is one of a failure of proof to establish an important part of the plaintiffs case. The defendants at the trial took advantage of that failure. It does not appear that there did not exist just what it is needful for the plaintiff to show did exist, nor but that it may be possible for proof to be made thereof at another time. How, then, can we hold that the defendants were derelict in not, at some time prior to the trial, giving notice that such defects existed ? Bor was any such position taken by the appellant at the trial.

We see no principle on which we can hold with this appellant upon this ground.

The judgment appealed from should be affirmed.

All concur; Andeews, J., taking no part.