Opinion
Argued February 19, 1879
Decided September 16, 1879
John J. Townsend, for appellant. Wm. O. Whitney, for respondent.
We have carefully examined this case, and entertain no doubt that the tax in question was legally imposed, and that for that reason the judgment ought to be affirmed. But the affirmance of the judgment does not depend upon the validity of the tax, and hence an elaborate statement of our reasons for holding the validity would be a waste of time, as the judgment will have to be affirmed if every fact alleged and all the learned argument made by the plaintiff be conceded.
The action is to set aside and cancel the tax, upon the ground that it is illegal and a cloud upon plaintiff's title to his lands. It is claimed to be illegal solely upon the ground that the law, in pursuance of which it was imposed, is unconstitutional and therefore void. No other reason is alleged or claimed for the maintenance of the action.
It is a general rule that the owner of real estate must wait until his title is assailed, or his possession is disturbed, or his rights are actually interfered with, before he can invoke the protection of the courts. The law generally concerns itself only with actual wrongs, and not with such as are merely potential. But there are some exceptions to this rule. Courts will, under certain circumstances entertain actions to remove a cloud upon title to land to prevent future harm. It is not sufficient that there is a formal title or lien creating the cloud. Where the cloud is claimed to be created by a lien, the lien must be apparently valid, and must exist under such circumstances that it may in the future embarrass or injure the owner or endanger his title. But it has been decided many times in this State that where the lien is invalid upon its face, or where the invalidity will necessarily appear in any proceeding taken to enforce title under it, then the jurisdiction of a court of equity cannot be invoked to set it aside. Then the owner must wait until his title is actually assailed under the lien, and his defense will always be at hand: ( Scott v. Onderdonk, 14 N.Y., 9; Heywood v. City of Buffalo, 14 id., 534; Ward v. Dewey, 16 id., 519; Hatch v. City of Buffalo, 38 id., 276; Newell v. Wheeler, 48 id., 486; Marsh v. City of Brooklyn, 59 id., 280.)
If this tax be invalid upon the ground claimed, its invalidity will always appear. The recorded proceedings and the statutes will show that it was imposed under the law claimed to be unconstitutional. No valid tax can be imposed under an unconstitutional law; and that such a tax could not constitute such a cloud upon title as to call for the interference of a court of equity, was the precise question decided in Stuart v. Palmer, ( 74 N.Y., 183).
Therefore, whether this tax is legal or illegal, for the reason stated the judgment must be affirmed.
All concur, except ANDREWS, J., absent.
Judgment affirmed.