The opinion
Learned, P. J.,
(dissenting.) I am unable to see that a tax-sale made under chapter 86, Laws 1850, constituted a contract between the state and the purchaser. Previous to the sale, the state tax had been paid by the count)*, (section 42 of the act;) and the purchase money on the sale was paid to the county treasurer, (section 48.) The state had no interest whatever in the matter, and the complaint alleges that the money was paid to the county. If there were no such statutory provision as that contained in section 52, and if there were no special agreement on the part of the county to refund the purchase money, in case the title should be defective, then it seems to be set- *598 tied that the purchaser could not recover such purchase money, but that his purchase would be at his own risk. Brevoort v. City of Brooklyn, 89 N. Y. 128 , at page 135; Coffin v. City of Brooklyn, 116 N. Y. 159 , at page 166, 22 N. E. Rep. 227. Therefore the right to recover this money back is not a common-law right. No special agreement to refund is alleged in the complaint, and the only right to recover must be that which is given in the statute. Of course, in a certain general sense, the existing law may be said to enter into every contract. But in this case the contract was executed, viz., a contract of purchase and sale of property, and the price was paid. The liability to refund was not created by the agreement of the parties or by common law, but simply by the statute. The board of supervisors made no agreement to repay the money. Indeed, they were not parties to the contract of sale. The county treasurer sold the property, and the statute declared that, in a certain contingency, the county should refund to the purchaser the price paid. The alleged liability, therefore, was created by statute. In the case of Brevoort v. City of Brooklyn, ut supra, it was alleged in the complaint and admitted by the demurrer that the defendant had expressly agreed that the purchase money should be refunded in a certain contingency. No such fact exists here, and therefore there is no contract by this defendant to refund the money. The liability is simply imposed by the statute. Thus it was said in Chase v. Lord, 16 Hun, 369 , that the liability of a stockholder, in certain cases, for debts of the corporation, was a liability created by statute, within the meaning of Code Proc. § 91, subd. 2, (Code Civil Proc. § 382, subd. 2.) That case was reversed in 77 N. Y. 1 , but not on this point. The statute of limitations then barred this action after six years after the cause of action accrued. The plaintiff had not made any attempt to recover possession of the lands. Therefore there was no proof of inability by showing unsuccessful actions. The plaintiff relies, therefore, on showing that, as a matter of law, she (or the purchaser) could not have recovered possession, if actions of ejectment or other proceedings had been taken. To establish this question of law, she cites the case of Remsen v. Wheeler, 105 N. Y. 573 , 12 N. E. Rep. 564, (decided about June 7, 1887.) And the trial court holds, as a fact, that, as the result of that decision, these tax-sales were then declared void. But admitting that by force of that decision it is the law that these tax-sales are void, still it must be true that they were void from the beginning; and' the learned justice so holds. Such a decision of the court does not make that void which had previously been valid. It only declares the-invalidity which has always existed. Therefore it is true (assuming that the case above cited applies) that, from the beginning, the plaintiff (or purchaser) has, by reason of errors or irregularities in the assessment, etc., been unable to recover possession of the land, as was found by the learned justice. Now, it does not change the plaintiff’s rights to say that, before the decision above cited, perhaps the plaintiff might have obtained possession of the land; because perhaps the occupant would not have resisted an action of ejectment or similar proceeding. We do not know that the occupant of the land would now resist an action, if brought by the plaintiff. All we know is that.such occupant could successfully resist; and that it was true from the very first. If the plaintiff (or purchaser) had brought ejectment or similar proceeding as soon as the certificates of sale were issued, the occupant, if he had chosen, might have defeated the action or proceeding. Whether he would have chosen to do so we do not know. If he had’ not; chosen to defend, the plaintiff (or the purchaser) would have recovered possession, and then could not have maintained this action. The plaintiff now rests this action solely on the legal inability to recover, in case the occupant should defend. 'Such inability has existed since the certificates were issued, and therefore the right of action in this case has existed for the same time. In Parsons v. Rochester, 43 Hun, *599 258 , an action was brought to recover back money paid on an illegal assessment. It was held that the plaintiff had originally had a right of recovery, but that such right was barred after six years from the time of payment. The plaintiff urged that he had not such right of action until the decision in another case (Hassan v. Rochester, 67 N. Y. 528 ) had established the invalidity of the assessment. That is substantially the plaintiff’s view in this case. But the court said that that position was utterly fallacious; that the Hassan decision did not create the right of action. The same is decided in Van West v. Mayor, 24 Wkly. Dig. 50 , where it was held that an action to recover back money paid on a void assessment must be commenced in six years from the payment; and the court further said that the fact that the demand for the return of the money was not made until shortly before the action was commenced did not extend the time; that where the right to maintain an action depends on the making of a demand, the demand must be made and the action commenced within the time limited. Code Civil Proc. § 410; Dickinson v. Mayor, 92 N. Y. 584 . The case of White v. City of Brooklyn, 122 N. Y. 53 , 25 N. E. Rep. 243, does not apply. The certificate in that case, entitling the purchaser to a lease, was, “unless * * * any irregularity shall be discovered in the proceedings, * * * in which case said purchase and all sums paid * * * shall be repaid, * * * provided this certificate shall be surrendered.” The plaintiffs demanded leases in May, 1882, which were not given. They discovered the irregularity on December 18, 1882. They demanded repayment, and tendered the certificate in February, 1883, and commenced the action in that month. The right of action, therefore, by the terms of the certificate, arose upon discovery, and was conditioned on the return of the certificate, instead of the accepting a lease. But the court in the opinion remarked; “If the right of the plaintiff was dependent solely upon the fact that such irregularity existed, it is clear that the statute commenced running on the expiration of the time for redemption, [that is, the time within which the owner could redeem,] and operated as a bar at the end of six years thereafter, although the plaintiffs were ignorant of the existence of the fact which entitled them to remedy. ” Such is the present case. And see Allen v. Mille, 17 Wend. 202 . The right of the owners to redeem in the present case expired in two years; but, notwithstanding such right, the purchaser was at once entitled to possession under his certificate, even before the conveyance. Sections 48-50 of the act. It then became the duty of the defendants to repay the money whenever the purchaser was unable to obtain possession, and it is found by the court that such inability existed at once. They neglected to do so, and thereupon the right of action arose. If it be claimed that a demand was necessary in order to show-neglect, still the Code (section 410) provides that the time, under the statute of limitations, must be computed from the time when the right to make the demand is complete, except in certain cases not including this controversy; and this is a most reasonable provision. If a person has a right requiring a demand in order to enable him to maintain an action, it would be unjust; that, by neglecting or intentionally postponing the making of the demand, he should enlarge the time within which he could bring the action to any extent; he might choose. The contrary rule would allow this plaintiff to wait for 50 years, and then make a demand on the defendants, and therefore bring an action within six years thereafter. I think the judgment should be reversed.