delivered the opinion of the Court.
The application of Article VII-A, Title 3, of the New York Tax Law to the mentally incompetent ward of appellant is challenged as being repugnant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
The statute, in § 165
et seq.,
provides for thе judicial foreclosure of tax liens on real property. The filing at the county clerk’s office of a list of taxes delinquent more than four years constitutes the filing of a notice of
Us pendens
and of a complaint, and commences an action against the property. Provision is made for notice by publication, by posting, and by mailing. The prescribed notice is to the effect that, unless the amount of unpaid tax liens, together with interest and penalties which are a lien against the proрerty, are paid within 7 weeks, or an answer interposed within 20 days thereafter, any person having the right to redeem or answer shall be forever foreclosed of all his right, title, and interest and equity of redemption in and to the delinquent property. Provisiоn is made for entry of a judgment of foreclosure awarding possession of the property to the tax district
Section 165-h (7) makes the deed presumptive evidence of the regularity of the proceedings. After two years this presumption becomes conclusive. The Section further provides that no action to set aside the deed may be maintained unless commenced and a lis pendens notiсe filed prior to the time the presumption becomes conclusive.
We are met at the outset with the contention of appel-lee and the State of New York,
amicus curiae,
that an action, as distinguished from the motion in the original proceeding hеre utilized, was the exclusive remedy in this cáse. The statute itself contains no suggestion that a new action is the exclusive remedy; it merely limits the time within which
an
action may be brought to set aside the deed. The Second Department of the Appellate Division, which decided this case, has recognized the existence of equitable power to entertain a motion to open a default in an
in rem
tax proceeding.
1
If that were not enough, appellee, on oral argument, conceded that in an action оf the sort contemplated by § 165-h (7), the appellant would have been able to attack the deed only on the ground of alleged irregularities in the assessment and foreclosure proceedings. Although the Attorney General of New York has supported a contrary position, it was
This proceeding started on May 8, 1952. The Town of Somers instituted it to foreclose many tax liens, one of which was its lien against the parcel of real рroperty owned by the incompetent. In compliance with the statute, notice was given to the incompetent taxpayer by mail, by posting a notice at the post office, and by publication in two local newspapers. No answеr having been filed by the incompetent, judgment of foreclosure was entered on September 8, 1952, and on October 24, 1952, a deed to her property was delivered to the town. Five days later, on October 29, 1952, Nora Brainard was certified by the County Court as a person of unsound mind, and one week later, November 6, 1952, she was committed to the Harlem Valley State Hospital for the insane. Thereafter, on February 13, 1953, appellant filed bond pursuant to an order appointing him Committee of the person and property of the incompetent.
Sometime prior to September 22,1953, the town offered the incompetent’s property for sale at a minimum bid price of $6,500. The unpaid taxes, interest, penalties, costs of foreclosure, аttorney’s fees, and maintenance charges on the property to September 22, 1953, aggregated $480. On that date, appellant’s attorney appeared before the Town Board and offered to repay the town the amount due оn the property in consideration
Appellant then filed a motion in the County Court of Westchester County, where the judgment of foreclosure had been entered, for an order tо show cause why the default should not be opened, the judgment vacated and the deed set aside, and permission granted “to answer or appear or otherwise move with respect to” the notice of foreclosure. He allegеd in a supporting affidavit that, although Nora Brainard’s incompetency was known to the town officials, no guardian was appointed until shortly after the foreclosure. Appellant contended that the notice given to Nora Brainard, although in compliance with the statute, was inadequate in the case of a known incompetent, and, therefore, that the statute as applied was repugnant to the Fourteenth Amendment.
The trial court, finding that the incompetent had not been deprived of her constitutional rights and that the statute is valid, denied the motion.' The Appellate Division of the Supreme Court, one judge dissenting, affirmed on the ground that the rights of the parties are fixed after expiration of the 7 weeks and 20 days provided for redemption or answer in § 165-a of the tax law.
At this stage of the proceedings we are bound, as were the courts below, to assume that the facts are as disclosed by the uncontroverted affidavits filed with appellant’s motion for an order to show cause. From these it appears that Nora Brainard was a long-time resident of the Town
Appellee argues that the Fourteenth Amendment does not require the State to take measures in giving notice to an incompetent beyond those deemed sufficient in the case of the ordinary taxpayer.
“An elementary and fundamental requirement of due process in any proceeding which is to be aсcorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . [W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Mullane v. Central Hanover Bank & Trust Co.,339 U. S. 306 , 314-315.
Notice to a persоn known to be an incompetent who is without the protection of a guardian does not measure up to this requirement. Assuming the truth of the uncon-
Reversed and remanded.
If the Court of Appeals saw the case as this Court sees it, reversal of its judgment, for the reasons given in the Court’s opinion, would be required. My difficulty arises from the fact that this is so clear that I am compelled to wonder whether the New York Court of Appeals whose judges again and again have evinced due regard for due process would, by a summary disрosition, sanction such a denial of due process. This Court has had frequent occasion to advert to the darkness which confronts us in trying to determine the meaning of state legislation and the scope of state remedies. This is particularly true when we are vouchsafed no light either from the Appellate Division or the Court of Appeals regarding the availability of subdivision 7 of § 165-h of the New York Tax Law in a situation, like the present, so obviously calling for relief as a matter of due procеss. The uncertainties of state law are not removed by conflicting views expressed at the bar of this Court by New York counsel.
“Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz., whether the taking by the Town of Somers, of the property here involved, was, on this record, a deprivation of due process and еqual protection of the laws under the Fourteenth Amendment. The Court of Appeals held that there was no denial of any constitutional right of the petitioner.”308 N. Y. 798 ,125 N. E. 2d 862 , as amended in308 N. Y. 941 ,127 N. E. 2d 90 .
To be sure, the Court of Appeals thus held “that there was no denial of any constitutionаl right of the petitioner.” But, as that court said, it was only answering the question that was before it, namely, whether “on this record” there was “a deprivation of due process.” The court may have reached the conclusion it did because, as a matter of state law, the only thing it deemed before it was a re-opening of the judgment of foreclosure under § 165-a, and that remedy was barred by the statute of limitations. Since the State has power to put a time limit on the re-opening of the judgment of foreclosure under that provision, such action is not a violation of the Fourteenth Amendment. The amended remittitur, thus read, does not preclude a setting aside of the foreclosure deed in a separate proceeding iri accordance with § 165-h (7), on a recital of circumstances such as those which lead this Court to find a violation of due process.
If this hypothesis was in fact the basis of the judgment of the Court of Appeals, I assume it to be within the power of that court, when the сase is returned, to allow full scope to state remedies still open to the petitioner.
Notes
Nelson
v.
City of New York,
Thereafter the town rescheduled the sale of the property at a minimum bid price of $3,500.