124 N.Y.S. 693 | N.Y. Sup. Ct. | 1910
The plaintiff is a domestic corporation and it claims title and the right to possession of the premises in question, which consist of a tract of fifty acres of land in the town of Hamburg in the county of Erie, by virtue of a deed of a referee given on the foreclosure of a mortgage on the premises executed by William Clyde and wife to the Erie County Savings Bank on the 12th day of January, 1869.
It is elementary law that it is incumbent on the plaintiff in an action in ejectment to show title in himself, and that he cannot recover on account of the weakness of the defendant’s title. In the circumstances, the mortgagors presumptively had good title. It does not follow, however, that the purchaser on the foreclosure sale acquired it. The people of the State were not made parties to the action, hut those claiming under them were.
Section 76 of chapter 427 of the Laws of 1855, entitled “An act in relation to the collection of taxes on lands of nonresidents, and to provide for the sale of such lands for unpaid taxes,” being the act under which the tax sale was made, provides that the sale of the premises for the nonpayment of any tax or assessment shall not destroy or in any manner affect the lien of a mortgage thereon “ duly recorded or registered at the time of such sale,” except as thereinafter provided; and section 77 of the act makes it the duty of the purchaser at the tax sale to give to the mortgagee a written notice of the sale, requiring him to pay the purchase money with interest as therein provided. Section 82 of the act provides, so far as material to the questions here presented, that the notice need only be given “ to such persons as shall within two years from the time of such sale file in the office of the comptroller a notice stating,” among other things, the names of the mortgagor and mortgagee; and date and amount claimed to he due on the mortgage, “ with the name of the person or persons claiming notice, their resi
Many legal questions have arisen on the trial of this action, and they have been presented and argued with conspicuous ability; but I do not deem it necessary to discuss or to express a decided opinion on all of them. I have, however, with a view to rendering a new trial unnecessary, should the court on appeal disagree with the views here expressed, made findings on every proposition of fact which would be material to a decision of the case on any theory advanced; and, therefore, I trust that, if necessary, the conclusions of law may be changed without requiring a new trial.
The lien of the mortgage upon the premises was discharged, as to the people and their grantee under the tax sale, by a failure to file the notice with the Comptroller required by section 82 of said act. Chard v. Holt, 136 N. Y. 30. The learned counsel for the defendants further contends that, owing to the failure to file the notice with the Comptroller, the lien of the mortgage upon the land was discharged and that in no event could plaintiff, by the foreclosure deed, obtain any right, title or interest other than such as the mortgagors had at the time the mortgage was executed; and he relies on the provisions of section 1632 of the Code of Civil Procedure and on Rector v. Mack, 93 N. Y. 448, in support of the latter proposition, I am of opinion that plaintiff succeeded to the right, title and interest of the mortgagors, including whatever right they had to question the tax title; but it doubtless did not acquire any right that any other defendant in the foreclosure action had to question the tax title.
At the time the tax which resulted in the sale was levied upon the premises, they were owned by three tenants in common who were nonresidents of the town. It does not appear that the premises were occupied at the time, and the case has been tried upon the theory that they were not. It is conceded that the assessment was made upon the theory that the premises were owned at the time by nonresidents of the town; but it is contended by the plaintiff that the assessment was void for the reason, as it claims, that they were assessed as resident lands in the name of one of the owners. It appears that they were not assessed in that part of the roll containing the assessments of lands owned by residents of the town in the alphabetical order of the names of such residents, but were assessed at the end of the roll, following an assessment against a railroad corporation; and it is contended in behalf of the defendants that the name of one of the owners was inserted by way of description. The statute required that the lands of nonresidents .should be designated in the same assessment-roll with the lands of residents “ but
On the tax sale the lands were sold to the people of the State. Section 66 of said act, so far as material to the questions to be decided, provided that, if lands thus sold to the State “ shall not be redeemed, the comptroller shall execute a release therefor to the people of this state, or their assignees, which shall have the same effect, and become absolute in the same time, and on the performance of the like conditions, as in the case of sales and conveyances to individuals.” Section 50 of the act provided that the owner or occupant of the land “ or any other person ” might redeem the same as therein provided, at any time within two years after the last day of the sale, by paying to the Comptroller for the use of the purchaser, his heirs or assigns, the sum mentioned in the Comptroller’s certificate, together with ten per cent, per annum from the date thereof. Eo one attempted to redeem, and, therefore, it is not necessary to consider who had the right to and might have redeemed. Section 61 provided that the Comptroller should, at least-six months before the expiration of the two years allowed for redemption, publish a notice in each county a-s therein provided with respect to the lands therein sold for taxes and unredeemed, stating, among other things, that, unless the lands should be redeemed by the date specified in the
That amendment, however, as originally enacted, was, by virtue of section 2 of the act, confined to certain counties which did not embrace the county of Erie; but, by virtue of chapter 217 of the Laws of 1891, section 2 of the amendatory act was amended, so far as material to the questions now presented for decision, so as to read as follows: “ The provisions of this act are hereby made applicable to all the counties of the state except the counties of Cattaraugus and Chautauqua, but shall not affect any action, proceeding or application pending at the time of its passage; nor any action that shall be begun, proceeding taken or application duly made within six months thereafter for the purpose of vacating any tax sale or any conveyance or certificate of sale made thereunder.”
There being no proof to the contrary, it is to be presumed that the Comptroller duly published the notice to redeem, as required by the statute. It appears by the evidence that the Comptroller attempted to have a personal service made upon the owner or occupant of the premises of notice to ■redeem and that notice to redeem, addressed to the Buffalo
The authorities herein cited, in my opinion, dispose of every question raised by the plaintiff, with one exception, adversely to it.
The remaining question is whether the premises were sufficiently described in the assessment and in the subsequent proceedings to enable the court to give force- and •effect to the title attempted to be conveyed by the people of the State. The defendants are not very materially aided, I think, on this question, by the statutory provisions which have been discussed; for, whether they be considered as curative acts or as statutes of limitations, they cannot avail to give the purchaser from the State possession or to allow him to retain possession, if the description be so indefinite that it may not be known that the premises claimed under the tax title are the premises which were assessed and sold for the non-payment of the tax. The rule of construction applicable to tax titles is that the statutory requirements, construed strictly, must be substantially complied with to divest the owner of his title. Lockwood v. Gehlert, 127 N. Y. 241; Saranac L. & T. Co. v. Roberts, 195 id. 303, Sanders v. Downs, supra. If the premises were mortgaged to the defendants by the owner by the description contained in the assessment-roll, I am of opinion that there could be no question but that the mortgage would be valid, for there would be no room for doubt as to the premises intended to be covered by it. People v. Storms, 197 N. Y. 364. There is a distinction to be borne in mind between construing a description contained in an ordinary deed or in a mortgage and one contained in a tax title. In the former case the intention of the mortgagor or grantor would be controlling, while in the latter case the question would be whether the description is sufficiently definite to enable the owner and all persons interested to know and ascertain, by inquiry at the appropriate office or examination of the assessment-roll, what premises are assessed and to identify them, with reasonable certainty, so that' it may be fairly said that a particular tract or parcel of land is the parcel
“ If the land to be assessed be a tract which is subdivided into lots, or be part of a tract which is so subdivided, the assessors shall proceed as follows:
“ 1. They shall designate it by its name, if known by one, or if it be not distinguished by a name, or the name be unknown, they shall state by what other lands it is bounded;
“ 2. If they can obtain correct information of the subdivisions they shall put down in their assessment rolls, and in a first column, all the unoccupied" lots in their town or ward, owned by non-residents, by their numbers alone and without the names of their owners, beginning at the lowest number and proceeding in numerical order to the highest;
“ 3. In a second .column, and opposite to the number of each lot, they shall set down the quantity of land therein,
liable to taxation;
“ 4* * *
“ 5. If such quantity be a full lot, it shall be designated by the number alone; if it be a part of a lot, the part must*650 be designated by boundaries, or in some other way by which it may be known.”
The premises in cpiestion were described in the assessment-roll as part of lot 5, township 9, range 8, consisting of fifty acres, bounded on the north by lands of E. A. W. Ellis; on the east by White’s Corners plank road and on the south and west hy the lands of L. T. Sowle. There was only one tract of land that could answer that description. White’s Corners plank road was the easterly boundary of the lot; and, as the lot was originally laid out by the Holland Land Company, it was subdivided in part into two lots abutting on the White’s Corners plank road, each rectangular in form and containing fifty acres. At the time this assessment was levied, the fifty-acre lot in the northeasterly corner of the Holland Land Company’s lot was owned by said Ellis. That' necessarily shows that the other fifty-acre lot abutting on White’s Corners plank road was the land intended to be assessed. It was at that time bounded on the north by lands of said Ellis and on the south by lands owned by L. T. Sowle; and it was bounded on the west in part by lands owned by him, but only for about half the length of the westerly boundary. It was necessary, however, to continue the westerly boundary line as thus located in a straight line northerly, to enclose fifty acres; and by so doing the line intersects the southwesterly corner of the lands owned by said Ellis at the time the assessment was levied. In this mariner it is found that the northerly boundary line of the premises is the southerly boundary line of the lands then owned by said Ellis and corresponds exactly therewith in length. The strict rule applied by the courts in cases of city lots so subdivided, that the original boundaries afford no guide to their identity, is not applicable here. These premises were farm lands and remained as originally laid out by the Holland Land Company; and, therefore, in my opinion, the description was sufficient to identify them, and to afford notice to the owner or to any person interested by an examination of the assessment-roll or subs quent proceedings, and to give them information on inquiry at the proper office with respect to the lands that were assessed, and to enable the purchaser of the tax title to take and maintain possession. If,
Unless the courts are to decline to sustain any tax title and are to encourag'e the nonpayment of taxes, there is no reason for refusing to sustain this one; nor is there any hardship to the owner or to any person interested in the premises in so doing. The owner and all persons interested virtually abandoned their farm and neglected their duty to contribute their due proportion of the expenses of running the State and county government. It is most unfair and unjust to the taxpayers of the State who willingly bear their share of the burdens, to impose upon them the additional burden of paying, in the form of taxes assessed to meet bond issues or otherwise, the taxes of* others who are under like obligations but are unwilling to perform their duty. It should be better known and generally understood that tax titles may be sustained, and those who neglect their obligations with respect to the payment of taxes should take warning of the risk they are running.
I am of opinion, therefore, that the defendants are entitled to judgment dismissing the complaint with costs.
Complaint dismissed.