124 N.Y.S. 351 | N.Y. App. Div. | 1910
■ In this proceeding, which was to acquire title to certain real property for Ritter place in the city of New York, the commissioners of estimate and assessment made an award for parcel No! 1 on the' damage map of $9,384.33, which sum was deposited with the chamberlain of the city of New York, whereupon John Esch presented a petition to this court asking for the payment of such award. The heirs at law and devisees of Valentine Mott appeared in opposition to this claim of the petitioner, and the question as to who was entitled to this award was referred by this court to a referee who. has reported in favor of the petitioner, and the matter now comes v up for a final order.
The property in question was by deed dated January 15, 1855, conveyed by Mary Waddell to Valentine Mott,-which deed was duly recorded in the office of the clerk of the county of Westchester on the 31st of January, 1855, and it was conceded upon the hearing before the referee that Valentine Mott was the last owner of record of the fee of this lot. On the 1st of August, 1863, a lease was executed by Gilbert S. Lyon, as county treasurer of the county of Westchester, to Jason Rogers;, of the town of Morrisania, which recited that the county treasurer had received from the collector of the town of West Farms an account of unpaid taxes on this plot of land - and the county treasurer by virtue of the power in him vested and after due notice for that purpose published according to law did sell at public auction at the court house in the town of White Plains in the county of Westchester'on the 3d of - February, 1862, "the lot of land therein described for the lowest term-of years for which any person offered to take the same in consideration of advancing the sum necessary to discharge the taxes, interest and expenses due thereon at the time of sale, and that one Henry became the purchaser at such sale- for the term of 1,000 years for the sum of two dollars and fifty-seven cents, that being the amount of tax charged on said parcel or lot with interest and expenses due
It has been the settled law in relation to " the enforcement of tax leases that to divest the title of the owner of real property it was essential that the officers attempting to sell the property for a tax should strictly comply with °all the provisions of the statute “having the semblance of benefit to the owner.” (See Clason v. Baldwin, 152 N. Y. 210, and cases there cited.) So that unless
Chapter 427 of the Laws of 1855 was entitled an act in relation to. the collection of taxes on lands of non-residents and to' provide for the sale of such lands for unpaid taxes. It provided for an annual return of the. arrears of taxes by the treasurers of the counties in which the lands were assessed to the Comptroller; that whenever any account of arrears of taxes should be transmitted to the Comp- • troller and any tax charged on such lands shall remain unpaid for two jmars from the first day of May following the year in which thesamé was assessed, the Comptroller should proceed to advertise and sell such lands in the manner therein provided. .
Section 63 provided that if no person should redeem such lands within two years the Comptroller should at the expiration thereof execute to the purchaser, his heirs or assigns, in the name of the people of the State, a conveyance of the real estate so sold which shall vest in the grantee an absolute estate in fee simple. Section 65 provided that all conveyances executed by the Comptroller of lands sold by him for taxes shall be presumptive evidence that the sale and all proceedings prior thereto from and including the assessment of the lands and all notices required by law to be given previous to the expiration of the two years allowed to redeem were regular, according to the provisions of the act and all laws directing or requiring the same or in any manner relating thereto. By chapter 448 of the Laws of 1885 section 65 of this act was amended so as to provide that such conveyances shall be executed by the Comptroller, under, his hand and seal, and “ all such conveyances that .have been heretofore executed by the Comptroller and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located * * * shall * * * be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and. served according to the provisions of
The act carefully protects the owner of property by awarding ample time for redemption, provisions which give much more protection to the owner of property sold for taxes than is contained in the local act relating to Westchester county providing for leases where land has been sold for non-payment of taxes made by the county treasurer.
Prior to the passage of chapter 217 of the Laws of 1891 the provisions of this act applied only to certain counties in' the State which were subsequently included in what was called the forest preserve, and the provision which made a conveyance conclusive evidence that the sale and all proceedings prior thereto from and including the assessment of the lands and all notices required by law to lie given previous to the expiration of the two years allowed by law to redeem were regular and were regularly given, published and served according to the provisions of this act could only apply to sales by the Comptroller and conveyances executed by him. By the express provision of the act this presumption applied only to “ such conveyances ” which were conveyances which should vest in the grantee an absolute estate in fee simple. The act of 1891 (Chap. 217) made the provisions of the act as amended applicable to all the counties in the State except the counties of Cattaraugus and Chautauqua. It provided that all applications made to the Comptroller for the cancellation of any tax sale by any person interested in the event thereof should be heard and determined by him, and his determination should be subject to review by certiorari or other
In the year 1860 (Chap. 454). the Legislature passed a special act authorizing the sale of lands for non-payment of taxes and for the collection of unpaid taxes in the county of Westchester. It pro?
I have presented a review of the 'legislation affecting this question as important in determining the effect of section 132 of the Tax Law, as that is the only law that is now in force. The insertion of the word's “county treasurer or county judge” in section 12 of the act of 1893 was evidently for the purpose of validating a sale by the Comptroller and county treasurer or a county judge in counties in winch were included lands of the forest preserve, and section 132 of the Tax'Law was a re-enactment of that provision. 1 think this provision must be confined to conveyances made either by the Comptroller or a county treasurer tinder the various acts to which attention has been called which convey to the purchaser a fee of the property, and have no application to a lease made under a special
It follows that the referee’s report must be set aside and the case referred to another referee to determine the question as to the validity of this tax lease and. the person or persons to whom this award shotild.be made.
McLaughlin, Clarke, Scott and .Dowling, JJ., concurred.
Report set aside and case referred to another referee.. Settle order on notice.