13 N.Y.S. 311 | N.Y. Sup. Ct. | 1891
Lead Opinion
The plaintiff’s right to recover for the trees cut and carried away by the defendants depended upon the question whether the intestate had established title to the lands upon which the trees stood. That title depended upon the validity and effect of two deeds from the comptroller of the state to Garret Smith,—the first executed in 1856, the second in 1869; the first recorded in the Warren county clerk’s office in 1859, and the second in 1869; both purporting to be made because of the non-payment of taxes assessed upon the lands described therein, which description embraced the loans in quo. The taxes upon the non-payment of which the lands were sold by the comptroller were assessed as upon non-resident lands. The defendants claim title under the comptroller’s deed of 1834, and gave evidence tending to show that at the time the taxes were assessed' under which the deeds to Garret Smith were given the lands were occupied under the defendants’ grantor. The learned trial judge submitted the question to the jury upon the evidence whether at the time the assessment was made and levied under which the deeds to the plaintiff’s grantor were given the lands were actually occupied by a Mr. Ralph under Abel French, the defendants’ grantor. Evidence was given by defendants tending to show that.the taxes upon the lands in question were paid before the return was made to the comptroller, under whose deeds the plaintiff claims. The trial judge submitted the question of fact to the jury whether such taxes were actually paid. The trial judge held and instructed the jury that if the lands were occupied under the owner at the time they were assessed and taxed as non-resident lands the taxes were void, and the deeds based thereon also void; and that, if the taxes had actually been paid before return of this non-payment was made to the comptroller, his subsequent deeds of the lands were void. The jury found for the defendants.
The plaintiff’s counsel asked the court to instruct the jury that the comptroller’s deeds to Garret Smith, under whom plaintiff derived title, having been on record in the clerk’s office of the county in which the lands are situate over 10 years, are, under chapter 448, Laws 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made. “The Court. I so charge as to the regularity of the sale, but not conclusive that the taxes were not paid, or were not properly levied.” The plaintiff excepted to the refusal. The court also held that the act in question is not intended to cure jurisdictional defects, but only relates to matters of the form of the proceedings. We think the rulings of the trial court were right. The plaintiff contended that by virtue of chapter 448, Laws 1885, the comptroller’s deeds under which the plaintiff claims, were validated and made unimpeachable either by proof that the lands were occupied or that the taxes had in fact been paid. The act provides that “all such conveyances that have heretofore been 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
But the fact of non-payment is a jurisdictional fact, and not a mere irregularity in the proceedings. Unless there is default in payment of the tax, the comptroller has no jurisdiction to sell the lands. As the legislature could in no case authorize the comptroller to sell lands for non-payment of taxes except upon actual non-payment, so, after a sale by him of lands as upon non-payment, when in fact there had been payment, the legislature, within the cases cited, could not ratify or validate such a sale. Eor what the legislature could not originally authorize, it could not subsequently ratify and validate. If by any refinement of statutory limitations or rules of evidence the state can ultimately confiscate the property of an individual in a case where it never had jurisdiction to proceed at all, then the constitutional guaranty of due process of law would yield to legislative despotism. As said in Howard v. Moot, 64 N. Y. 266, and repeated in People v. Turner, 117 N. Y. 235, 22 N. E. Rep. 1024: “A law that should make evidence conclusive which was not so necessarily and of itself, and thus conclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights.” But the act of 1885 further provides: “But all such conveyances and certificates and the tax-sales and taxes on which they are based shall be subject to cancellation, as now provided by law on a direct application to the comptroller, or, in an action brought before a competent court therefor, by reason of the legal payment of such taxes.” It is claimed that the defendants had six months in which to apply to the comptroller or the court for relief, against the comptroller’s deed “by reason of the legal payment of such taxes,” and, having failed to do so,.the statute of limitations bars their right to rely upon such a defense, and the comptroller’s deed is conclusive evidence that the taxes had not been paid. What has al
Objection was taken to the admission of a copy of the copy of the assessment roll filed in the town-clerk’s office of the town of Luzerne for the year 1856. Evidence was given tending to show that the roll for that year filed in the county treasurer’s office had been destroyed by fire, and that the copy thereof filed in the town-clerk’s office had been lost. Such being the case, the verified copy of the copy in the town-clerk’s office was the best evidence which the nature of the case admitted. The plaintiff cites People v. Chapin, 38 Hun, 272. That case did not hold that in no case could the copy in the town-clerk’s office be used, but held that if it varied from the original roll in the county treasurer’s office, or from the return made to the comptroller from the original roll, the original roll, and, in case of its loss, the return, should prevail. Here no return from the original roll was produced from the comptroller’s office. Objection is taken to the admissibility of some of the evidence tending to show payment. The assessment roll was produced. The collector was shown to be dead. Upon the line upon which the assessment and tax were entered, the word “Paid,” in the deceased collector’s handwriting, was entered. Evidence tending to show that it was his custom to make such an entry upon receipt of payment was given. We think the entry was admissible. Livingston v. Arnoux, 56 N. Y. 507; Leland v. Cameron, 31 N. Y. 115. Another assessment roll was produced, in which was written the word “Paid” upon the line upon which the assessment and tax were entered. The collector testified that he made the entry, that he made no such entry except upon payment of the tax, but that he had no recollection of the transaction. This entry also was admissible. Bank v. Madden, 114 N. Y. 280, 21 N. E. Rep. 408. .Objection is also taken to the sufficiency of the evidence to show that the lands were occupied at the time of the assessment and tax. We think the evidence sufficient to justify the presentation of the case to the
Learned, P. J. concurs.
Dissenting Opinion
(dissenting.) This is an appeal from a judgment entered upon a verdict of a jury in favor of the defendants. The action was for trespass in wrongfully entering upon lands of plaintiff’s grantor and assignor, and cutting and converting wood and timber, and for the recovery of treble damage under the provisions of section 1668 of the Code of Civil Procedure. The complaint alleges that the defendants were co-partners in the lumbering business, and that without leave they entered upon a tract of wild land belonging to Elizabeth Miller and Elizabeth F. Smith, and wrongfully and unlawfully cut and carried away a large quantity of timber and trees standing and growing thereon, and cut said timber and trees into logs, and girdled and stripped and peeled the bark from the hemlock trees and logs, and wrongfully and unlawfully took and carried off from such land and premises such bark and logs without the consent of the owners, to their damage of $5,000, and claims judgment under the provisions of sections 1667 and 1668 of the Code of Civil Procedure, for $15,000. • The answer denies all the allegations of the complaint, except as therein expressly stated, admitted, or qualified, and on information and belief denies the copartnership, and denies any information sufficient to form a belief as to whether Miller and Smith were joint owners, as alleged; also as to whether they conveyed the premises described in the complaint to the plaintiff, and also sold him the claim for damage, as therein alleged. The chief controversy on that trial was whether the land on which the timber and bark was concededly cut, and from which the defendants had taken or caused to be taken, was the land of the plaintiff, as described in the complaint. The parties respectively introduced the conveyances under which they claimed title to the premises where the timber was cut, and there is much conflicting and unsatisfactory oral evidence bearing upon the question of location.
The first three points made by the appellant for the reversal of this judgment relate to the alleged insufficiency of the answer, and alleged error in allowing the defendants to amend the same on the trial. We think the answer was sufficient to put the allegation of the plaintiff’s complaint in issue. Assuming that the defendants’ “denial of each and every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated, or qualified,” is neither a general nor specific denial, and not such a denial as is provided for in the Code, (People v. Snyder, 41 N. Y. 400; McEncroe v. Decker, 58 How. Pr. 250,) and the denial upon information and belief of the copartnership alleged in the complaint is not the form of denial authorized by section 500 of the Code of Civil Procedure, yet, as no motion was made to strike out these defective allegations in the answer, or for judgment on that account, and as the second, third, and fourth subdivisions of the answer denies any knowledge or information sufficient to form a belief, and each concludes with an express denial of the matters which it purports to answer, the whole answer, taken together, must be held sufficient to put in issue the allegations of the complaint. Nor do we think the allowance of an amendment of the answer on the trial error. Section 723 of the Code of Civil Procedure authorizes the court at the trial to allow an amendment of pleadings in the exercise of a sound discretion where justice will thereby be promoted, (Rosenwald v. Hammerstein, 12 Daly, 377;) and, as the plaintiff i n this case made no proof that she was misled to her prejudice by the amendment, it must be assumed that the discretion was properly exercised, (Code Civil Proe. § 539.) The plaintiff claims title to the locus in quo under two deeds from the comptroller of the state of New York to Garret Smith, alleged to have been given on tax-sales, one dated the 6th day of March, 1856, and pur
The learned judge at the trial held that the plaintiff, by his evidence, had made out a prima facie title to all of subdivision 4 and great lot 5 of the 25th allotment of the Kayaderosseras patent, on which the- alleged trespass was committed; but that prima facie title was attacked by the evidence of the defendant, tending to show that the tax-sales to Garret Smith, through whom the plaintiff claims title, were defective, and did not convey a valid title as against -French, to whose rights the defendant succeeded under a deed from him. The plaintiff insists that the tax-sale to Smith was conclusive evidence
If the act of 1885, under the conditions specified, made the deed to Smith conclusive, then inquiry into the validity of the assessment, and the circumstances under which the comptroller’s deeds were given, was.improper, and inadmissible, and the receipt of evidence on the trial, under the plaintiff’s objections, tending to establish that fact, was an error. In People v. Turner, 2 N. Y. Supp. 253, 49 Hun, 466, affirmed in 117 N. Y. 227, 22 N. E. Rep. 1022, the trial court excluded evidence offered of irregularities in the assessments to defeat a comptroller’s deed on the ground that the deed was conclusive, and the general term and court of appeals held the decision was correct, and the evidence was properly excluded, and the general term treated the act of 1885 as a short statute of limitation, and-upon that subject use this language: “It will be seen that the statute acted as a statute of limitations.” And in discussing the same question Huger, C. J., in delivering the opinion of the court of appeals, after quoting from the section above referred to of chapter 448 of the Laws of 1885, uses this language: “ With reference to the six-months provision, it operates as to all existing eases as a limitation upon the tax-payer’s right to assert his claim under pre-existing laws and as to all future cases provides that the lapse of two years from recording shall make that which was before presumptive evidence only conclusive upon the rights of the parties. The act seems to be in its principal aspect one of limitation, and, as such, is within the constitutional power of the legislature to enact as affecting future cases, and, we think, within the settled rule equally within its power as to existing rights. It gives in all cases time for the person aggrieved to establish his rights, unaffected by the provisions of the enactment, but provides that after the lapse of a certain time the comptroller’s deed shall be conclusive evidence of the regularity of the proceedings upon whicli it was based. Legislation of such a character has frequently been held within the constitutional power of the legislature to enact. ” Many other questions are raised on this appeal, among which is the other defendants’ right, acquired under the conveyances under the French deed, through which they claim, which we are not called upon to examine, if we hold, as I think we must, that the judge erred in allowing the evidence tending to attack the regularity of the comptroller’s deeds to Smith, through which the plaintiff claims. Those deeds, as we have seen, cannot be assailed in that manner, and the allowance of evidence for that purpose was error, for which a new trial should be granted. I think the judgment should be reversed,1 and a new trial ordered, costs to abide the event.