100 Misc. 379 | N.Y. Sup. Ct. | 1917
On the 26th day of November, 1901, Sarah Levinson and Bernard Annenberg by deed from one Louise Wilbur became the owners of a plot of ground in the village of Hunter, Greene county, being about 118 feet on Main street and bounded in the rear by the Schoharie creek. Bernard Annenberg died in 1905 intestate, leaving him surviving the plaintiffs except George A. Levinson who is not a proper party to the above action. The Annenbergs, from the time of the purchase of this property by the father, occupied the same during the summers up until the year 1909. It was assessed for the taxes of the years 1905, 1906, 1907 and 1908 by the descriptions following:
*381 “For year 1905, name of taxable person, Sarah Levinson; taxable real property description ‘h and 1;’ full value of real property taxed, $300.00; tax $3.78.
“ For year 1907, name of taxable person, Sarah Levinson; taxable real property description ‘ h and 1;’ full value of real property taxed $300.00; tax $3.24.
“ For year 1908, name of taxable person, Sarah Levinson and Company; quantity and description of land- ' h and 1;’ full value of real property taxed $300.00.”
Such proceedings were had and taken that on the 10th of December, 1910, the above property was sold at a tax sale to the defendant George H. Faulkner. On the 13th day of February, 1912, the comptroller of the state executed and delivered a deed of .the said property to the said defendant Faulkner and thereafter the said Faulkner caused the notice required by section 134, chapter 62 of the Laws of 1909 to be served upon the occupant of said premises, one Edward Rein.
Prior to and at the time of the sale of said property for taxes and for some time thereafter said George H. Faulkner had charge of the renting of the premises described in the complaint, rented the same and collected the rents thereof and applied the same to certain school taxes or remitted them to certain of the plaintiffs upon a compensation of ten per cent. During such time the said defendant Faulkner was the executor of a certain estate among the assets of which was a mortgage for $300 against the -said property. On or about the 17th day of August, 1909, the taxes on the said property for the years 1906, 1907 and 1908 were paid by the owners and at the time of the sale there only remained the taxes of 1905 unpaid. The defendant Faulkner did not immediately inform any of the plaintiffs that the property
In May, 1915, the above entitled action was commenced. It is an action of ejectment brought against Faulkner and Meyers claiming under the tax title. The plaintiffs claim that Faulkner had no title, that the sale was inefficacious and the deed void for several reasons:
First. That there is no description of the property of a non-resident to base a sale upon.
Second. That the property was assessed as resident property, when the owners were non-resident.
Third. That the sale was had for the taxes of three years, 1905, 1907 and 1908, though the taxes for 1907 and 1908 had been paid.
The answer of the defendants is that the sale was a valid sale, that the plaintiffs are barred by the provisions of the limitations contained in sections 131 and 132 of the Tax Law relating to real estate and that in any event the plaintiffs are estopped by an estoppel in pais from claiming title to the said lands. Without discussion of any of the other imperfections claimed by the plaintiffs or existing in the title of the defendants, I am constrained to the opinion that the comptroller was without jurisdiction to sell the property for the taxes of 1907 and 1908.
‘ ‘ When a tract of land is assessed for the taxes of several years and the taxes have' been paid for one or more years but the land is sold for its whole amount
Section 132 of the Tax Law especially provides that where there has been a payment of the taxes it constitutes such a defect in a sale that the owner may bring an action within five years from the expiration of the period allowed by law for the redemption of the land sold. No pretense is made in the action at bar that five years had thus elapsed. Meigs v. Roberts, 162 N. Y. 379.
There remains but the question of whether the plaintiffs should be estopped by their conduct in suffering the defendant Meyers to make improvements upon the property. It is a well recognized principle of equitable jurisdiction that no title may be acquired by estoppel unless fraud lies at the base of the transaction. It is also a well Imown principle affecting real estate that a stranger may not expend money in improving the land of another and ask indemnity for such expenditure against the actual owner whether such owner knew or was ignorant of the expenditure. It is apparent any such moneys would be expended at the risk of the stranger to the title. Another situation is presented where a claimant to the title has expended money in the improvement of land where ownership is disputed. Meyers held the warranty deed of Faulkner. He made the improvements relying upon his title. But that alone could not save him from loss. The only thing that can relieve Mm against the error of expending his moneys on the lands of another is fraud on the part of the actual owners— the existence in them of a fraudulent intent. 2 Pom. Eq. Juris. (3d ed.) § 807; Lawson Rights & Rem. § 2701; 1 Story Eq. Juris. 391.
Was there a fraudulent intent in the plaintiffs? That would depend of course upon what the plaintiffs
“ There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares, that if one man, knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.” Wendell v. Van Rensselaer, 1 Johns. Ch. 353; Storrs v. Barker, 6 id. 166.
I do not think the provisions of section 1531 apply to the case at bar where the decision turns upon an issue of fraud. Complaint dismissed. Costs to the defendant Meyers.
Judgment accordingly.