203 Misc. 619 | N.Y. Sup. Ct. | 1952
This is an action instituted pursuant to article 15 of the Real Property Law for the purpose of determining conflicting title claims to farm land at North Bellmore, Nassau County. Plaintiff’s grantor acquired his title by deed issued by the County Treasurer of Nassau County (December 20, 1950) who, officially, had purchased a tax lien against the property. That deed will be referred to as the ‘ ‘ tax deed ’ ’. The defendant is the Town of Hempstead. The facts are stipulated.
The complaint alleges: sole ownership of the property in plaintiff; that it holds title by deed as a purchaser; that the source of its title is the tax deed issued by the County Treasurer of Nassau County on December 20, 1950, he having officially acquired the property at a tax sale held in December, 1948; that defendant unjustly claims an interest in the property adverse to plaintiff’s basing its claim upon a failure of early title in plaintiff’s chain.
The answer denies the foregoing allegations except defendant admits that it has a claim adverse to plaintiff’s title. Also, defendant sets up a counterclaim wherein it alleges sole ownership of the land; that its sources of title are patents issued by the colonial Governors of New York and deeds from the Indians then (Colonial days) inhabiting the town of Hempstead; that the land in suit consisted of meadow and marsh lands and was a part of the “ common lands ” belonging to defendant; that at all times defendant exercised ownership of said commons, reserved them for public purposes and claims title thereto; that plaintiff claims an interest in said property adverse to defendant’s which is based upon the tax deed issued as a result of a tax lien foreclosure proceeding wherein the unpaid tax was illegally assessed.
The reply denies the allegations of the defendant’s counterclaim, except that it admits that defendant’s interest is derived from ancient patents and deeds and that one of plaintiff’s sources of title is the tax deed. The reply also contains three counterclaims. The first alleges that the sources of its title are based upon the tax deed as well as a deed dated August 10,1948, from the heirs, etc., of one Charles Anderson; a second counterclaim alleges that plaintiff and its predecessors in title have been in adverse possession (claiming title under deeds) and have been
At the trial of this action, four issues were litigated. (1) The regularity and, therefore, the validity of the tax deed; (2) the correctness of plaintiff’s procedure in seeking relief under article 15 of the Real Property Law instead of under section 5-57.1 of the Nassau County Administrative Code (L. 1939, ch. 272, as amd. by L. 1939, ch. 704) which provides procedure for the foreclosure of tax liens; (3) the validity of plaintiff’s title both by deeds and adverse possession and (4) the validity of defendant’s title based upon its ancient patents and deeds.
Defendant’s procedural objection to the avenue through which plaintiff seeks relief may not be sustained. Both article 15 of the Real Property Law and section 5-57.1 of the Nassau County Administrative Code provide procedure for the relief plaintiff demands. Plaintiff had the right to proceed as it did under article 15. The Administrative Code provision is not exclusively applicable in cases such as this one. Bach provision of law (Real Property Law, art. 15; Nassau Co. Administrative Code, § 5-57.1) uses the words “ may maintain ” in the language authorizing the institution of this form of remedial litigation. Therefore, the litigant may elect.
Plaintiff’s title via deeds depends for validity upon its grantor’s title, which was the tax deed issued by the Nassau County Treasurer. Defendant maintains that the tax lien foreclosure procedure was fatally defective and must be treated as a nullity in that the “ Notice to owner by holder ” required to be given by law (Nassau Co. Administrative Code, § 5-51.0) did not “ advise the property owner of what has occurred, i.e., that a lien for unpaid taxes against the property is now held by the purchaser (of the tax lien), and what will happen, if he does not redeem and when it will happen.”
The learned town attorney cites those familiar cases which hold that where a statutory proceeding like this one is instituted, the provisions of law which created it must be strictly pursued
The notice served read in full:
LONG ISLAND LAND RESEARCH BUREAU INC., 101 East 41st Street, New York City, New York
TOWN OF HEMPSTEAD, Town Hall, Front St., Hempstead, Long Island, New York
TAKE NOTICE
That the hereinafter described property was sold to the undersigned at a tax sale held by the County Treasurer of Nassau County in December 1948 for the unpaid taxes of
the School year 1947/48 which became a lien October 1st, 1947
and that this notice to redeem the same is hereby served upon you pursuant to law.
The expense of making searches thereon and of serving this notice is Twenty-five ($25.00) Dollars.
If the property is not redeemed on or before December 19th, 1950, the purchaser may elect to accept a deed of conveyance of the same. The office where the money for such redemption can be paid is the County Treasurer’s Office at Mineóla, L. I., between the hours of nine o’clock in the forenoon and four o’clock in the afternoon.
In the event of such property not being redeemed within the time stated, the undersigned purchaser of such property at such tax sale elects to accept a deed of conveyance of such property as provided by Section 5-51.0 of the Nassau County Administrative Code.
The property to be redeemed is shown on the Nassau County Land and
Tax Map as
School District 4
Section 56
Block G
Lots 17
Grace E. Connolly
NOTE PARTICULARLY: That a bill of the amount necessary to redeem should be applied for at once to the County Treasurer at Mineóla, N. Y., who has charge of the collection of all tax arrears.
IN CORRESPONDENCE PLEASE REFER TO CERT. NO. 1966 Dee. 1948
Mildred McGinity, Attorney 194 Old Country Road Mineóla, L. I., New York
The court is aided in its disposition of the above objections to the form of the tax foreclosure proceeding by the provisions of the Nassau County Administrative Code wherein it declares that the tax deed vests an absolute estate in fee in the purchaser of the lien (§ 5-53.0) and that redemption must be effected before the delivery of the tax deed (§ 5-50.0). In addition, adoption of the argument of the town’s attorney would be to visit upon an innocent tax lien purchaser the severest of penalties, viz.: forfeiture, sought to be imposed because of a super technical objection raised by one not actually aggrieved by the alleged omission but who merely is seeking at this time, excuses and escapes to avoid the consequences in this suit of its own default in the tax lien proceeding in order to desperately bolster up some kind of opposition to this action brought by plaintiff to clear its title. There is no proof that at the time the foreclosure proceeding was in progress the town of Hempstead or anyone else having a right to do so was interested in redeeming the property. Setting up straw men who theoretically could have been minutely misled by the microscopic immaterial inaccuracies contained in the notice, forms no just basis for declaring the tax lien foreclosure proceeding and resulting deed void, when, in fact, no one was misled.
The failure of the notice to set forth the exact date of the tax sale, if the law required that precision in all instances, as viewed at this stage, is immaterial. I consider that the “ notice to owner by holder ” was, under the circumstances, adequate.
Having disposed of the first two issues in this trial, I will treat with the remaining two issues which are the validity of the respective claims of title of plaintiff and" defendant.
The “ common lands ” including the locus in quo were acquired by patent by the Town of Hempstead from the colonial governors of New York. It is agreed by counsel that the town could divest itself of its “ common lands ” title only by vote of the inhabitants taken at a town meeting or at a town election.
Confronted by that negative, should this court come to a halt and dismiss the complaint? I think not. I regard it to be the duty of this court to examine all of the proof in a search for secondary evidence which may show that the town did in fact act. The proof before me, plus judicial notice which I am obliged to take, is that the uplands or commons within the boundaries of the town of Hempstead are, (1) owned and occupied by their current title holders and that their predecessors in title similarly owned and occupied those lands; and (2) that the ownership and possession of those title holders have been peaceable and undisturbed for centuries. No record of an ejectment proceeding’s having been instituted by the town or by anyone or even a claim of that nature has been brought to this court’s attention, based upon that void (no town divestiture) in the title chain above mentioned. There is no proof that the titles to the 40% are not as solidly and firmly anchored as the rest of the uplands or commons because they, too, have enjoyed that same undisturbed and peaceful ownership and possession as the 60%, in spite of the fact that there are no public records concerning them for the town’s first fifteen years’ existence. No one will suggest that the titles to 40% of the former town of Hempstead commons are tainted because of the “ missing ” records.
The proof before this court is to the effect that from the early days of the colony of New York until this suit was instituted, no question has ever been raised as to the title of the
That point having been decided, the legal question of whether the issuance of such an allotment, grant or deed may be established other than by the instrument or record itself is projected. The answer must be in the affirmative. In the first place, any facts in a civil suit may be proved by circumstantial evidence. However, in Masterson v. Harris Co. Houston Ship Channel Nav. Dist. (15 S. W. 2d 1011; 67 A. L. R. 1324), a Texas case, a missing deed was established by circumstantial evidence. The comment. (67 A. L. R. 1333) was to the effect that Delaware, Massachusetts, Missouri, Oklahoma and Texas had approved such rule of evidence.
Adverse possession is clearly established by plaintiff. The town attorney concedes the possession but questions its legal effect when applied to a municipality. I find that the cases hold that where lands are held by a municipality in its governmental capacity they may not be lost by the adverse possession of others but when held in its proprietary capacity, there is no such immunity against adverse possession (Timpson v. Mayor of City of New York, 5 App. Div. 424; Knapp v. City of New York, 140 App. Div. 289; City of New York v. New York Central R. R. Co., 198 App. Div. 517, affd. 234 N. Y. 113).
There is no proof that these commons were being reserved for a governmental purpose. The proof is that the town has never used or attempted to use them except to hold them. In other words, the commons just laid idle for years upon years. That is inconsistent with a holding for governmental purposes. If the town is to avail itself of the municipal immunity from the prescription rule, I think it was required to adduce some proof that the locus in quo was reserved for some governmental purpose. The town’s failure to assert its title or to use the lands — both failures continuing over centuries — establishes sufficiently that the lands were not held for governmental purposes but were held by the town in its proprietary capacity. As such, the locus in quo was not free from the legal effects of adverse possession.
Judgment, with costs for plaintiff, will be entered for the relief demanded in the complaint and in the counterclaims contained in the reply and dismissing the counterclaim set forth in the answer.
