10 Abb. N. Cas. 431 | Superior Court of Buffalo | 1881
This is a case agreed upon in a controversy submitted to the court without action, pursuant to the provisions of the Code.
The plaintiff and the defendant, on October 30, 1880, entered into a contract in writing under their respective hands and seals, whereby the plaintiff agreed to sell and convey to the defendant, by title free and clear of all incumbrances, a parcel of land situate in the city of Buffalo, for which the latter agreed to pay the plaintiff $975, on November 3, 1880, when the deed was to be delivered. On that day the deed was tendered and payment was demanded, but the defendant refused to receive the deed or pay the money, on the ground that the land was incumbered by certain unpaid taxes and certificates of sales for taxes under the charter of the city of Buffalo.
The case shows that the land was regularly sold to the city of Buffalo by the comptroller of the city, on April 3,1873, for the term of one hundred years, for the general city tax of 1872, and an assessment for a local improvement, amounting in the aggregate to $24.64; and again on April 30,1874, for one hundred years, for
The qu-'stion in difference between the parties is whether the taxes and assessments, or either of them, or the sales of the land therefor, constituted a lien or incumbrance on the land on November 3, 1880. If answered in the affirmative, judgment is to be rendered for the defendant, with costs; if in the negative, for the plaintiff for $975, and interest and costs. '
The law authorizing the sale of lands by the city of Buffalo for unpaid taxes and assessments is contained in title 7 of the city charter, which is chapter 519 of the Laws of 1870.
It is provided by sections 1, 3, 4, 5, 9, 11,12,13 and 15, that all taxes and assessments shall be a lien upon the lands on which they are assessed for five years from the delivery of the assessment roll to the treasurer ; that the collection of every assessment and every tax returned unpaid may be enforced by a sale of the lands; that the sale of such lands shall be made
From this summary of the provisions of the charter it is evident: First. That the lien of taxes and assessments upon the lands assessed is limited to five years from the delivery of the assessment roll to the city treasurer.
Second. That the lien must be enforced by a sale of the lands before it expires ; that is, before the five years elapse.
Third. That the owner, occupant, and every mortgagee of the land.is entitled to notice to redeem it from the sale, which notice may not be served until the expiration of nine months from the time of the sale, and must be served before the expiration of three years from that time.
Fourth. That the redemption must be made within three months after the service of the notice to redeem, and
Fifth. That a declaration of sale cannot be granted 1 until after the time to redeem (three months) has expired, nor after the expiration of five years from the time of the sale.
The case agreed upon by the parties does not state when the lien of any of the taxes and assessments for which the land in question was sold attached; and we
And not only had the right of the city to enforce redemption of the land from the tax ceased by reason of the failure to exercise that right within the time limited by the statute, when this contract of sale was made, but even had that right been duly exercised, no declaration of sale could have been made at the date of the contract between these parties, for the reason that by the express terms of the statute no such declaration can be made after the expiration of five years from the time of the tax sale, and more than five years had expired from the date of the latest tax sale, and no declaration of sale had been made. It is only by virtue of the declaration of sale that the purchaser at a tax sale can enter upon the land or disturb the owner’s possession and enjoyment thereof. , As the time within which the declaration of sale could be granted had expired before the parties made their contract of sale, the claim of the purchaser at the tax sale had wholly ceased, and was no lien or incumbrance on the land.
It is hardly necessary to say that the limitations prescribed by statutes which provide for the collection of taxes by sale of the land assessed, are and always have been rigidly enforced by the courts.. Unless every provision of the statute designed for the security or protection of the tax-payers has been fully and substantially complied with, the claim of the purchasers at the tax sale must fail. In the language of Chief Justice Savage, in a case arising under a tax sale (Jackson v. Esty, 7 Wend. 148): “It is a cardinal principle that a man shall not be divested of his interest in his property, but by his own acts, or the operation of law; and where proceedings are instituted to change the title to real estate by operation of law, the requirements of the law under which the proceedings
The question submitted to the court in this case must be answered in the negative, and judgment rendered for the sum due the plaintiff, with costs, proper provisions being made for the delivery of the deed upon payment of the judgment.
By the terms of the charter organizing the municipality known as the city of Buffalo, a power is given to impose taxes and assessments upon the property within the territorial limits of the city, for the purposes of supporting, governing and maintaining its corporate existence. It is a power delegated from the sovereignty of the State ; not an inherent corporate power, but dependent for its very vitality upon the terms, limitations, directions and restrictions contained within the charter. The corporation exists solely by virtue of the statute creating it, and must proceed in its work of government in precise conformity to the statutory provisions by virtue of which it became a corporation. The sa me rule always applied to the proceedings of courts or tribunals .of limited and inferior jurisdiction ; requiring all proceedings to comply with the terms of the statutes creating them. It is obvious how wise and important this rule is, designed to insure the protection of the citizen in his rights of personal liberty and property ; that he may know they exist by no uncertain tenure, and that he cannot be deprived of them except through the observance of the forms of law.
Now, according to the very terms of the charter, the lien of the taxes and assessments in question was limited to five years from the Limes of the delivery of the respective rolls to the treasurer, and the power to grant the declaration to five years from the time of sale. These provisions were wisely inserted in the statutes, for the reason that the sovereignty should be held to some limitation in the exercise of its conceded right to incumber and sequestrate the property of the citizen. An illustration of this principle is found in our statute of limitations, by which it is provided that the people of the State of New York will not sue a person for or with respect to real property by reason of the right or title of the people to the same, unless the cause of action accrued within forty years before the action is commenced. If not commenced within forty years, and the rights of the people asserted by judicial proceeding, the State is barred. It should not be allowed to impose the tax and acquire a lien paramount to the rights of the owner and all others interested in the property, and take no further steps for the enforcement of that lien, and therefore the legislature expressly limited the duration of it; thereby in effect declaring that with the expiration of the five years the lien should be inoperative, and the property, in judgment of law, released from the burden. This limitation worked no hardship to the sovereignty, for it was empowered to proceed in rem against the property and acquire the possession and use thereof for a term of years. The property was to be sold at public auction, and the city, in default of any purchaser, was empowered to bid, but that sale was required to be had before the lien expired. Whoever purchased was obliged to serve notices to redeem from the sale, bat such notices could not be served until nine months
Mow the case shows that the city became the owner of the certificates of sales in the years 1873, 1874 and 1875, and that the time within which, as such holder, it could require the owner to redeem by serving the prescribed notices, had expired more than two years before the contract of sale was executed. It served no notice, to redeem, and the consequence follows that the sales and the certificates of sale had, at the time of the contract, ceased to have validity. The requirements of the law have not been observed, and no declaration contemplated by the charter can ever be granted or issued. For all purposes, the taxes and assessments were discharged, and the city had lost all rights it acquired as purchaser to enforce the payment, and the property was freed and absolved from the burdens before the date of the contract between these parties.
The correct principle governing cases of this kind, I believe to be, that when the legislature empowers any officers or boards, or a municipality, to impose liens or' burdens upon the property of the citizen, impairing or divesting his interest or title therein, as they existed under the protection of the common law of the land, the mode and manner of proceeding must be strictly pursued and observed according to the statute, or the object is not accomplished, but entirely fails.
I therefore agree in the conclusion that the question submitted must be answered in the negative.