30 N.Y.S. 134 | N.Y. Sup. Ct. | 1894
This action is to recover possession of two lots of land in the town of Mamaroneck, Westchester county, described as Nos. 117 and 118 on a map of lands of Thomas R. Hawley. Hawley and his wife conveyed the lots to Henry Parsons, the plaintiff’s husband, in 1871, and in 1874 they were conveyed to the plaintiff. The defendant is in possession, and claims title under two tax leases made by the supervisor of the town pursuant to a sale of the lots for
The lots were, prior to 1871, a part of the McIntyre farm, but subsequent to that year were assessed separate from said farm, as residence land, in the name of Henry Parsons; and the only difference in the assessment for the two years in question is that in 1889 they were assessed as one and in 1890 as two parcels. Parsons and wife were, subsequent to 1882, residents of the town of Rye, in Westchester county, and plaintiff never resided in Mamaroneclc. The defendant claimed and the court found that at the time of the assessment the lots were occupied by one S. W. Parker, defendant’s father; and, although the appellant contends that such finding is without support in the evidence, it is not material to the question presented. The assessment made did not conform with any provision of the statute regulating the manner in which property is assessed. Rev. St. (8th Ed.) p. 1094, §§ 1-3. Occupied lands, owned by a person who is a nonresident of the town in which they are situated, but a resident of the county, may be assessed to the occupant, as lands of nonresidents, or to the owner. Section 2. The lots in question were not assessed in either manner specified, but as residence lands, to Henry Parsons, who was neither owner nor occupant. The assessment was therefore void. Hilton v. Fonda, 86 N. Y. 339; Stewart v. Crysler, 100 N. Y. 378, 3 N. E. 471; Sanders v. Downs, 141 N. Y. 422, 36 N. E. 391.
The defendant does not seriously contend that the assessment was valid, but he claims that the plaintiff assented to the mode of assessment, and is now estopped from claiming it tó be void. This claim is based upon the fact that up to 1889 the plaintiff’s husband, acting as her agent, annually sent for and paid the tax bills, and never informed the assessors that he had conveyed the lots to his wife, but permitted them to believe that he was the owner, and to assess in his name. Hilton v. Fonda, supra, is relied on to sustain this contention, but that case has no application to the facts of this action. The plaintiff there sought to recover damages from the assessors personally for an illegal assessment; and because his agent informed defendants that plaintiff owned the lands, and appeared before them when they met officially, and claimed and gave evidence to the effect that the valuation was too high, but made no claim that the lands were assessed as lands of a resident, the court held that the plaintiff waived the observance of the statute, and assented to the mode of assessment, and could not thereafter maintain an action for personal damages against the assessors; but it was also held that the assessment made was illegal. In this case there is no question presented as to the right of the owner of the land to enforce a personal liability against the assessors. We are concerned only with the question whether the assessment was so made to create a charge upon the land, and it would seem to be too clear to require argument that there can be no lien upon land as the result of a void assessment. But the evidence does not support the finding that the plaintiff consented to the mode of assessment. Nothing was ever
The defendant, however, claims title under two other tax leases, antedating the assessments of 1889 and 1890. One bears date October 27, 1877, and the other October 5, 1883. Neither the assessment nor the tax upon which either of these leases rest was proven, and does not appear in the case; but reliance is put upon the statutory provision that “such lease shall be presumptive evidence that such tax was legally imposed and of the regularity of all the proceedings and of the sale.” Laws 1874, c. 610, § 6. We are of the opinion that sufficient appears in evidence to overcome the presumption of regularity given by law to the leases, and that they convey no title to the lots in question. As already stated, the lots were a part of a tract of land, of about 90 acres, known as the “McIntyre Farm,” owned by Thomas R Hawley prior to 1871. The leases of 1877 and 1883 described by bounds “all that * * * parcel of real estate known as ‘Thomas R Hawley’s McIntyre Farm,’ 86 acres,” etc., and the statute shows that the proceedings to sell related to taxes for the year immediately preceding the sale. The presumption to be drawn from the lease, therefore, is that the tax for the nonpayment of which the McIntyre farm was sold was legally imposed, and was a charge upon lots 117 and 118, and that the proceedings for the sale were regular. But the court found that the lots were conveyed by Thomas R Hawley to Henry Parsons in 1871, and that in and subsequent to that year they were assessed separate from the McIntyre farm, and that the taxes were paid for every year to 1889; and the case shows in detail the amount of each annual tax, and the time and manner of its payment. It is clear from this evidence that the leases of 1877 and 1883 have no relation to the lots in question, and if the lots lie within the general description contained in those instruments the presumption of the regularity of the proceedings for the sale, so far as it apparently applies to them, is entirely overcome by the fact that the tax imposed on them was paid. The
