People ex rel. Forest Commission v. Campbell

35 A.D. 103 | N.Y. App. Div. | 1898

Merwin, J. :

The only remaining question to be considered in these cases is, what direction shall be given or condition imposed by way of restitution to Benton Turner, for whose benefit these proceedings are defended, for moneys paid by him into the treasury of the State or laid out on the premises in question.

The cancellation of December 30, 1891, was made upon the condition that “ all the taxes for which the said lands were so sold, and all other taxes that are now a lien upon said land,” should be paid.

It appears that on December 31, 1891, Benton Turner paid into the State treasury the sum of $9,538.21. This, as indicated by the papers submitted to us on the subject of restitution, was made up as follows :

Taxes of 1866, 1867, 1868, 1869, 1870, for the non-payment of which the land had been sold in 1877, with

interest to December 31, 1891.................... $2,128 47

Taxes of 1861, 1862, 1863, 1864, 1865, for the non-payment of which the land had been sold at the tax sale

of 1890, with interest to December 31, 1891........ 6,705 59

Taxes of 1886, 1887, 1888, 1889, 1890, with interest to December 31, 1891 ............................ 704 15

Total................................... $9,538 21

At the tax sale of 1890, above referred to, the property was bid in by the State and a certificate issued to it. This certificate was, on December 31, 1891, assigned by the Comptroller to Smith M. Weed, and at the same date an assignment thereof made by Weed to Julia H. Turner. On the back of this assignment, as certified from the Comptroller’s office, it is noted that a conveyance was made to Julia H. Turner December 29, 1892.

On the 8th day of May, 1886, Mr. Turner, through his attorney, paid into the State treasury the sum of $1,306.30 for redemption of the premises from the tax sale of 1881 made for the taxes of the years 1871 to 1876. On December 27, 1887, he paid into the treasury the sum of $1,124.61 for redemption of the premises from the tax sale of 1885 made for the taxes of 1877, 1878, 1879 and for 1853, 1854 and 1855.

An affidavit of Mr. Turner is presented in which it is stated that after the cancellation of December 30, 1891, he, believing his title perfect, entered upon the land and made preparation for extensive lumbering operations, building a dam across Cold brook at an expense of $3,500, building sluice ways and improving the brook to make it available for running logs at an expense of $3,000, building several camps, barns and other buildings for use in lumbering business at an expense of $5,350, building roads and bridges at an expense of $1,500 ; that these buildings and improvements are practically mseless to him except for the purpose of utilizing the timber on said premises, except that the main camp was to some extent used in aid of the lumbering operations on an adjoining tract, township 27, owned by him; that in June, 1892, after this expense was incurred, an injunction was served upon him on behalf of the State restraining him from entering on the land.

On the part of the relator an affidavit of Cyrus F. Whitney, a civil engineer, is presented in which it is in substance stated that he is familiar with the lands in question and with lumbering; that the improvements mentioned by Turner were made long before December 31, 1891, and for the purpose mainly of lumbering oil Turner’s adjoining tract, and many of the buildings are on that tract; that the cost of the buildings is largely overstated and many of them are now rotted down.

It also appears on behalf of the relator that, on the 6th of June, 1891, the People of the State recovered judgment against Turner for $2,198.60. On the affirmance of this at General Term a further judgment was recovered against Turner for $72.04 May 18, 1894, and on the affirmance of this by the Court of Appeals, a further judgment of $151.75 on February 17, 1898. These judgments are shown to be unpaid. The recovery in the original judgment was for the value of logs taken by the defendant therein from the premises in question about March 1, 1887. It is not suggested by the relator that Turner has taken any other timber or had any other use of the property that should be considered on the question now before us.

The defendant, or rather Turner through the defendant, claims that, as a condition of the reversal of the determination of the Comptroller, the amount paid by him on December 31, 1891, being the sum of $9,538.21, should be restored to him. Before Turner is in a position to ask this, he should restore to the State all the rights it had under the certificate given to it on the 1890 sale so that there will be no outstanding claim against the State or the property by reason of the transfer of that certificate or any conveyance that may have been given thereunder.

Such restoration being made, Turner then would be in a position to ask that the money that he paid December 31,1891, be paid back to him upon the reversal of the Comptroller’s determination.

It is also claimed on behalf of Turner that he should be reimbursed for his expenses for improvements, as stated in his affidavit. This is on the theory that he made the expenses after December 31, 1891, in the belief that his title was perfect. It is denied that they were made after that date. If made at the time he says, he knew then that it had been determined in an action at law against him by the State that he had no title, and it can hardly be said that, under the circumstances appearing in the case, he had a right to suppose that the relator would acquiesce in the action of the Comptroller upon December 30, 1891. Beyond this it is quite apparent from the affidavit of Mr. Turner himself that the improvements described by him were and are of no benefit or use to the relator or the State for the purposes of its forest preserve, but, on the contrary, detrimental to it. The State has received nothing by reason of such expenses. I fail to see any good reason for our considering those expenses upon the subject of restitution.

The amounts paid by Turner on May 18, 1886, and December 27, 1887, for redemption from tax sales of 1881 and 1885, stand on a different basis. The deed to the State upon the tax sale of 1877, which is restored by a reversal of the determination in question, was given prior to such tax sales. If the deed was good and operative the State, upon the sales in 1881 and 1885, was selling its own property, and Turner by redeeming got nothing.

We, therefore, reach the following conclusions :

The determination of the Comptroller should be reversed, with, costs, unless, within sixty days after the entry of the judgment herein and service of a copy thereof on the defendant’s attorneys, the defendant’s attorneys file with the clerk of this court, for delivery as directed by the court, and serve on the attorneys for relator, an instrument or instruments duly executed, which shall operate to transfer and restore to the State any and all right or interest which it parted with by reason of the transfer of the certificate of the 1890 tax sale, or any conveyance thereunder.

In case such instruments are so filed and served, then such reversal is made upon the condition that, within ninety days after the filing and service of said instruments, the relator deposit or cause to be deposited in court, subject to the order of this court, for the benefit of said Benton Turner or his assigns, the said sum of $9,538.21, with interest thereon to the time of such deposit. Also the said sums of $1,306.30 and $1,124.61, with interest from their respective dates of payment, less the said three judgments.

Upon such deposits being made, then the said reversal shall be absolute, and the instrument or instruments above referred to shall be delivered to the relator for the State, and the said moneys shall, upon application, be paid to said Turner or his assigns.

In case such deposit is not made within said time, or such further time as may be given by this court upon proper application at the foot of the judgment, then the writs of certiorari shall be quashed.

All concurred.

Judgment ordered in accordance with opinion, to be settled before the court upon notice.