206 N.Y. 39 | NY | 1912
Thè relators were the owners of a lot of land in Westchester county which was sold in November, 1859, by the comptroller for default in the payment of taxes for the year 1855. Pursuant to such sale, in June, 1862, the comptroller made a conveyance of the premises to one Kidder, the assignee of the tax purchaser, the deed being recorded in the office of the *41 register of Westchester county in November, 1863. The description of the property sold as stated in the conveyance is: "The following tract, piece or parcel of land situated in the County of Westchester, viz.: One-fourth of an acre of land to be laid out at the expense of the party of the second part being lot No. 66 in the village of Unionport, which said described piece or parcel of land was sold by the said Comptroller at the said sale."
In July, 1911, under the provisions of section 140 of the Tax Law, the relators applied to the comptroller to cancel said tax sale and deed, and to receive the amount of the tax with interest, on the ground that the sale and deed were void because (1) the premises were imperfectly described in the assessment roll; (2) no entry was ever made on the said real property under the alleged sale; (3) more than thirty years have elapsed since the sale took place, and all rights of action under it had been barred; and (4) that the description of the premises in the deed was so indefinite and insufficient as to render the deed void. The comptroller refused to comply with the demand and thereupon the relators applied for a writ of mandamus directing that officer to take the action sought. No notice has been given to the tax purchaser or his successor in title of either the application to the comptroller or of the application for the writ of mandamus.
We think the application was properly denied. The statute (Cons. Laws, ch. 60, sec. 140) provides: "The comptroller shall not convey any lands sold for taxes if he shall discover before the conveyance that the sale was for any cause invalid or ineffectual to give title to the lands sold; but he shall cancel the sale and forthwith cause the purchase money and interest thereon to be refunded out of the state treasury to the purchaser, his representatives or assigns. * * * If he shall not discover that the sale was invalid until after a conveyance of the lands sold shall have been executed he shall, on application of any person having any interest *42
therein at the time of the sale, on receiving proof thereof, cancel the sale, refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money and interest thereon." As this statute existed until 1896 its purpose was plain. It was to provide a method whereby the tax purchaser, in case a tax sale was ineffectual to give him any title to the land sold, should receive from the state a return of the money paid by him with interest and the sale be canceled. In that proceeding no party was interested except the state and the tax purchaser, and the former owner of the land had no standing to apply for a cancellation — the statute being in no respect enacted for his benefit. So this court uniformly held. (Peopleex rel. Wright v. Chapin,
The statute does not require any notice of the application to the comptroller to be given to the tax purchaser, nor do I see how any such requirement can be read into it. If, however, that were possible, as already stated, no such notice has been given. That the tax purchaser's title cannot be affected by any proceeding of which he is not given notice is too clear to require discussion. The relators state in their petition that the record of the tax deed is a cloud on their title and that the object of the proceeding is to remove it. When in an action to remove a cloud on title a court of equity decrees that the instrument *43
complained of is void, that concludes the parties and thereafter no right can be asserted under the instrument. The very object of such an action is to bar the hostile claim. If the comptroller had acquiesced in the relators' demand and declared the tax sale and deed void, the cloud, if any, on the relators' title would have been just as dense as it was before the application was made, and their title no more marketable. The comptroller could not annul the record of the deed in the register's office. The only effect of canceling the record of the sale in the comptroller's office would be to mislead purchasers of the property who might search in his office to see if the lands were free from the liens of taxes and tax sales. An application similar to the one we are now considering was before the Appellate Division of the first department in the case of Peopleex rel. National Park Bank v. Metz (
I think the learned judge was led into error against his his own better judgment by a mistaken view of what had been decided by this court. In Matter of Clementi v. Jackson (
I have found no case in which the cancellation of a tax deed has been commanded in a proceeding to which the tax purchaser was not a party. The decision in People ex rel. Townshend v. Cady
(supra) was affirmed by this court (
Therefore, for the reason that the tax purchaser was not a party to this proceeding, the application was properly denied. These views render the amendment of the Tax Law in 1896 inapplicable to conveyances made before that time. As to subsequent conveyances, a different rule may obtain, for a purchaser on those sales must take his title subject to just such limitations and conditions as the legislature has prescribed.
I think also that the writ of mandamus was properly denied for the laches of the relators. (People ex rel. Millard v.Chapin,
The order appealed from should be affirmed, with costs.
GRAY, WERNER, HISCOCK, CHASE and COLLIN, JJ., concur; WILLARD BARTLETT, J., absent.
Order affirmed. *46