197 N.Y. 200 | NY | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *202 The action is ejectment to recover possession of a piece of land known as Pine Island, in Raquette lake, Hamilton county. The complaint is in the ordinary form, alleging that the plaintiff is the owner and entitled to the possession of the land, and that the defendant unlawfully entered thereon and withholds the possession thereof. The answer states two defenses: 1st. A general denial of plaintiff's title. 2nd. Adverse possession by the defendant for more than forty years.
In support of its title the plaintiff put in evidence three deeds from the comptroller of the state made on tax sales of property which it is claimed embrace the premises in controversy: 1. Deed dated Feb. 1, 1875, made in pursuance of a sale held in 1871 for unpaid taxes of the years 1861 to 1865, inclusive. 2. Deed dated August 10, 1881, made in pursuance of a sale held in 1877 for unpaid taxes of the years 1867 to 1869, inclusive. 3. Deed dated Oct. 31, 1884, made *204 pursuant to a sale held in 1881 for unpaid taxes of the years 1871 to 1873, inclusive. At the commencement of the trial the parties entered into this stipulation: "Defendant admits that he is now and has been many years in the possession of the Island or premises described in the complaint, and was so in possession of the same at the commencement of the action." The defendant gave no proof of title, nor evidence that he entered under a claim of title. The referee held that the tax sales were void and for that reason directed judgment in favor of the defendant.
We think that the certified copies of the deeds in the office of the comptroller were sufficient to show their record in the county of Hamilton, especially as when they were offered in evidence with indorsements thereon stating that they had been recorded in that county, no objection was made by the defendant that to prove the record there should have been another certificate by the county clerk. The statute (L. 1885, ch. 448) provides: "All such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto." This statute may operate not only as a curative statute, but also as a Statute of Limitations. (Meigs v.Roberts,
At the second and third tax sales the lands were withdrawn from public bidding and were bought in by the state for the unpaid taxes on the theory that they were already the property of the state. If the deed under the first tax sale conveyed title to the state, it was not necessary for the plaintiff to rely on the deeds given on the second and third sales. But if, on the contrary, the first deed transferrred no title to the state, the subsequent sales were void because of the withdrawal of the lands from public competition. (Saranac Land Timber Co. v.Roberts, supra.) Therefore, the plaintiff's title must rest solely on the first tax sale. The referee held that sale void for defects in the imposition of the taxes for which the sale was made. The learned counsel for the appellant strenuously argues that the defendant was in no position to attack the validity of the plaintiff's deed, and many authorities are cited in support of that claim. These authorities are misunderstood. It is the general rule of law, well settled by the authority of the decided cases and of the text writers, that the plaintiff in ejectment must succeed on the strength of his own title, not on the weakness of the defendant's. (Chamberlain v. Taylor,
Many defects in the imposition of the taxes for the non-payment of which the premises were sold in 1871 were found by the referee. Of these it is only necessary to allude to two, which occurred in the taxes of two different years. When the state proceeds at one time to sell for unpaid taxes, some of which are valid and others invalid, the title of the owner is not thereby divested. (Nehasane Park Assn. v. Lloyd,
That the facts found as to the action of the board of supervisors in levying the taxes of 1863, 1864 and 1865 also rendered the taxes for those years void seems to be equally well settled. In Bellinger v. Gray (supra) it was held that where the board of supervisors attached their warrant to the assessment roll before its completion, by inserting and extending the tax, and then delivered it to the collector with directions to collect the tax, the assessment roll and warrant were void. The same doctrine was held in Davis v. Read (
There remains to be considered the question whether the record of the deed under the statute of 1885 (Ch. 448), operating solely as a curative act, was effectual to confer title on the plaintiff. It is doubtless within the power of the legislature by subsequent statutes to cure defects after a sale for *209
unpaid taxes has been made, as well as those in the imposition of a tax itself (Ensign v. Barse,
These views dispose of this appeal. There is in the case an interesting question, whether the exception in the description in the tax deed is void for indefiniteness, or, if valid, whether the proof was sufficient to show that the land occupied by the defendant was not within the exception. Upon this question we need express no opinion.
The judgment appealed from should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment affirmed. *210