126 Misc. 642 | N.Y. Sup. Ct. | 1926
On the 10th day of November, 1794, letters patent were issued in the name of the People of the State of New York to Cornelius Glen, Barent Bleecker and Abram Lansing, embracing a tract of 89,297 acres of land in the county of Montgomery. The lands in question are a part of that grant. At that time Montgomery county embraced the territory now included in the county of Fulton. By chapter 332 of the Laws of 1838 Fulton county was erected and the lands which are the subject of controversy here are located within the bounds of that county.
The patentees subdivided the tract of land allotted to them into great lots, each great lot consisting of 1,000 acres. In turn, the great lots were again subdivided into 100-acre tracts. The defendant claims title to the lands in question by mesne conveyances extending to the original patentees.
On September 17, 1864, Jonathan W. Wheeler acquired title to subdivision 4 of Great Lot 61. By a deed acknowledged on September 17, 1866, and recorded in the Fulton county clerk’s office on
It is the contention of the defendant that the tax sale and the deed based thereon were void on jurisdictional grounds because the lands sold were assessed as non-resident when in fact they were resident lands, and further because at the expiration of the equity of redemption the lands were actually occupied and no notice was given' to the occupant, and that proof of service of such notice was not recorded with the deed.
The answer of the State is that by reason of the operation of the Statute of Limitations set forth in section 132 of chapter 908 of the Laws of 1896, all defects, if any, in connection with the assessment and sale are now unavailing to the defendant and that there was no occupancy of the premises in question at the time of the expiration of the equity of redemption within the meaning of the provisions of the Tax Law.
At the time of the sale the statute (Laws of 1855, chap. 427, as amd. by Laws of 1860, chap. 209) provided (§ 68) that upon a sale of land for taxes and a conveyance thereof by the Comptroller, if in the actual occupancy of any person at the expiration of the two years given for redemption, “ the grantee to whom he same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, within two years from the expiration of said time to redeem; stating in substance, the sale and conveyance, the person to whom made, and the amount of the consideration money mentioned in the conveyance, with the addition of thirty-seven and one-half per cent on such amount, and further addition of the sum paid for the deed; and stating, also, that unless such * * * shall be paid into the treasury for the benefit of such grantee, within six months after the time of filing in the comptroller’s office of the evidence of the service of the said notice, that the said conveyance will become absolute, and the occupant * * * barred from all right or title thereto. Any [and] no conveyance made in pursuance of this section shall be recorded, until the expiration of such notice, and the evidence of the service of such notice shall be recorded with such conveyance.”
Sections 72 and 73 of the same chapter are as follows:
“ § 72. In every case of actual occupancy, the grantee, or the person claiming under him, in order to complete his title to the land con
“ § 73. If the comptroller shall be satisfied by such copy and affidavit that the proper notice has been duly served, and if the moneys required to be paid for the redemption of such lands shall not have been paid, as hereinbefore provided, he shall, under his hand and seal, certify such facts, and the conveyance before made shall thereupon become absolute;, and the occupant, and all others interested in said lands shall be forever barred of all right and title thereto.”
There was no material change in the Tax Law up to the time in question. Section 65 of chapter 427 of the Laws of 1855, as amended, refers to a conveyance which is directed to be executed by section 63 of the same act. Section 83 of the original Revised Statutes of 1828 (1 R. S. 412) required that- a notice should be served upon the occupant if the premises were occupied at the time of the execution of the tax deed. Section 1 of chapter 108 of the Laws of 1830 provided that if lands were occupied at the end of the two-year redemption period, the purchaser at the sale must serve upon the occupant the notice required by section 83 above referred to. Section 86 of chapter 298 of the Laws of 1850 provided for a notice to occupants at the end of the redemption period of two years and in its last section expressly repeals chapter 108 of the Laws of 1830 except as to taxes assessed prior to 1849. The necessity, therefore, for service of the notice upon the occupant at the time of the conveyance has not existed since 1850.
The first curative statute is found in section 65 of chapter 427 of the Laws of 1855. That act contained no Statute of Limitations.
Chapter 448 of the Laws of 1885 amended section 65 of chapter 427 of the Laws of 1855 (as amd. by Laws of 1860, chap. 209) and contains provisions for making conveyances conclusive and also has a Statute of Limitations.
Chapter 711 of the Laws of 1893 repeals section 65, as amended, but re-enacted the same, with few changes, as two sections numbered 11 and 12.
Chapter 908 of the Laws of 1896 re-enacted, with few changes, sections 11 and 12 and renumbered them sections 131 and 132 and as such they are contained in the present Tax Law.
For all purposes necessary to be considered here, the present Tax Law (§§ 132-134) are the same as they were in the act of 1896.
Section 132 of the Tax Law provides that every such conveyance,
1. By reason of the payment of the taxes;
2. By reason of the levying of the taxes by a town or Ward having no legal right to assess the land, and
3. By reason of any defect “ in the proceedings affecting the
jurisdiction upon constitutional grounds, on direct application to the comptroller, or in an action brought before a competent court therefor; provided, however, that such application shall be made, or such action brought, in the case of all sales held prior to the year eighteen hundred and ninety-five, within one year from June fifteen, eighteen hundred and ninety-six: * * * ”
Section 133 of the present Tax Law, which is exactly identical with section 13 of chapter 711 of the Laws of 1893, reads as follows:
“ The comptroller may advertise once a week, for at least three weeks successively, a list of the wild, vacant and forest lands to which the state holds title, from a tax sale or otherwise, in one or more newspapers to be selected by him, published in the county in which the lands are situated, and from and after the expiration of such time, all such wild, vacant and forest lands are hereby declared to be and shall be deemed to be in the actual possession of the comptroller, and such possession shall be deemed to continue until he has been dispossessed by the judgment of a court of competent jurisdiction.”
Presumably the notice published by the Comptroller commencing on December 11, 1894, and ending on December twenty-fourth of the same year, relating to these lands, was in compliance with that section. This act was intended to furnish a remedy to the landowner against the State. It was a consent by the State that it might be sued. (Saranac Land & Timber Company v. Roberts, 195 N. Y. 303; People v. Ladew, 237 id. 413.)
Section 134 of the present Tax Law provides, in substance, that if the lands or any part of them at the time of the expiration of one year given for the redemption be in the actual occupancy of any person, the grantee to whom the same shall have been
According to the provisions of the Tax Law land must be assessed to the resident and the tax levied creates a personal liability against him. If the land is owned by one not a resident of the tax district or if if is unoccupied, or if the occupant does not reside in the tax district, it must be assessed as non-resident land, in Which event, there is no personal liability for the payment of the tax imposed, but the lien is upon the land.
The evidence convinces me that in the year 1866 when the premises in question were assessed as non-resident lands Jonathan W. Wheeler, who was then either the sole owner or the owner of an undivided half interest with Claflin, was a resident and a voter of the town of Caroga. It is not disputed that he came there in 1865 and was a resident of the town as late as 1873. The assessors of the town of Caroga assessed this identical land against Wheeler & Claflin as resident owners in connection with thousands of other acres in the same tract for the year 1865. From 1867 to 1883 the same premises were assessed as resident lands either in the name of Wheeler, or Wheeler & Claflin, or Claflin, or the resident owner or the resident agent as the case might be. Not only were such assessments made throughout all these years but the taxes were actually paid. Unquestionably the assessors recognized the fact that all of the Wheeler & Claflin lands Were resident lands for the purpose of assessment. They evidently intended to assess them as such. When the assessment was made against the premises embraced within subdivision 4 of Great Lot 61 as non-resident lands in 1866, the assessors apparently were under the impression that they were not assessing the Wheeler & Claflin tract. The action of the assessors in assessing these identical premises against Wheeler & Claflin as resident owners for all other years from 1865 to 1883
In People ex rel. Barnard v. Wemple (supra) the lands were assessed to a non-resident owner when they should have been assessed to "a resident occupant. The Comptroller attempted to relevy the tax, basing his action on chapter 453 of the Laws of 1885. In holding that he was without authority to do this, the court said: “ We are assured that the act is a curative statute. That may well be said of it as we have construed it, but it is impossible to cure what never had life enough to be sick. There never was any assessment against the occupants, and nothing to be cured.” It seems to me, therefore, that the assessment in question was absolutely void.
The land in question was sold on the 12th of October, 1877, and according to the published notice of the Comptroller the last day for redemption expired on the 18th of October, 1879. There is a dispute here as to whether or not the lands were then occupied. The State contends that there was no such occupancy and concedes that no notice to redeem was given and that no proof of service thereof was recorded with the conveyance.
In determining whether or not the land was occupied it should be kept in mind that these premises were a part of a great tract of many thousands of acres owned by Wheeler & Claflin. There is abundant evidence in the record that from 1869 to 1889 Wheeler & Claflin, the defendant’s predecessors in title, were operating tanneries, factories, and conducting lumbering operations upon the lands owned by them and comprising the tract in question. The
Because no notice to redeem was served on the occupant and
The learned counsel for the People urges that the Statute of Limitations in section 132 of the Tax Law bars the defendant from the assertion of any claim of title here. That section provides, in substance, that every conveyance executed by the Comptroller which has for two years been recorded in the office of the clerk of the county in which the lands conveyed thereby are located “ shall be conclusive evidence that the sale and proceedings prior thereto, from and including the assessment of the lands, and all notices required by law to be given previous to the expiration of the time allowed for redemption, were regular and were regularly given, published and served according to the provisions of all laws directing and requiring the same or in any manner relating thereto, but all such conveyances and certificates, and the taxes and tax sales on which they are based, shall be subject to cancellation, by reason of the payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid, or by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the Comptroller, or in an action brought before a competent court therefor; provided, however, that such application shall be made, or such action brought, in the case, of all sales held prior to the year eighteen hundred and ninety-five, within one year from June fifteenth, eighteen hundred and ninety-six * * *.”
In construing this section in People v. Witherbee (supra) Mr. Justice Van Kirk said: “ Provisions similar to section 132 have been in our statutes for many years and have been frequently under consideration of our courts. It has been held that the provisions may have effect as curative acts and as limitation statutes. As curative acts they avoid irregularities only. As a limitation they cannot be effective, except when the claimant has had an opportunity to assert his claim in court. It has not yet been held that one who is in actual possession as owner, and is enjoying all the property rights he could enjoy, if his lawful ownership had been adjudged in court, need bring an action or his right would be forfeited by statute.”
The recording of the tax deed in the case at bar is of no avail. Recording such a deed without proof of the service of the notice on the occupant expressly required to be recorded with the conveyance is precisely the same as though it had never been placed on the record book. (Matter of Morse, 189 App. Div. 803; People v. Inman, 197 N. Y. 200.)
The publication of notice by the Comptroller during the month of December, 1894, that he was in possession of the premises in question confers no rights on the State. That notice referred to “ wild, vacant and forest lands located in the county of Fulton, to which the state holds title.” Lands occupied in good faith by one claiming to own them are not within the statute. Wild, vacant and forest lands are within the statute only when the State holds
It is the general rule of law, well settled by authority, that the plaintiff in ejectment must succeed on the strength of his own title, not on the weakness of the defense. (People v. Inman, supra; Chamberlain v. Taylor, 105 N. Y. 185.) The State has failed to establish any title to the lands in question.
The complaint should be dismissed on the merits and the tax sale and deed founded thereon declared null and void and said deed canceled of record.