141 N.Y. 422 | NY | 1894
The plaintiff in this case sought relief against a sale of his land for taxes. The defendant purchased the land at the sale and received a conveyance from the county treasurer pursuant to chapter 620 of the Laws of 1873. The form of the action was to set aside the deed as a cloud upon the plaintiff's title, and as the deed is, by the ninth section of the statute, made conclusive evidence that the sale was regular, and presumptive evidence that all prior proceedings were regular according to the provisions of the act, an equitable action will lie if the proceedings are in fact void. (Dederer v. Voorhies,
The assessment by the town assessors, which is the foundation of all the proceedings, was made in 1882, and the only question is whether that was valid to confer jurisdiction upon the board of supervisors to levy the tax upon which the sale was made. There is no dispute with respect to the facts and the question is purely one of law. The defendant was not a resident of the town where the lands were situated, nor of the county the authorities of which assumed to collect it. The lands, therefore, could be charged only under the provisions of the statute for the assessment of the lands of non-residents. They were unoccupied, and while the lands were taxable, no one could be subjected to a personal charge, as the assessors had no jurisdiction of the person of the owner not residing in the town. It is essential to the validity of every assessment for the purposes of taxation that the statute, under the authority of which it is made, is complied with in every substantial particular. The only warrant for the imposition of a tax or burden upon the citizen or his property without his consent, must be found in some positive law, and it cannot be *425
enforced unless imposed in the manner pointed out by the statute. The duties and powers of assessors in making up the assessment roll of the town, which is to be the basis of taxation, are clearly pointed out by statute and must be followed. (2 R.S. [8th ed.] p. 1097.) They have jurisdiction of both the person and the property of every resident of the town, and in such cases the entry of the name in the first column of the roll, in legal effect, signifies that the person and the property have been charged. They have also jurisdiction of the real property within their town of non-residents, but in such cases the statute forbids the insertion of the name of the owner in the first column among the taxable inhabitants of the town for the reason that the tax does not constitute a personal charge. The statute requires that a description of the lands be entered in the second column and the value in the next, and assessments against non-residents must be separated from the other assessments, though in the same roll. (§§ 12, 13.) All these provisions of the statute were complied with by the assessors, in making the assessment in question, except that the name of the plaintiff has been inserted in the first column of the roll as the owner of the land that was assessed and has been sold. True, his name appears under the head of non-residents, and his place of residence is written under the name in the first column, which plainly shows that he resided in another county. The assessors doubtless intended to assess the plaintiff's lands only, but the question is whether they have not, in fact, subjected him to a personal charge, and if they have, the assessment is void. We have not overlooked the fact that in the warrant delivered by the supervisors to the town collector of taxes, they have commanded him to collect the tax from the persons whose names are inserted in the first column of the roll by distress and sale, "otherthan such persons as are named as a part of the description ofthe lands of non-residents described therein." There certainly can be no objection to the insertion of the name of the non-resident owner of lands in the second column for the purpose of describing or identifying the lands, and in many cases that may be necessary. *426
But the difficulty with this assessment is that it was made in such form as to leave it open to doubt, at least, whether the plaintiff's name is in the first column as a part of the description of the land, or for the purpose of including him among the taxable inhabitants. Had the name been inserted in the second column, with the description, the assessment would, no doubt, be entirely valid. But to hold that the assessment, as actually made, is a substantial compliance with the statute, we would be obliged to rest the proposition upon the uncertain and somewhat arbitrary inference that the name in the first column is part of the description of the land. The case is, doubtless, what may be termed a border one, and the deviation from the express directions of the statute providing for the manner of imposing taxes in such cases may appear to be slight, but the judgment below is sustained by the decisions of this court in cases that differ in no important element of fact from this. (Stewart v.Crysler,
The judgment should, therefore, be affirmed.
All concur.
Judgment affirmed. *427