295 N.Y. 145 | NY | 1946
The plaintiff, Louis J. Selzer, was the owner and occupant of a parcel of land in the town of Hamilton in Madison County consisting of some 160 acres. The property was assessed to him. It was sold for unpaid taxes of the year 1939 on the 17th day of October, 1940. The purchase at the tax sale was made by one Baker and the County Treasurer delivered to him a tax deed of the property on November 15, 1941. Had Baker taken no steps thereafter, title in him would have been complete on October 16, 1943. (Tax Law, § 137; Mabie v. Fuller,
"THIS IS TO CERTIFY that a Notice and Affidavit showing service thereof on the 7th day of April, 1943, was filed in the Madison County Treasurer's Office, on the 6th day of May, 1943. Said notice and affidavit were filed for the purpose of complying with Section 134, of the New York State Tax Law with reference to the property described in this deed.
A.J. WHITE, County Treasurer, Madison County."
Thus under the notice as given by Baker, the plaintiff had until November 6, 1943, to redeem his property, which was some twenty-one days more than three years after the date of sale. Sometime in August or September, 1943, the plaintiff went with the notice to the office of the County Treasurer, who examined the records and advised him that proof of service of the notice had been filed and that he had until November 6, 1943, to redeem his property. On October 26, 1943, the plaintiff paid to the County Treasurer the sum specified in the notice served by Baker as the amount required to redeem, plus interest, and the County Treasurer issued to him a redemption certificate. In March of 1944, the plaintiff demanded of his wife that she reconvey the property to him. Upon her refusal, this action was brought to have the tax deed to Baker, as well as the quitclaim deed from him to the defendant Mary B. Selzer, declared void and to have the record of them canceled. The County Treasurer has issued a check to the defendant Selzer for the money paid by her to Baker and it is in her possession uncashed.
The complaint was dismissed as to Baker, and no appeal has been taken. *149
The question presented to us for our determination is whether, as between the plaintiff and Baker, a period of redemption was created different from the one provided by the Legislature. As a general rule a party may waive a statutory or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and cannot afterward invoke its protection. (Vose v. Cockroft,
Under the circumstances disclosed here, the defendant Selzer stood in no better position than Baker. The certificate of the County Treasurer was attached to the tax deed. The fact that the notice filed in the County Treasurer's office was unsigned is of no moment. The notice as filed showed that the redemption period had been extended by Baker until November 6, 1943.
The judgments should be reversed and a new trial granted, with costs to abide the event.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and MEDALIE, JJ., concur.
Judgments reversed, etc.