100 N.Y. 378 | NY | 1885
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *382
The duty of assessors in subjecting real estate to taxation is prescribed by the statute, which carefully bounds and restricts their jurisdiction. (2 R.S. [7th ed.] 989, §§ 1, 2, 3.) Before the amendment of 1878 (Chap. 152), the proper construction of the enactment had been determined in this court. (Buff. State LineR.R. Co. v. Supervisors of Erie Co.,
It is proven in this case that the plaintiff is the owner of the land assessed, and is a non-resident of the State; that the land was actually occupied by one Savage, who resided in the town, using the lot in question for the storage of lumber. It follows that the sole jurisdiction of the assessors was to value the land against the resident occupant and so initiate a charge upon him personally. They had no jurisdiction to value the lands as against the owner, since he was a non-resident, nor could they be assessed as non-resident lands since they were not unoccupied. (2 R.S. [7th ed.] 989, § 3.) Now, no assessment was made against the occupant which alone was lawful. On the *384 contrary, the lands were valued against the plaintiff by name and as owner, and so a charge upon her personally was initiated. It is true that such assessment appears in the part of the roll devoted to non-resident lands, but that cannot alter the legal effect of the assessment as establishing a personal charge. By the city charter the warrant to the collector commands him "to collect from the several persons named in the assessment-rolls the several sums mentioned in the last column opposite their respective names." Wherever in the roll there is a name with a tax opposite, that tax becomes a charge against that person, which the officer must collect of him if possible. The same mode of assessment appeared in Johnson v. Learn, (30 Barb. 618), and, while the general doctrine of that case has been made inapplicable by later amendments and decisions, its reasoning as to the effect of naming the person assessed appears to be sound. But in any event the lot here assessed could not be lawfully assessed either to the plaintiff, or as lands of a non-resident, and the assessment was equally void whichever construction should be adopted.
There was thus a void assessment against the lands of the plaintiff. The case shows a sale for non-payment of the taxes; a purchase by the defendants; the execution and delivery of a deed from the county treasurer of Onondaga county to them; and the record of such deed in the proper clerk's office. In that condition of affairs this action was brought in equity to set aside and cancel the tax deed as a cloud upon the plaintiff's title. The respondents further contend that the action cannot be maintained because, upon the plaintiff's own theory, the deed is void upon its face, and the intervention of equity is not essential. So far as this contention is sought to be supported by a claim that the time for redemption had not expired and the plaintiff might have redeemed, the answer is that she was not bound to redeem from a void assessment, and such remedy only tended to enforce and perpetuate the wrong. The Onondaga act makes the deed conclusive evidence that the sale was regular, and presumptive evidence that all the previous proceedings were regular according to the provisions of the act (§ 10). By *385
section 9 it is made the duty of the county treasurer to execute the deed if the lands are not redeemed as in the act provided, and the deed may be recorded in the same manner and with like effect as a deed acknowledged or proved. The resultant inquiry is, whether the respondents, in seeking to enforce their title, would be obliged to develop the fatal defect in the assessment. (Clark v. Devenport,
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.