223 A.D. 626 | N.Y. App. Div. | 1928
Lead Opinion
This action was brought to set aside two mortgages owned by the respondent as clouds on the appellant’s title to about eighty acres of farm land in the town of Johnstown, county of Fulton in this State.
On November 18, 1914, Minnie A. Witherhead gave to the appellant a warranty deed of this property which was duly recorded in the Fulton county clerk’s office on January 12,1915. In December, 1920, the State Comptroller sold said property for non-payment of taxes levied prior to the year 1916. The sale was made to Fay C. Baker of Gloversville. On the assessment roll for 1915 the prop, erty appeared in the names of George H. and Minnie A. Witherhead. The year given by statute (Tax Law, § 127) for the redemption of the property from said sale expired December 22,1921. Within the year from the expiration of the time to redeem, it seems that Baker served notice of the tax sale on George H. Witherhead. No notice was served on the appellant. There having been no redemption, the State Comptroller deeded the premises to Fay C. Baker. Baker conveyed the land to one Alfred Allen, On March 3, 1924, Allen
Assuming that the appellant held the record title to the property at the time of the assessment, which does not clearly appear, the tax sale was valid even though the property was assessed to George H. and Minnie A. Witherhead. “ In all cases the assessment shall be deemed as against the real property itself, and the property itself shall be holden and liable to sale for any tax levied upon it.” (Tax Law, § 9, as amd. by Laws of 1911, chap. 315; re-enacted as amd. by Laws of 1916, chap. 323.) “ The entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll.” (Tax Law, § 55-a, as renum. re-enacted and amd. by Laws of 1916, chap. 323, being formerly § 63, as amd. by Laws of 1911, chap. 315. See, also, Smith v. Russell, 172 App. Div. 793, 797.)
The tax deed to Baker is made, by the statute, “ presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions of law relating thereto.” (Tax Law, § 131.) The burden of proof was on the appellant to show that the land was “ occupied ” and that he was the person upon whom, as “ occupant,” it was necessary to serve notice of the tax sale, pursuant to section 134 of the Tax Law. (Wells v. Johnston, 55 App. Div. 484, 486; Cary v. Given, 144 id. 221, 224.) Said section 134 provides that if any lot or separate tract of land sold for taxes shall, “ at the time of the expiration of one year given for the redemption thereof, be in the actual occupancy of any person,” the grantee shall serve a written notice on the person occupying such land.
The year for redemption in this case expired December 22, 1921. The appellant resided on a farm near Ogdensburg, about 170 miles distant from the property. He testified that he visited the farm in question in 1916 and again in 1923, Apparently he never lived
The proof falls far short of establishing that the appellant was the “ occupant ” of the farm and entitled to written notice to redeem. Indeed there is a lack of proof that the farm was occupied at all at the time of the expiration of the redemption year or for years prior or subsequent thereto. The term “ occupant,” as defined in section 134 of the Tax Law, means “ a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person.” And, as defined by the same section, the term “ occupancy ” means “ the actual lawful and exclusive use and possession of such lands and premises by such an occupant.” Moreover, by a long line of decisions an “ occupant ” under the Tax Law has been held to be one who has been in “ actual possession as distinguished from legal possession.” (People ex rel. Turner v. Kelsey, 96 App. Div. 148, 149; revd., on other grounds, 180 N. Y. 24.) The appellant contends, however, that section 134 of the Tax Law has been amended since the facts arose which were involved in the decision in People ex rel. Turner v. Kelsey (supra) and cases cited therein, and refers to Laws of 1902, chapter 171 (amdg. Tax Law of 1896, § 134), by which the following provision was added to said section and continued in section 134 of the present Tax Law as follows: “ If the occupant does not reside in the tax district in which the real estate is situated the notice may be served by mail in the manner required by law in respect to notices of nonacceptance or nonpayment of notes or bills of exchange. Service on one joint tenant or tenant in common shall be service on all the joint tenants or tenants in common. Service on a tenant shall be service on
During the trial the appellant offered in evidence judgment rolls in certain ejectment actions which he had brought against Alfred Allen and certain grantees of Allen, involving the premises in question. The appellant had been permitted to enter judgment in his favor in each of these actions, upon stipulation and without trial. The respondent Ort was not a party to any of these actions and there is no proof that he knew anything about them. The judgments in such actions do not bind the respondent and cannot avail to cut off his rights as the bona fide holder of mortgages for value executed prior to such ejectment proceedings.
The appellant has not raised any other issue upon this appeal except the refusal of the court to make certain findings in conformity with the contentions of the appellant already considered. The requested findings were properly refused and the dismissal of the complaint was properly ordered.
The judgment should be affirmed, with costs.
Van Kirk, P. J., and Whitmyer, J., concur; Davis, J., dissents with an opinion in which Hill, J., concurs.
Concurrence Opinion
(concurring). The words in the Tax Law (§ 134) which have occasioned difference of opinion are: “If the occupant does not reside in the tax district in which the real estate is situated the notice may be served by mail * * *.” It is said that the word “ may ” is the equivalent of “ shall,” and “ occupant ’’ means “ owner.” I cannot think so.
If “ occupant ” means “ owner,” why did the Legislature fail to so declare? And why did it fail to change the definition of “ occupant,” and “ occupancy,” in this section? These definitions do not correctly describe an. owner, The statute still requires the
It is claimed that the owner of the legal title is in constructive possession, and thus when land is not physically occupied by any one the owner is the actual occupant. If this be true, except in case of State lands, there would be no lands in the State which are not actually occupied; and notice would have to be served in every case. This the statute has never required. Also constructive excludes the actual.
I note that in the Tax Law, unless in the words quoted, no notice is required to be served upon a non-resident owner. Notices by the collector are given by posting in five conspicuous places in the tax district, and no other notice is required. (Tax Law, § 69, re-enacted as amd. by Laws of 1916, chap. 323.) The statute, however, gives some protection against default in payment of taxes to such owner. Under sections 69 or 69-a and 70 (as amd. added and re-enacted by Laws of 1909, chap. 207; Laws of 1916, chap. 323, and Laws of 1923, chap. 549), he may acquire information where and when to pay his taxes and the amount thereof.
The notice to redeem must be given by the Comptroller’s grantee, but the grantee has no reasonable means of learning the name and address of the owner. The assessment roll will not inform him. The tax is against the land and not the owner. The Legislature could hardly have intended that the grantee must seek through the intricacies of title records to learn who is the owner. Yet if he must serve the non-resident owner by mail and fails to do so, his title is forever void.
The word “ may ” is permissive, not mandatory. There is a reason for permitting service by mail. - The redemption notice must be served within one year after the expiration of the redemption period. The lands may have been actually occupied at the end of the redemption period, and may have been vacated immediately thereafter. Yet the statute is mandatory that the redemption notice must be served upon the person actually occupying at the expiration of the redemption period, “ either personally or by leaving the same at the dwelling-house of the occupant.” So if the person who was occupying has become a non-resident when the notice is to be served, the statute now permits that the notice be served on him by mail.
Hinman and Whitmyeb, JJ., concur.
Dissenting Opinion
(dissenting). Ás to the questions at issue the-evidence in this case is meager both in volume and in facts. It appears that
George did not occupy the farm but resided elsewhere. This arrangement for management was discontinued at a date not given. The plaintiff did not return to the farm between 1917 and 1923, and did not know whether it was cultivated during that period. Except possibly as occupied at times by croppers, the farm seems to have been vacant.
In December, 1920, the farm xyas sold by the Comptroller for non-payment of taxes levied prior to the year 1916. It seems that the property was treated by the tax officials as belonging to George H. Witherhead, and notices were served on him. No attempt was made to give notice to plaintiff, who held title and was at least in constructive possession. (Wainman v. Hampton, 110 N. Y. 429.) • No one claims that the premises were occupied by George H. Witherhead. A subsequent grantee of the purchaser on the tax sale gave a mortgage on-the premises to defendant. Judgment has heretofore been entered ejecting the mortgagor from the premises.
Owners may be deprived of title by the sale of land for unpaid taxes. (Tax Law, arts. 6, 7.) But there must be substantial compliance with the procedure prescribed before the owner is completely divested of his title. He or an occupant may redeem after sale (Tax Law, § 127); and if there be actual occupancy by any person, written notice must be given to the occupant. (Id. § 134.) In the last section cited it is provided: “ * * * If the occupant does not reside in the tax district in which the real estate is situated the notice may be served by mail in the manner required by law in respect to notices of nonacceptance or nonpayment of notes or bills of exchange. Service on one joint tenant or tenant in common shall be service on all the joint tenants or tenants in common. Service on a tenant shall be service on his landlord. The term ‘ occupant ’ shall be construed to mean a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person. And the term ' occupancy ’ shall mean the actual lawful and exclusive use and possession of such lands and premises by such an occupant.. * *
Was • the plaintiff an occupant? He had title, had lawfully
Early conceptions of “ occupation ” have broadened. Formerly it meant actual physical occupation. Now it may mean the possession .by right of ownership though the lands be vacant. (People v. Ladew, supra, 433.) I think the amendment made to section 134 of the Tax Law of 1896 by chapter 171 of the Laws of 1902, which has been continued in section 134 of the present Tax Law, has regard for the more liberal definition of “ occupant ” and “ occupancy,” for it assumes that the occupant may not reside in the tax district in which the real estate is situated. He could not well reside without the tax district and be in physical occupation of lands that were vacant, so some other form of occupancy must have
The record contains no findings signed by the court nor does there appear to have been a motion for a nonsuit or for dismissal of the complaint. It is difficult to determine upon what theory the judgment was entered. The record is too barren of essential facts to permit new findings to be made by this court. I think there should be a new trial. I favor reversal.
Hill, J., concurs.
Judgment affirmed, with costs.