Imágenes de páginas
PDF
EPUB

App. Div.]

Third Department, March, 1908.

Where a valuation was taken from an assessment roll no notice was

contemplated by the statute, and none was necessary, because in such case the owner had received due notice from the town assessors, and hence we must assume that this valuation in question so taken from the assessment roll was made by the trustees without notice. Nostatute is called to our attention, and we know of none except as above stated, which provided for any kind of notice where the valuation was ascertained otherwise than from the assessment roll of the town. In Jewell v. Van Steenburgh (58 N. Y. 85) the identical provisions above quoted for the assessment of property by school district trustees were under consideration, and it was held that the omission to give notice as therein required was a jurisdictional defect invalidating the tax and rendering the trustees liable as trespassers. In People v. Turner (117 N. Y. 234) it was also held that an omission to give notice "is a jurisdictional defect which in a proceeding between the owner and any one claiming a right in such property under a tax sale renders such sale irregular and void." In Jewell v. Van Steenburgh (supra) it was also held that there was no presumption that the trustees had given the requisite notice but that the facts conferring jurisdiction must be affirmatively proved by the trustees. Perhaps this last-mentioned principle to its full extent would not apply to the present case, but inasmuch as no notice was necessary or required when a valuation was ascertained from the assessment roll we cannot assume for the purpose of conferring jurisdiction on the trustees that they gave a notice not required or contemplated in the procedure which they adopted. It cannot be doubted that if the tax sale of 1877 by the Comptroller had been made solely for this particular tax no title would pass by a conveyance thereunder.

It is settled that when the State sells lands for unpaid taxes levied at different times, some of which are valid and others invalid, the title of one against whom the sale is made is not thereby divested. By mingling good and bad together the State cannot give a valid title to the property thus assessed. (Nehasane Park Association v. Lloyd, 167 N. Y. 437; People v. Hagadorn, 104 id. 516; Poth v. Mayor, etc., of New York, 151 id. 16.) All of these unpaid taxes now under consideration were blended together in one sum and the property was sold and bid in by the Comptroller

Third Department, March, 1908.

[Vol. 125.

for an aggregate amount without reference to the various items constituting the same.

The subsequent tax sales of 1881 and 1885 added nothing to the title which the State acquired by the sale in 1877. Section 5 of chapter 402 of the Laws of 1881, amending section 66 of the Tax Law of 1855 (chap. 427), required the Comptroller to bid in all lands then belonging to the State and to reject any other bids which might be made therefor. Apparently acting under that statute the property at the sales in 1881 and 1885 was treated as already belonging to the State and as the referee has found was bid in for the State without an opportunity for competition. (See Meigs v. Roberts, 42 App. Div. 290, 299.) Hence, the State has never acquired title to the land in question.

The appellant contends that this action is barred by the Statute of Limitations. This contention involves a consideration of chapters 283, 448 and 453 of the Laws of 1885, the two latter of which amended chapter 427 of the Laws of 1855, entitled "An act in relation to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes." Said chapter 448 of the Laws of 1885* provided so far as applicable to this action that conveyances executed by the Comptroller should six months after the act took effect "be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served," and further provided as follows: "All such conveyances and certificates and the taxes and tax sales on which they are based, shall be subject to cancellation, as now provided by law, on a direct application to the Comptroller or an action brought before a competent court therefor, by reason of the legal 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." The appellant contends that the action was barred under this statute six months after it became effective.

The answer of the respondent to such contention is that until there was a person or entity against whom or which it or its predecessors in title could maintain an appropriate action, said statute did

* Amdg. § 65.- [REP.

App. Div.]

Third Department, March, 1908.

not and could not operate to limit the time within which such action might be instituted. By said chapter 453 of the Laws of 1885 there was added to chapter 427 of the Laws of 1855 a new section 93, as follows: "From and after the advertisement, once a week for three successive weeks, of a list of wild, vacant or forest lands to which the State holds title from a tax sale or otherwise, in one or more newspapers to be selected by the Comptroller, published in the county in which such lands may be located, all of such wild, vacant or forest lands shall be deemed, and are hereby declared to be, in the actual possession of the Comptroller of this State; and such possession shall be deemed to continue until he has been dispossessed by the judgment of a competent tribunal." The respondent contends that until the advertisement thus provided for occurred there was no opportunity for the institution of an action or proceeding to test the question of title to said lands. Such advertisement was commenced in December, 1894, and within six months thereafter this action was begun.

It is undoubtedly established law that unless there is a tribunal of some kind before which a claimant may assert his rights, a Statute of Limitations does not conclude his claim. (Parmenter v. State of New York, 135 N. Y. 154; Sanford v. Sanford, 62 id. 553; City of Buffalo v. State of New York, 116 App. Div. 539.) This leads us to a consideration of the question as to what, if any, remedy was open to the plaintiff or its predecessors in title before the advertisement by the Comptroller in December, 1894.

The remedy provided by chapter 448 of the Laws of 1885 for a direct application to the Comptroller for a cancellation of conveyances and sales is not available to an owner whose property has been sold. (People ex rel. Wright v. Chapin, 104 N. Y. 369; People ex rel. Millard v. Roberts, 8 App. Div. 219; affd., 151 N. Y. 540; People ex rel. Witte v. Roberts, 144 id. 234.)

The appellant places much reliance on the cases of People v. Turner (117 N. Y. 227) and People v. Turner (145 id. 451). Those cases are clearly distinguishable from the present case so far as the school tax above discussed is concerned. The point of the decisions in those cases was that the owner had not been deprived of his day in court. Although the town assessors had failed to give him the required notice, the statute provided him a remedy by

[Vol. 125.

Third Department, March, 1908. appeal to the board of supervisors, where his grievance might have been redressed. It was held that the owner had not been deprived of his property without due process of law or an opportunity to protect and maintain his rights. He had neglected to avail himself of such an opportunity open to him by statute, and hence was concluded by another statute as the result of his own laches. In the present case, as we have already sought to demonstrate, the owner has never had an opportunity to protest against the school tax or to defend himself against the imposition thereof, or to question or attack the same. So far as the Turner cases assumed to decide that the owner might have availed himself of an application to the Comptroller for a cancellation of the sale under chapter 448 of the Laws of 1885, they must be deemed to have been overruled by the subsequent case of People ex rel. Millard v. Roberts (151 Ν. Υ. 540).

The learned counsel for the appellant further suggests that the action might have been maintained against the Forest Commission established by said chapter 283 of the Laws of 1885. That act declared as follows: "All the lands now owned or which may hereafter be acquired by the State of New York" within certain counties including Franklin, "shall constitute and be known as the Forest Preserve;" and the Forest Commission was given the care, custody, control and superintendence of and charged with certain duties in reference thereto. It is self-evident that if we are right in our conclusion that the State never acquired title to the land in question such land never became a part of the Forest Preserve and the Forest Commission was given by force of the statute no powers or duties in reference thereto. The statute only assumed to vest in the Commission control ever such lands as the State actually owned. If the Forest Commission exercised control or authority over the land in question such acts were not the acts of the State nor the acts of the Commissioners in their official capacity but their individual, unauthorized and unlawful acts not performed within the sphere of their duties as Forest Commissioners. (Litchfield v. Bond, 186 N. Y. 66.) This proposition will receive further consideration is discussing the defense of champerty herein. There are it is true enunciations in different opinions by the Court of Appeals to the effect that the Forest Commission is in the actual

App. Div.]

Third Department, March, 1908.

possession of lands in the Forest Preserve, but those statements presuppose the fact that the State had acquired title to such lands.

Even if an action might have been maintained against the Forest Commission a judgment obtained therein would not have been binding on the State. (Peck v. State of New York, 137 N. Y. 372; Sanders v. Saxton, 182 id. 477, 480, 481.)

In Corkings v. State of New York (99 N. Y. 499) it was said: "When the State, to a just claim, such as this is found to be, has no better or other defense than the Statute of Limitations, it should at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty."

That the State itself could not be made a party to any action or proceeding wherein the question could be litigated is conceded and there seems, therefore, to have been no method open to the plaintiff or its predecessors in title to institute such litigation until the Comptroller by the advertisement alluded to made the present action possible.

That such an action is properly brought against the Comptroller under said chapter 453 of the Laws of 1885, which places him in possession of lands by virtue of the statutory advertisement, was decided in the case of Meigs v. Roberts (42 App. Div. 290). That case was reversed (162 N. Y. 371), but such reversal was on points other than those on which the case has been cited in this opinion. It is said that the same reasoning might be applied to this act as to the act creating the Forest Commission and that if under the latter act the Commission is not in possession of lands not owned but only clamed by the State neither is the Comptroller in possession of such lands under the foriner act. There is no analogy between the two statutes. In their purposes and scope they are as widely divergent as the antipodes. The very purpose and the only purpose of the act placing the Comptroller in possession as pointed out by Presiding Justice PARKER in the case last above cited was to provide a method whereby the question of title might be tested and to furnish a defendant against whom an action might be brought.

It is further urged by the appellant that the conveyance to the respondent was champertous. The statute relied on which was in force at the time of such conveyance (1 R. S. 739, § 147; R. S. pt. 2, chap. 1, tit. 2, § 147) was that "Every grant of lands shall

« AnteriorContinuar »