N. Y. Rep.] Opinion of the Court, per HAIght, J. on the 19th day of November instead of the 23rd. However that may be, the counting the time from the day of last sale, giving two full years from the time on which the sale closed, appears to have been the practice adopted; and certainly the owner has no cause for complaint, for it adds to instead of deducting from the period of time in which he has the right to redeem. It is further contended that the evidence of service of the notice was defective. It is that it was served upon Conners by leaving it at his place of residence with his wife. The statute provides that the notice "may be served personally, or by leaving the same at the dwelling house of the occupant, with any person of suitable age and discretion, belonging to his family." We think that we should assume that the wife of Conners was a person of suitable age and discretion with whom to leave the notice, and inasmuch as she was occupying his dwelling house, she should be regarded as belonging to his family. In addition to the proof of the service of the notice on Conners as the occupant of the premises on the 23rd day of November, 1883, the affidavit of the person serving the notice states that he examined the land and made inquiry and ascertained that there was no other person than Conners occupying said premises at the time of the service. It, therefore, appears to us that no defect is appar ent with reference to the contents of the notice or the service thereof. (Laws of 1855, chap. 427, sections 68, 69.) It is further contended that the deed executed by the comptroller was not entitled to be recorded, for the reason that it was not acknowledged before an officer authorized to take the acknowledgment of deeds. The statute provides that, "Such conveyance shall be executed by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the deputy comptroller, surveyor general or treasurer, and all conveyances hereafter executed by the comptroller, of lands sold by him for taxes, shall be presumptive 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 to redeem, Opinion of the Court, per HAIGHT, J. [Vol. 196. were regular, according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto." (Laws of 1855, chap. 427, § 65.) Again, under the provisions of section 68, to which we have already referred, it is further provided that the conveyances made by the comptroller shall not be recorded until the expiration of the time given in such notice, and the evidence of the service of such notice shall be recorded with such conveyance. It will thus be seen that the statute prescribes how the comptroller's deed shall be executed. It then provides that it shall not be recorded until the notice of the sale and the service thereof upon the occupant of the lands, to which we have already referred, has been made and the time expired for the redemption, and then the deed, with the evidence of the service of such notice, is required to be recorded. In this case the deed was executed by the comptroller, under his hand and seal, and was witnessed by the deputy comptroller. It was executed in the manner required by the statute, and after the service of the notice of sale and of the proofs of service were made upon the occupant, and the time had expired in which the occupant was allowed to redeem, and that fact was certified to by the comptroller, the deed with the certificate and the evidence of the service of the notice were recorded as required by the stat ute. The execution of the deed was an act of a state officer, performed by him in accordance with the requirements of the statute, and we think no acknowledgment was necessary. It is true that in 1898 the legislature, by chapter 339, amended the provisions of the Tax Law, to which we have referred, by providing that, "Every certificate of conveyance executed by the comptroller under this act may be recorded in the same manner and with like effect as a conveyance of real estate properly acknowledged or proven." And also we find, under the Laws of 1902, chapter 344, like powers given to the comptroller again requiring his deeds to be recorded with like effect as if acknowledged before an officer authorized to take acknowledgments. These enactments followed the practice that had theretofore existed and should be con N. Y. Rep.] Opinion of the Court, per HAIGHT, J. strued as confirmatory thereof and not as nullifying all previous records of deeds given by the comptroller. We are thus brought to a consideration of the provisions of chapter 448 of the Laws of 1885, section 65, which chapter by the provisions of chapter 217 of the Laws of 1891, was extended and made applicable to all of the counties of the state, except Chautauqua and Cattaraugus. It provides as follows: "Such conveyances shall be executed by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this act takes 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 according to the provision of this act." While this statute had no application to the lands in question at the time that the various steps were taken to perfect the title, it was, by the act of 1891, extended to all of the counties in the state, with the exception of two. It thus became applicable to the proceedings under review. It is now contended that the foregoing statute has no application to the case under consideration, and if it has, it is violative of the provisions of the Constitution of the state in so far as it purports to cure the error in assessing resident lands as nonresident. The question thus presented is of vast importance to the people of the state, for this statute has now been in force nearly twenty years and presumably many titles have been accepted by virtue of its provisions. It must Opinion of the Court, per HAIGHT, J. [Vol. 196. be conceded that expressions occur in the opinions of this court which tend to sustain the contention made, notably in the case of Ensign v. Barse (107 N. Y. 329). FINCH, J., in considering a similar statute pertaining to the collection of taxes in the counties of Chautauqua and Cattaraugus, in sustaining the constitutionality of the act, stated, however, that it did not apply to jurisdictional defects. And in Joslyn v. Rockwell (128 N. Y. 334), PECKHAM, J., in considering the act in question, sustained the constitutionality of the act, upon the authority of the Ensign case, but says with reference thereto that, "For the purpose of showing that the deeds of the comptroller were void as given without jurisdiction, evidence was offered by defendants and received by the court, which tended to show that the taxes, for the nonpayment of which the lands were sold by the comptroller, were assessed as lands of a non-resident, while at that time. they were occupied by some one representing defendants' grantor. It was submitted by the court as a question of fact to be passed upon by the jury, whether the lands at the time of the assessment were occupied. There was also some evidence on the part of the defendants tending to show that the taxes upon these lands were paid to the collector before the return was made by the collector to the county treasurer. The court instructed the jury that if the lands were occupied when assessed as lands of a non-resident, or if the taxes had in fact been paid before the return was made to the comptroller, then in the one case the assessment was void, and in the other case all proceedings after the payment were void. We think the court was right in both branches of its charge. The defect was jurisdictional in both cases. The act of 1885 (Chap. 448) is one, by its title, relating to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.' It is provided that occupied lands are not the lands of non-residents. (1 R. S. 389, § 3.) And where lands of a non-resident of the county are occupied by a resident of the town, an assessment to the owner in the 'non-resident' part of the roll is illegal, and the N. Y. Rep.] Opinion of the Ccurt, per HAIGHT, J. lands should be assessed to the resident occupant. (People ex rel. v. Wemple, Comptroller, 117 N. Y. 77.) If the lands were occupied the act of 1885 would not apply." (p. 339.) The learned judge also states in his opinion that, "It is claimed that one in possession of all his rights cannot be compelled to resort to legal proceedings or else run the risk of losing them. The question does not arise in this case, for we hold, as in the case of Ensign v. Barse (supra), that the statute is not to be construed in that way. There is very weighty authority for holding such a statute in the case of one in possession to be invalid. (Cooley's Constitutional Limitations [3d ed.] 366 and cases in note 1.) We leave the matter without expressing an opinion in regard to it." This question was again considered by CULLEN, J., in Hagner v. Hall (10 App. Div. 581), which was affirmed on the opinion below (159 N. Y. 552), in which it was held that the assessment of a tax in the name of one who was not the owner or occupant of the land was not cured by the statute in question. He also referred to the question of the constitutionality of the act suggested in the Joslyn case. And again it was referred to in the case of People v. Ladew (189 N. Y. 355-360), but it was left undetermined. In the Joslyn case the determination of the constitutional question was avoided by holding that the assessment of the land as non-resident when in fact it was resident land was a jurisdictional defect, and, therefore, the statute did not apply. The learned judge, in writing the opinion in that case, followed closely the decision. made in the Ensign case, and in doing so overlooked one important distinction between the statute under which that decision was rendered and the statute under review by him. In the Ensign case the statute was curative only, and in no respects was a statute of limitations. In the statute under consideration we have a provision specifying a time that must elapse before the deed becomes conclusive evidence. The views of the learned judge with reference to what constitutes a jurisdictional defect have also been questioned. It is contended that the assessors had jurisdiction to assess the land |