TABLE OF CASES

DISTINGUISHED, ETC., IN OPINIONS REPORTED

IN THIS VOLUME.

44 Hun, 278, distinguished..... 368

People ex rel. Chrome Steel Co. 22 Hun, 91, distinguished...... 24

IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

COMMENCING OCTOBER 5, 1909.

JOHN M. HALSTED et al., Respondents, v. JACOB SILBERSTEIN et al., Appellants.*

Real property — tax titles - sufficiency of comptroller's notice to occupant at expiration of time to redeem-proofs of service when comptroller's deed need not be acknowledged — effect of comptroller's deed - Statute of Limitations.

A deed is not champertous where, at the time it was executed and delivered to the grantee, his grantor was in possession, even though there was adverse possession at the time such grantor took title.

A notice of sale of lands for taxes, required by statute to be served upon the owner or occupant after the premises have been sold, stating that the conveyance by the comptroller will become absolute unless the premises are redeemed within six months, and that thirty-seven and one-half per cent must be added to the taxes and costs, the amount of which is given, is sufficient without carrying out such per centage in dollars and cents.

The fact that the time for redemption is computed from the day of the last sale, giving two full years therefor from the day on which such sale closed, does not prejudice the owner, since it adds to the time in which he had the right to redeem.

The proof of service of such notice is not defective when it is shown that there was only one occupant of the premises, and that it was served upon him by leaving it with his wife at his place of residence.

*This case was decided June 8, 1909. A motion for re-argument was made which was decided October 19, 1909. The opinion was held until decision of that application. The memorandum on denial of that motion is now reported in connection with the opinion as handed down in the first instance.

A tax deed executed by the comptroller which is witnessed as required by statute, when it is accompanied by evidence of service of notice of sale and proof of expiration of time for redemption, is entitled to record without being acknowledged.

A statute of limitations intended as a retrospective law must give a reasonable time to enforce a remedy, available at the time of its passage, before the bar of the statute will apply.

The statute (Laws 1885, chap. 448, section 2) which makes the comptroller's deed conclusive evidence of the validity of a tax sale unless an action is brought within six months after the expiration of the two years allowed by law to redeem, while in some respects a curative law, is primarily and essentially a statute of limitations, and the time given by the stat ute is a reasonable one.

The comptroller's deed of lands sold at a tax sale, together with notice to occupant and proof of service thereof, was recorded in 1887, the plaintiffs and their predecessor in title continuing in possession until 1897, when the purchaser at such sale obtained possession. Held, that while the plaintiffs had no available remedy against the state until after they were dispossessed in 1897 and the running of the short Statute of Limitations was postponed until the happening of that event, immediately thereafter they had a remedy by ejectment and the statute began to run; hence the statute had run against an action commenced in 1906 and became conclusive evidence not only that the tax was properly levied, but that all the notices given required by law previous to the expiration of the time to redeem were regular and regularly given, published and served.

The recording of the deed being prohibited until the proofs of the service of the notice to redeem had been made, and the time therein specified had expired, and the certificate of the comptroller to that effect had been given, the certificate became the evidence of the notice and the service thereof, which is required by the statute to be recorded in connection with the deed.

Halsted v. Silberstein, 122 App. Div. 909, reversed.

(Argued March 26, 1909; decided June 8, 1909.)

(Motion for re-argument submitted June 18, 1909; decided October 19, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 27, 1907, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion.

Samuel II. Wandell and Stephen M. Hoye for appellants. The tax of 1875 was lawfully assessed on the premises. (Keyes v. Miller, 90 App. Div. 596; Marsh v. Campbell, 143 N. Y. 335; Chase v. Wemple, 144 N. Y. 478; B. & S. L. Co. v. Supervisors, 48 N. Y. 101; People v. Cassidy, 46 N. Y. 46; Turner v. Boyce, 11 Misc. Rep. 502; Wheeler v.. Spinola, 54 N. Y. 377; Pope v. Hanmer, 8 Hun, 265; 74 N. Y. 240; Trustees, etc., v. Kirk, 68 N. Y. 459; Doolittle v. Tice, 41 Barb. 181.) The proceedings for the sale of the property for taxes were in all respects regular and vested a good title in appellants under the comptroller's deed. (Ellis v. Clark, 39 Fla. 714; Graves v. Bruen, 6 Ill. 167; Barcello v. Hapgood, 118 N. C. 712; Wood v. Knapp, 100 N. Y. 109; Ensign v. Barse, 107 N. Y. 329; Colman v. Shattuck, 62 N. Y. 348.) The respondents were barred by statute from maintaining the action. (People v. Turner, 145 N. Y. 451; Turner v. State, 168 U. S. 90; S. L. Co. v. Comptroller, 177 U. S. 328; Ostrander v. Darling, 127 N. Y. 70; Jackson v. Rowe, 106 App. Div. 65.)

Sidney V. Lowell for respondents. The attempted tax of 1875 and the sale following it were invalid. (B. R. R. Co. v. Suprs. Erie County, 48 N. Y. 101; Stewart v. Crysler, 100 N. Y. 382; People ex rel. Barnard v. Wemple, 177 N. Y. 77; Joslyn v. Rockwell, 128 N. Y. 334; Hilton v. Fonda, 86 N. Y. 347; Cromwell Case, 123 N. Y. 496; Douglas v. Supervisors, 172 N. Y. 313.) No statute can make a sale for a void or paid tax good so as to transfer the title from an owner in possession to a tax sale purchaser. (Hayes' Case, 71 N. Y. 495; Joslyn v. Rockwell, 128 N. Y. 334; Ensign v. Barse, 107 N. Y. 329; People ex rel. Barnard v. Wemple, 117 N. Y. 83; Gilmore v. City of Utica, 131 N. Y. 33; People v. Turner, 145 N. Y. 457; Meigs v. Roberts, 162 N. Y. 377; Wallace v. Me Echron, 176 N. Y. 429; Hagner v. Hall, 10 App. Div. 581; 159 N. Y. 552; Landon v. City of Syracuse, 19 App. Div. 45.) The deed and certificate were not acknowledged and, therefore, were not entitled to be recorded.