Joslyn v. . Rockwell

*338 Peckham, J. In Ensign v. Barse (107 N. Y. 329), the statute provided that under certain circumstances named in the act the comptroller’s deed should be “ conclusive evidence” that “ the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices heretofore or hereafter required by law to be given, previous to the expiration of the time allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of all laws requiring and directing the same or in any manner relating thereto.” The plaintiffs here claim title under two deeds from the comptroller to Gerrit Smith, executed by reason of sales of the land for non-payment of taxes. In 1885, long subsequent to such sales and conveyances by the comptroller, the legislature passed the act known as chapter 448, of the laws of that year, and it was provided therein that after certain times therein stated, the deeds of the comptroller executed upon sales for the non-payment of taxes, should be “ conclusive evidence ” that “ the sale of said lands 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 two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same or in any manner relating thereto.” The comptroller’s deeds under which the plaintiff claims, were executed and recorded in due time so as to come within the purview of this act. It is evident that, u¡3on the subject of the conclusive character of the comptroller’s deed, the act of 1885 does not differ in any material respect from the act already quoted, and which was under discussion in the case of Ensign v. Barse (supra). It must, therefore, receive the same construction which was given the act in that case. It was there said that the act did not, on its face, purport to cure jurisdictional defects. Judge If men, in the course of his opinion, declared that the act “ raises a conclusive presumption of regularity, but leaves the question of the assessors’ jurisdiction and authority unaffected. *339 Thus understood it comes within the rule which counsel concede to be correct. It does not make the tax deed conclusive evidence of a complete title, but leaves open to the owner full right to assail the proceedings in any jurisdictional defect.” This construction was concurred in by the whole court. Hothing in the cases of People v. Turner (117 N. Y. 227) and Ostrander v. Darling * (in the second division of this court, and not yet reported) enlarges the construction to be given the act of 1885. It has not been held in any case in this court that I am aware of that a statute making a tax deed after a certain time designated in the statute, conclusive evidence of every fact which ought to exist in order to create a good title under such deed, would be valid as an exercise of legislative power as against the original owner who had always been in possession of his land, and of all his rights growing out of it, and whose possession remained undisturbed up to the time of the commencement of an action to obtain jtossession under a tax deed, and where the owner had in fact either paid his taxes before sale or a merely formal sale had been made, which was void for want of jurisdiction. The record of a deed from the comptroller it is contended would constitute no valid notice. 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 cited in note 1.) We leave the matter without expressing an opinion in regard to it. 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 non-payment of which the lands were sold by 'the comptroller,, were assessed as lands of a *340 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 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. We think there was sufficient evidence of occupancy to render it a question for the jury, and it was properly submitted as such. If the taxes had in truth been paid to the collector before he made return to the county treasurer, the right to proceed further toward the sale of the lands for non-payment of the taxes at once ceased. The comptroller had no jurisdiction to make the sale or to execute the conveyances of the lands in question. There was enough evidence of such payment to make it also a question for the jury. We think the evidence of payment to the collectors was properly admitted. Both these questions were of a character not covered by the act of 1885, and no error was committed in receiving evidence *341 relative to them and which tended to show the facts upon which the defendants’ contentions were to he sustained. ¿We have carefully examined all the other questions raised by the learned counsel and set forth in his able brief, but we think no errors were committed by the trial court in disposing of them. We are of the opinion that the judgment below is right, and it should, therefore, be affirmed, with costs. All concur. Judgment affirmed. Footnotes [*] 127 N. Y. 70.