Smith v. . Buhler

Finch, J, There is one defect in the tax title of the plaintiff which we are unable to surmount. Due service upon the owner of a notice to redeem is made essential to the right of the purchaser to have his lease from the comptroller made absolute. Until then the lessee as against the owner obtains no title, and has only an imperfect or inchoate right which may ripen into one. That notice is for the protection of the owner, and to give him a final opportunity to save his title from destruction. It is to him the most important step in the proceeding, upon which he has a right to rely, and since its result is to finally divest his title must be taken in strict accordance with the statute. That requires, among other things, that the notice “ shall state in substance the sale and conveyance,” by which is meant not a sale and conveyance, but those which had actually occurred, and as against which the purchaser calls upon the owner to redeem. Any material misstatement which describes a sale which never occurred must necessarily mislead the owner and throw him off his guard and operate as a fraud upon his rights. In this case the sale made and the lease given were for the non-payment of *218 the taxes of 1876, and it was upon those taxes that jurisdiction rested, and against them and the effect of their non-payment that the owner was to he called on to redeem. The notice in fact served did» not state that sale or a conveyance founded upon it as the statute required (Laws of 1871, chap. 381, § 13), but, on the contrary, stated a sale for a tax of 1874. Against that tax, and a sale thereunder, the owner may have had a perfect defense and felt safe in omitting to redeem, and had a, right to rest upon the notice which called upon him to redeem from a salé for the taxes of that year. Of a sale for the taxes of 1876, and a lease founded on such a sale, he never was. notified by a redemption notice, or called upon to redeem from a purchase thereunder. Ho notice of “ the sale and conveyance ” relied upon was given him, but, instead, of another and different sale and conveyance from which it was not needed that he should redeem. The defect was more than a mere omission. It was a false statement of the facts, and that shows why one of the answers to the difficulty furnished by the appellant is unsound. He says the statement was surplusage. I do not think it was, for instead of adding needless information it so qualified the required statement of sale as to make that statement false and misleading in a material respect. He further says that the objection was not raised. But his. own exception upon which he founds his appeal is to the direction which the court gave of a verdict for the defendants. They not only asked for that decision upon specific grounds,, but also generally, and may defend the direction given upon any grounds which the case presents. We think, therefore,, the direction was right and the judgment should be affirmed, with costs. All concur. Judgment affirmed.