
    Butler v. City of Oswego et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    1. Evidence—Sufficiency—Non-Residence.
    The burden being on plaintiff to show that on July 1,1865, B. was a non-resident, the court was justified in refusing so to find, where the only evidence was that in November, 1865, B. was seen at work at P., in Pennsylvania, and at that time and place pointed out a house which he said was his, it not appearing where his family, if any, was, though a deed executed by.B. and wife, in 1867, describes them as of P.
    
      2. Equity—Jurisdiction—Limitation of Actions.
    Equity will not, in an action brought for that purpose, declare a lien void on the ground that it is barred by limitation, as the statute can only be used as a defense.
    Appeal from special term, Oswego county.
    * Action by Elizabeth H. Butler against the city of Oswego and Erastus P. Burt, to set aside, as a cloud on plaintiff’s title, a tax-sale certificate issued by defendant city to defendant Burt on December 8, 1868, based on an assessment to Charles H. Bonnell in 1865. In the complaint it is alleged that the assessment was void for the reason that the property was at the time unoccupied, and belonged to a non-resident, but was assessed as resident property. Lapse of time was inferentially stated as another ground of nullity. Plaintiff appeals from a judgment dismissing the.complaint.'
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      W. W. Gardenier, for appellant. D. P. Morehouse and Thomas H. King, for respondents.
   Merwin, J.

The only material questions to be considered in this case are —First, whether the trial court erred in refusing to And, as matter of fact, that Bonnell was a non-resident at the time of the assessment in question; and, second, whether the plaintiff is entitled to any relief in this action by reason of the failure of the defendant Burt to give to the owner a notice to redeem, 20 years and upwards having elapsed since the time such notice might have been given.

1. The statute provided that the assessment roll should be completed on or before the 1st day of July in each year. Charter of Oswego, c. 463, tit. 4, § 6; Laws 1860. The question then was whether on July 1, 1865, Bonnell was a non-resident. The burden was on the plaintiff to show this. Tingue v. Village of Port Chester, 101 N. Y. 294, 4 N. E. Rep. 625. There is no evidence that at that date he did not reside in.Oswego. A witness testifies that in Hovember or December, 1865, he saw Bonnell at work on a derrick at Pit-hole, in the state of Pennsylvania. The witness also said that he saw Bonnell at the gate of a house that Bonnell said was his house. Where his family, if any, were, does not appear. On the 7th October, 1867, Bonnell and wife, by attorney, executed to plaintiff a deed of the premises in question. In this deed Bonnell and wife are desfiribed as of Pithole, Pa. This is all the evidence on the subject of the non-residence of Bonnell in July, 1865. We think the trial court was justified in declining to find that Bonnell at the time of the assessment was non-resident. Ho other ground for attacking the assessment is presented by the evidence.

2. By section 14, tit. 5, of the charter referred to, it was provided that any owner of land sold for taxes might, at any time after the sale, redeem the same by paying to the purchaser, or to the city clerk for his benefit, the amount paid by him, with the addition of 20 per cent, per annum on such amount and any expenses incurred by him, and allowed under the act; that “at any time after twelve months after the sale of any parcel of land for any tax or assessment, the purchaser, his representatives or assigns, shall give notice.to the owner, requiring him to redeem the premises in three months thereafter by making the payment above required.” The manner of service of this notice was then provided for, and, in case the owner did not redeem within the time, his right of redemption was thenceforth divested. In the present case no notice to redeem has ever been given, and no one has redeemed the premises. The plaintiff has been owner since 1867. In the spring of 1888 the defendant Burt informed the plaintiff by letter that he held the certificate and stated the amount necessary to be paid in order to redeem, and no evidence was given showing that plaintiff prior to that time had any information of such sale or tax. The claim of the plaintiff is that, more than 20 years having elapsed since Burt could have given the notice and acquired absolute title unless redemption was made, the statute of limitations applies as a bar to the right of Burt, and that, therefore, the certificate should be canceled, or Burt be enjoined from enforcing it. Assuming that the statute applies to such a case, it is not made clear how upon that basis the plaintiff is here entitled to relief, it was long ago said in the court of appeals that the statute of limitations was designed and could only be used as a shield, and never as an affirmative aggressive weapon, and that equitable relief could not be based on a presumption of payment wrought out by the statute. Morey v. Trust Co., 14 N. Y. 302; Lawrence v. Ball, Id. 477. The same rule was laid down in Johnson v. Railroad Co., 54 N. Y. 416. The same principle would apply here. Burt had a claim in the nature of a lien, apparently effectual till payment. The plaintiff in this action cannot take advantage of any presumption of payment under the statute. Relief in equity must be based on actual payment. But it is urged on the part of plaintiff that she can stand upon the idea of adverse possession under the principle laid down in Baker v. Oakwood, 49 Hun, 416, 3 N. Y. Supp. 570. As to that it is sufficient to say that the issue of adverse possession is not presented by the complaint, and cannot be tried in this action. It seems to us, therefore, without passing upon the effect of the lapse of time, that it cannot be used by the plaintiff as a basis for equitable relief. It follows that the complaint was properly dismissed. Judgment affirmed, with costs.

Hardin, P. J., concurs.

Martin, J.

I concur in the result on the ground that the plaintiff’s cause of action was founded solely on the alleged illegality of the proceeding, which resulted in the certificate sought to be set aside, and the evidence was insufficient to justify a recovery thereon.  