
    Mary Birch Reid, Resp’t, v. The Board of Supervisors of Albany County, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Taxes—Reimbursement to purchaser—Limitation.
    Plaintiff’s husband purchased lands at tax sales from 1875 to 1883, inclusive, but it did not appear that he made any effort to gain possession thereof: In 1889 he demanded reimbursement from defendant on the ground that the taxes were invalid. Held, that the decision of this court in Bemsm v. Wheeler had no relation to these parties or sales; that the sales if invalid were so from the first and the purchaser was entitled to demand reimbursement at once, and his cause of action was barred in six years from that time.
    3. Same—Laws 1850, Chap. 86.
    To entitle a purchaser to claim reimbursement under § 53 of article 6 of chapter 86, Laws 1850, he must show that he made some effort to obtain possession of the lands, and that it was done within a reasonable time. Such effort may be by taking the proceedings provided by the statute or by a demand of possession made of the owner or occupant.
    3. Same—Laws 1889, Chap. 429.
    Chapter 439, Laws 1889, amending the act of 1850 by inserting the words “ at any time within six years ” in § 52, has no application to sales made prior to its passage.
    
      Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff.
    William Reid became the purchaser at tax sales in the city of Albany of certain lands sold for non-payment of taxes thereon, under the act, chapter 86 of the Laws of 1850, and he received the certificates of such sales and the deeds of the lands sold as provided in that act. The sales were made and the moneys paid by him between June, 1875, and June, 1883, both inclusive. The plaintiff has succeeded to the rights of Reid and commenced this action September 2, 1890, to recover with interest the moneys paid by Reid upon such sales. The defense was the statute of limitations, which was overruled by the trial judge, who gave judgment to the plaintiff for the amount claimed. That judgment having been affirmed at the generdl term the defendant has brought this appeal. Other facts appear sufficiently in the opinion.
    
      Andrew Hamilton, for app’lt; D. Cady Herrick, for resp’t
    
      
       Reversing 37 N. Y. State Rep., 847.
    
   Earl, J.

All the moneys claimed in this action were paid upon the tax sales more than seven years before the commencement of the action, and the only question for our determination is, whether their recovery is barred by the statute of limitations.

Under § 48 of article 6 of chapter 86 of the Laws of 1850, the purchaser at tax sales conducted in the city of Albany, upon the payment by him of the amount of his bids, was entitled to receive certificates of such sales, and then he was immediately entitled to possess, hold and enjoy the lands purchased for the full term mentioned in his certificates, and he was authorized to cause the occupants thereof to be removed therefrom, and the possession thereof delivered to him in the same manner and by the same proceedings, by and before the same officers, as in the case of a tenant holding over after the expiration of his term without permission of his landlord.

Then it was provided in § 52 of the same article, excepting the words in italics, as follows : “ Whenever any purchaser under

such sales shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the board of supervisors of the said county shall, at any time within six years from such sale, reimburse the purchase money so paid, with interest; and upon their refusal or neglect to do so, the same may be recovered by an action against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose, not otherwise specifically appropriated, upon the production of a certified copy of the judgment; and if he have no such moneys in his hands, then the same shall be added to the amount of the taxes to be levied on the city of Albany, and collected in the same manner as other contingent expenses, and when collected shall be paid over to such purchaser.”

The section was amended by the act, chap. 429 of the Laws of 1889, passed June 11th of that year, by inserting therein the words in italics.

It was not alleged in the complaint, and was not shown upon the trial that any legal proceedings of any kind had been instituted by the purchaser or the plaintiff .to recover possession of the real estate. It does not even appear by allegations or proof that the purchaser or the plaintiff ever demanded, or made any efforts of any kind to obtain such possession. The plaintiff’s case rests upon the allegation contained in the complaint, and not denied in the answer, that the purchaser and the plaintiff were unable to recover the possession of the real estate purchased, by reason of errors and irregularities in the assessment and in the levying of the taxes, and in the proceedings for the collection thereof. The finding of the trial judge upon that branch of the plaintiff’s case was based on that admitted allegation, and he found that the purchaser was entitled to demand possession of the real estate sold to him immediately upon the issuing to him of the certificates of the sales, and that by reason of errors and irregularities in the proceedings prior to the said sales the purchaser was unable to recover possession of the parcels sold at the times of such sales and immediately thereafter.

The trial judge made a finding of fact based upon an allegation in the complaint, not denied in the answer, “ that as a result of a decision of the court of appeals of this state in a similar case the said tax sales were declared irregular and void on or about January 7, 1887.” And upon that finding of fact he based a conclusion of law “ that neither the said William Reid- nor the plaintiff were entitled to demand of the defendants the reimbursement of the moneys so paid out on said tax sales and for such certificates and deeds above referred to, until the year 1887, and after such sales, certificates and deeds had been declared irregular and void by the court as hereinbefore foundand he held that the statute of limitations did not begin to run until that date. The decision of the court of appeals referred to was made in the case of Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202, a case which arose in the city of Brooklyn and related exclusively to taxes imposed there. That decision had nothing whatever to do with these parties or these sales. It did not conclude or bind these parties, and simply furnished evidence of the law. It was not even absolutely binding as a precedent in any other case. The court of appeals could disregard it as authority in any subsequent case if it believed it to be unsound. The Saint Nicholas Bank v. The State National Bank, 37 N. Y. State Rep., 829. These tax sales were not valid until that decision and then thereby rendered invalid. They were from the first invalid, and the rights of the parties interested were in no way affected by that decision. The rights and the duty of the purchaser and the obligations of the defendant were precisely the same before that decision as after. Upon this point the following authorities have some bearing. Allen v. Mille, 17 Wend., 202 ; Parsons v. City of Rochester, 43 Hun, 258; 5 N. Y. State Rep., 467; Van Nest v. The Mayor, etc., 24 Wk. Dig., 50; White v. City of Brooklyn, 122 N. Y., 53 ; 33 N. Y. State Rep., 307.

That decision can therefore have no bearing upon this case except to show that these tax sales were invalid from the beginning. The plaintiff’s case stands then solely upon the ground that the tax sales being invalid, he obtained no title to the lands and could not have recovered the possession thereof in any legal proceedings instituted by him if they had been resisted. Upon this view of the case the purchaser was at once entitled to demand reimbursement from the defendant, and his cause of action was barred in six years from that time, under § 410 of the Code, which provides that “ when a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.”

These views are sufficient for the reversal of this judgment, but upon a new trial other facts may appear, and hence it is quite proper that' we should determine the construction and the force and effect of § 52 as found in the act of 1850.

Under that section, before the plaintiff can recover in this action, she must show that the purchaser made some efforts to obtain the possession of the lands. That is clearly implied in the language used. The purchaser must have been “unable to recover such property,” and the inability could not be predicated of a case where no steps whatever had been taken to recover possession. It is not sufficient to show merely that the sales were illegal. The occupant might still not choose to resist the right of the purchaser, and the obligation of the defendant to reimburse the purchaser only .arises in case of the inability to recover possession for reasons particularly mentioned in the section. Good faith requires , at least so much of the purchaser. , '

What efforts must the purchaser have used to recover the possession before he can claim reimbursement under the section ? He may institute an action or the special proceeding mentioned in § 48 above referred to, and if he conducts the action or the special proceeding in good faith to a termination unsuccessfully, on account of the invalidity of the sales, the result will show his inability to recover and his right to reimbursement. But he is not bound to institute an action or the special proceeding. He may go to the land and demand the possession from the occupant or owner, and if his right is denied and the possession is refused to him on the ground of the invalidity of the sales, then he may make his demand for reimbursement. But in such case he must assume the burden of establishing the invalidity of the sales and his inability on that account to obtain the possession. It is not provided in the statute that his inability to recover the possession shall be established by legal proceedings, and it would be unreasonable to suppose that the legislature meant that he should institute fruitless legal proceedings against an owner or occupant insisting upon the invalidity of the sales, and thus subject himself to useless expense before he could reclaim the money for which he had received no value.

Within what time should the purchaser take the steps or make his effort to recover the possession ? The statute of 1850 says nothing upon the subject It could riot have been the legislative intention that the purchaser could delay unreasonably and thus make the county practically an enforced borrower of his money at the lawful rate of interest during his will. The law provides in substance that he is to do something before he can claim reimbursement, and it is implied in such a case that he must act within a reasonable time. There can be' no other rule. If he institutes legal proceedings he must institute them within a reasonable time after he obtains his certificates, and conduct them to a termination with reasonable diligence, and then the statute of limitations will begin to run from their termination, as his failure to recover is then established. If he relies upon a demand of possession, and does not institute legal proceedings, then the demand must have been made within a reasonable time, and the statute of limitations will begin to run from that time. What is a reasonable time in such a case is a question of law to be determined upon the circumstances of each case. Any other construction of the statute will enable the purchaser, to defeat, or nullify the statute of limitations by voluntarily postponing through his own negligence the time when he could make the demand for reimbursement The statute of limitations begins to run from the time his right to demand reimbursement is complete, and as it depends upon his own act to perfect his right to make the demand, he cannot unreasonably delay that act

We have thus far considered § 52 as it was before the amendment of 1889. The amendment can have no effect in this case. If the plaintiff’s claim was barred by the limitation prescribed in the Code when the amendment was enacted, then it certainly does not reach this case. The original section is applicable to all prior sales, and the amendment is prospective in its operation. The original section may be treated as if it was permitted to stand, and the amendment had been placed in a separate act applicable to future sales. Ely v. Holton, 15 N. Y., 595; Moore v. Mausert, 49 id., 332; Gibbs v. The Insurance Co., 63 id., 114, 121; People v. The Supervisors, etc., 67 id., 110-117; Goillotel v. The Mayor, etc., 87 id., 445; Matter of Miller, 110 id., 216, 223; 18 N. Y. State Rep., 226. The amendment did not repeal the Code limitations, but left them to apply to past cases and simply made a new rule to apply to future cases.

The legislature could, however, have made the amendment applicable to past sales, provided a reasonable time was given for the purchaser to claim and enforce reimbursement after the amendment took effect. Cooley’s Cons. Lim., 4th ed., 456; Bigelow v. Bemis, 2 Allen, 496; Terry v. Anderson, 95 U. S., 628.

Our conclusion, therefore, is that the judgment should be reversed, and a new trial granted,' costs to abide event

All concur, except Peckham J., not sitting, and Finch, J., absent  