
    Garrett Toole et al., Pl’ffs, v. Board of Supervisors of Oneida County, Def’t.
    
      (Supreme Court, Oneida Special Term,
    
    
      Filed November, 1895.)
    
    1. Pensions—Exemption.
    Section 1393 of the Code exempts from sale for nonpayment of taxes land purchased as a place of residence for the purchaser and his family with pension money.
    8, Same—Partial ownership.
    Where the pensioner’s wife has an interest in the property, as tenant by the entirety, by virtue of a deed running to them jointly, an assessment of the entire parcel of land for taxation in the name of the pensioner cannot be sustained. The assessment on her interest only should describe and identify it as her exclusive interest.
    _ Action by Garrett Toole and others against the board of supervisors of Oneida county to cancel an assessment for taxes on property owned by plaintiff in the city of Utica, and to set aside a tax sale thereunder as a cloud on their title.
    The plaintiff Garrett Toole, while serving as a soldier of the United States in the war of Rebellion, contracted a disease which so far disabled him that, 1885, he was allowed a pension, to commence from the 20th of November, 1862. Upon the allowance of his pension, the first payment received amounted, to $900, which he at once invested in the house and lot in question. The purchase price was $1,100, and the balance of $200 with interest he paid out of other pension moneys, as they were received from the government, so that the entire purchase price was paid with pension moneys. On the 23d of May, 1893, he conveyed the premises to an intermediary, who forthwith conveyed the same hack to Mr. Toole and his wife*. In 1893 the entire premises were assessed in the name of Garrett Tool, upon a valuation of $400, and subsequently, by proceedings usual in such cases, the property was sold to the defendant for nonpayment of the tax so assessed. The premises consist of house and lot that are occupied by Mr. Toole and his wife and child. There are no buildings-upon the property, except a small dwelling house and a henhouse which were there when Mr. Toole purchased the property. It does not appear that any improvements have since been made, or that the property has increased in value since the date of the purchase.
    George C. Carter, for pl’ffs ; George C. Moorehouse, for def’t.
   VANN, J.

—Both the national and state legislatures have been careful to protect soldiers in the enjoyment, not only of their pension money but also of. such property, bought with pension money, as can be clearly and definitely traced to that source. Th® federal statute upon the subject is as follows:

“No sum of money due or to become due to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office or any officer or agent thereof, or is in course of transmission with the pensioner entitled thereto, but shall -inure wholly to the benefit of such pensioner.” Rev. St. U. S. § 4747.

The statute of this state applicable to the subject is part of the Code of Civil Procedure, occurring under the title of “Property Exempt from Levy and Sale,” and is as follows:

“The pay and bounty of a non-commissioned officer, musician, or private, in the military or naval service of the United States; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind, presented as a testimonial for services rendered in the military or naval service of the United States; and the uniform, arms, and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of. taxes, or in other legal proceeding.”' Code Civ. Proc. § 1393.

This section received careful consideration in Yates County Nat. Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121, where it was held by the court of appeals, all the judges concurring, that when the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt from levy and sale on execution. In discussing the case, Chief Judge Huger used the following language:

“ The plain purpose of the act was to promote the comfort of the soldier, to secure to him the bounty of the government, free from the claims of creditors, and to insure him and his family a safe, though a modest, maintenance so long as their needs require it. * * * We entertain no doubt that, where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt, Under the provisions of this statute. Where such moneys can be clearly identified, and are used in the purchase of necessary articles, or are loaned or invested for the purpose of increase-or safety, in such a form as to secure their available use for the benefit of the pensioner in time of need, we do not doubt but that they come within the meaning of the statute; but where they have been embarked in trade, commerce, or speculation, and become mingled with other funds so as to be incapable of identification or separation, we do not doubt but that the pensioner loses the benefit of the statutory exemption.”

As it appears that .the pensioner in question has no property, aside from his interest in this real estate, and the monthly pension allowed him by the government, this case and the language used in deciding it seem applicable to the case in hand. The statute of exemption makes no distinction between a levy and sale by virtue of an execution, which was that case, and the nonpayment of taxes which is this case. Considering the object of the statute, no reason is ajoparent for a distinction, as the soldier might lose his home, which it was the object of the statute to secure to him, by a sale for the nonpayment of taxes the same as by a sale for the nonpayment of debts. The legislature, grateful to the soldiers who so faithfully served the country in its time of need, clearly intended to provide a comfortable support to such as had been wounded or had become disabled by disease in the discharge of their duties, by allowing them the use of all pension moneys, free from any claim for debt or taxes. A -statute with such an object should be so construed as to carry that object into effect; and, without further discussion, it is therefore held that the section, under consideration, as construed by the court of appeals with reference to exemption from sale under execution, applies with equal force to exemption for nonpayment of taxes.

The defendant, however, claims that the wife has an interest in the property in question, as tenant by the entirety, by virtue of the deed running to the plaintiffs jointly, and the authorities sustain this position. Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 id. 12; Hiles v. Fisher, 144 id. 306; 63 St. Rep. 705. From this fact it is argued that the wife had an assessable interest in said land, which is probably correct. It is further argued that, as real property may be assessed either to the owner or occupant, this property was properly assessed in the name of the husband, and that the assessment in question, if it is held that his interest was not assessable, should be regarded as applicable to her interest only. An assessment upon her interest only, however, should in some way describe and identify it as her exclusive interest, as, otherwise, it would mislead purchasers, and place a cloud upon the title of the husband. This was not done in the assessment in question, which is upon “all that piece or parcel of land,” etc.’, and not upon any specific interest in it. The advertisement of sale'was in the same form, and the sale was, apparently, of the entire land, and all estate, title and interest therein. In form, at least, it included the interest of the husband only, for the name of the wife does not appear; nor is there any suggestion that any interest except that of the husband was assessed or offered for sale.

The defendant further claims that property bought with pension moneys does not continue to be exempt, even if occupied by the pensioner and his family, provided it so increases in value as "to be far beyond the needs of his family, for “a safe, but modest, maintenance.” It may be that this position is correct, and that, in as case where the property had largely increased in value, only a certain amount of the valuation would be exempt, and the remainder taxable. But the argument based upon this proposition—that, as the assessors had jurisdiction, it is to be presumed that their valuation of $400 was only for the excess properly assessable, owing to increase in value—I do not regard as sound, under the circumstances of this case. Without reference to the question as to which party the burden of proof rested upon, I think the evidence fairly warrants the inference that there has been no substantial increase in value since the date of the purchase, which was May 13, 1885. The consideration then paid was $1,100, and no substantial improvements have been since made. It is still occupied as a dwelling house, and not for business purposes. The fact that there is a henhouse upon the premises, consisting of a house and lot in a city, is not without significance upon the point under consideration. No other point Worthy of the expression of consideration has been made. No question was raised in the answer, or made upon the trial, as to misjoinder of parties plaintiff. Upon the whole case I think the plaintiffs entitled to judgment canceling the assessment and vacating the sale, with costs.

Findings and a decree may be prepared accordingly, and, if not assented to as to form, settled before me upon a .notice of two days.  