
    George W. Zink, App’lt, v. Anna McManus, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Ejectment—Prima facie evidence of plaintiff’s title.
    This was an action of ejectment. The defendants were in actual possession of the property, and claimed that the plaintiff’s title to the premises as set up in his complaint, and proved on the trial, had been transferred to the defendant by a tax deed, executed by the comptroller of the city of Buffalo, in pursuance of a sale of the property for the non-payment of taxes levied upon the premises. At the time the assessment was made, upon which the defendants rely in support of their title, the plaintiff was a resident of the city of Buffalo, and in possession of the premises by his tenant, claiming to be tenant in fee. Held, that the plaintiff on producing the deed of the lands in question from his grantor, and showing his possession under the same, established a good and perfect title as against the defendant, unless the tax proceedings were regular and valid, so as to uphold the comptoller’s deed upon which the defendant relied as constituting a statutory transfer of the plaintiff’s title to the defendant.
    
      3. Deed—Description op lands—What may be regarded as surplus-age.
    
      Held, that the plaintiffs deed describing by metes and bounds the lands in question, was sufficient, and that a subsequent reference to them as the same premises conveyed by a deed referred to, which did not include them, might be rejected as mere surplusage and treated as made by mistake.
    3. Tax title — Validity op—Provisions op statute must be strictly POLLOWED—BUFFALO CITY CHARTER, §§ 41, 42—1 R. S., Pt. 1, TIT. 2, chap. 13, §§ 9, 12—Laws 1880, chap. 275, §§ 1, 2, 8.
    By the Buffalo city charter, tit. 2, §§ 41, 42, assessors are to ho appointed for the several wards into which the city is divided, and they have the powers and are charged with the duties of town assessors, and are required to prepare an assessment-roll for each ward, which shall contain an assessment of the taxable lands therein substantially in the form in which town assessors are required to make such roils, except that the lands of residents and non-residents shall both he assessed in the same form. By HR. S., pt, 1, tit. 2, chap. 13. §§ 9 and 12, assessors are required to make an assessment-roll, divided into four columns, the first containing the names of the taxable inhabitants, the second the quantity of land, the third the value of the same, and the fourth entries relating to personal property, the latter class being required by the city charter to be assessed in a separate part of the assessment-roll The same, when completed, is, by title 5, section 10 of the charter, to be delivered to the comptroller, who is authorized to apportion on the property assessed the taxes authorized to be assessed by the common council. In case of non-payment of the taxes levied on the lands within the time prescribed by the charter, the comptroller is, by Laws of 1880, chap. 275, authorized to sell the same, and by section 8 of that act, when lands have been thus sold and not been redeemed, the comptroller shall execute a deed of the lands to the purchaser or his assigns, which shall vest in the grantee an absolute estate in fee, and shall be conclusive evidence that the sale was regular and presumptive evidence that all previous proceedings were regular and according to the provisions of the act. By section 1 of that law every person is to be assessed in the ward where he resides, when the assessment is made, for all the lands then owned by him, within such town or ward, or occupied by him or wholly unoccupied; by section 2 lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or if the owner resides in the county in which such lands are located, to such owner. Held, that these clauses of the statute constituted the only authority f, r making the assessment, and that unless they were observed by the assessors the assessment was void.
    
      4. Same—Presumptive evidence of validity.
    L Held, that the defendant’s deed being executed and acknowledged in compliance with the several provisions of statute, upon its production the defendant made out a prima facie case of regularity in procedure up on which he might rely in support of the validity of the deed, unless the plaintiff made it opp ar as a matter of fact that some of the essential provisions of the statute were not observed.
    5. Same—What error in proceedings renders title invalid.
    
      Held, that the omission on the part of the assessors to assess the lands to the plaintiff, and in fact assessing them to another not the occupant, was fatal to the defendant’s claim of title.
    S. Ejectment—For the recovery op lands sold por non-payment op taxes—Limitation op Laws 1880, chap. 275, § 9, does not apply to.
    
      Held, that the limitation prescribed by Laws of 1880, chap. 275, § 9, did not apply to such an action as the present, and that the fact that more than one year had clap ed since the delivery of the assessment-roll to the treasurer, was not a bar to the action.
    
      Appeal from a judgment entered upon the verdict in the defendant’s favor, by order of the court, and from an order of the Erie county special term, denying the plaintiff’s motion for a new trial. This was an action of ejectment. The defendants were in the actual possession of the property, and claimed that the plaintiff’s title to the premises, as set up in his complaint and proved on the trial, had been transferred to the defendant, NcManus, by virtue of a tax deed, executed by the comptroller of the city of Buffalo in pursuance of a sale of the property for the non-payment of taxes levied upon the premises. The premises consisted of about seven acres, and is of the value of about $7,000.
    
      Shire & Van Peyma, for app’lt; Day & Parker,, for resp’t.
   Per Curiam.

At the time the assessment was made of the lands in dispute upon which the defendant’s rely in support of their tax title, the plaintiff was a resident of the city of Buffalo and in the possession of the premises by his tenant Nathan Vosseler, claiming to be the owner in fee, and the deed from his grantor described the lands in dispute. The trial court held that the plaintiff on producing that deed and showing his possession under the same, established a good and perfect title as against the defendant, and was entitled to a verdict in his favor, unless the tax proceedings were regular and valid, so as to uphold the comptrollers deed, upon which the defendants rely as constituting a statutory transfer of the plaintiff’s title to the defendant, Anna McManus. This ruling was correct. The defendants did not show any connection with the title; except as the same is based on the comptroller’s deed.

A conveyance of lands to a person, who enters possession thereunder, creates a legal presumption of a good title in the grantee, and occupant as against all intruders, and claimants, who are unable to show a better title. Therefore the claim of the defendants that the plaintiff failed to make out a prima facie case is not well founded.

The defendants also make the point that the lands in the deed, under which the plaintiff claims title, are not described so that the same can be located and for that reason, the plaintiff failed to show title to the lands in question and should have been non-suited. That deed described a parcel of land by metes and bounds so that the same can be ascertained and located and the paroi proof shows that they are the lands described in the complaint.

Following the description thus given, there is this statement: “ Being the same premises conveyed,” to the plaintiff’s grantor, and giving her name and referring to that deed by its date and time of record in the Erie county clerk’s office. The description of the land as given in the last named deed, does not embrace the land in dispute. The respondents claim that the reference to this deed is controlling, and that the lands conveyed to the plaintiff are the lands therein described and none other.

As the premises intended by the parties’ to be conveyed to the plaintiff were fully described, the reference made to the deed of his grantor by the plaintiff’s grantor, will not frustrate the conveyance under which he claims title, and the same may be rejected as surplusage, and as the deed referred to contains the description of another distinct parcel of land from the one in controversy, the reference thereto may be treated as made by mistake. Mason v. White, 11 Barb., 173.

The order directing a verdict in the defendant’s favor cannot be sustained, unless it is made to appear by competent evidence produced on the trial that the assessment and the levying of the tax on the plaintiff’s lands, and the sale of the same for non-payment were regular and in substantial compliance with the statute authorizing and regulating the same. Hilton v. Bender, 69 N. Y., 75; Van Rensselaer v. Witbeck, 7 N. Y., 517.

By the city charter, assessors are to be appointed for the several wards into which the city is divided, and they possess the powers and are charged with the duties of town assessors, and they are required to prepare an assessment roll for each ward, which shall contain an assessment of the taxable land therein, substantially in the .form in which town assessors are required to make such rolls, except that no distinction shall be made between the laud of non-residents and residents, but those of both shall be assessed in the form as resident lands. Title 2, §§ 41 and 42.

The general statutes of the state to which reference is made, regulating the mode and manner of making an assessment of lands in direct and positive terms, require the assessors to make an assessment roll divided into four separate columns. In the first they shall give the names of the taxable inhabitants; in the second the quantity of land; in the third, the value of the same, and in the fourth, the entries required to be made relating wholly to personal property, and under the city charter, that class of property is to be assessed in a separate and distinct part of the assessment roll. 1 R: S., part 1, title 2, chap. 13, §§ 9 and 12.

When the same is complete, the roll is to be delivered to the said comptroller, who is authorized to apportion on the property assessed the taxes authorized to be levied by the common council. Title 5, § 10. In the case of non-payment of the taxes levied on lands within the time prescribed by the charter, the comptroller is authorized to sell the same in pursuance to the provisions of chapter 278 of the Laws of 1880, which was passed subsequent to the enactment of the provision of the chapter referred to.

The lands in question were sold in April, 1884, for the tax levied thereon in the year 1883, and were bid in by the comptroller for and on behalf of the city, which he was authorized to do, for the want of a bid from other parties equal to the_ amount of the tax levied. Thereafter the. comptroller assigned the certificate of sale to the defendant McManus; and the plaintiff having failed to redeem the lands from the sale within the time fixed by the statute, a deed prepared in the usual form of tax deeds, was executed and delivered by the comptroller to the assignee of the certificate.

The plaintiff interposes several objections to the validity of the tax proceedings, upon which he relies to defeat the tax deed. He first claims that the lands were not assessed to the plaintiff nor his tenant, but to other persons, who made no claim of title to the premises. And secondly, that in all the proceedings including the assessment, there was an imperfect description of the lands, so that the same cannot be located thereby with certainty.

The defendants did not produce any evidence of the tax proceedings except the comptroller’s deed, and that the prior proceedings were in conformity to the requirements of the statute. They relied upon the provisions found in the eighth section of the act of 1880, which declares that when lands have been sold for non-payment of taxes, and have not been redeemed, the comptroller shall execute a deed to the purchaser, or his assigns, the conveyance of the real estate so sold, which conveyance shall vest in the grantee an absolute estate in fee, and that such deed, " shall be conclusive evidence that the sale was regular, and also presumptive evidence that all previous proceedings were regular according to law and the provisions of the act.” As-the deed was in due form and executed and acknowledged in compliance with the several provisions of the said act, upon its production the defendants made out a prima facie case of regularity in procedure, upon which the defendants might rely in support of the validity of the tax deed, unless the plaintiff by competent proof, made it appear as a matter of fact, that some of the essential provisions of the statute were not observed and performed.

At the time the assessment was made, the plaintiff was a. resident of the city of Buffalo and the lands were in the actual possession of his tenant, and they were assessed to-Joseph and Peter Zimmerman who, as the proof shows, made no claim of title to the land. The requirement of the statute that lands should be assessed in the name of the owner or occupant was disregarded. The provisions are, first:

Section 1. Every person shall be assessed in the town or ward where he resides, when the assessment is made, for all the lands then owned by him within such town or ward, or occupied by him, or wholly unoccupied.

Section 2. Lands occupied by a person other than the owner may be assessed to the occupant as lands of nonresidents, or, if the owner resides in the county in which such lands are located, to such owner.

By the provision of the city charter already quoted, no distinction is to be made by the assessors between the lands of residents and non-residents, and the same are to be assessed in form as the lands of resident owners.

There is no authority whatever for making an assessment except in the mode and manner pointed out in these clauses of the statute. Unless these provisions were observed and complied with by the assessors, they acquired no jurisdiction over the subject-matter, and the assessment was unauthorized and void. Whitney v. Thomas, 23 N. Y., 281; B. and S. L. R. Co. v. Supervisors of Erie County, 48 id., 101; Stuart v. Crysler, 100 id., 378.

In the first of these cases the court in its opinion gave the reasons why this statute should be observed, as follows: “If lands belonging either to a resident or a non-resident could be assessed to a third person having no connection with the premises, and if such an assessment could be made the foundation of a sale and a conveyance of the lands by the comptroller, great inconvenience and injustice might result.

The true owner would be misled. He would have no notice of the assessment, or of the proceedings upon it, and it would require extraordinary vigilance to discover and trace such proceedings. The "law protects the owner of property from being placed in such a position by requiring that when they are to be divested of their title to such property by any statutory proceedings, the directions of the statute must be strictly pursued.”

The assessment-roll was not produced in evidence on the trial, so as to exhibit to the court the form of the entry made therein by the assessors, but a witness was produced by the plaintiff, who held official position in the comptroller’s office at the time of the assessment and sale, who testified that he conducted the sale in behalf of the comptroller, and that he had then before him the records and proceedings on file in the comptroller’s office connected with such assessment and sale and he stated without any objection being interposed by the defendants, that the premises were assessed to Joseph and Peter Zimmerman, and that the search showed the title to the lands was in the plaintiff. He also produced the notice of sale as published, and it was therein stated that the premises were assessed to Joseph and Peter Zimmerman.

The omission of duty on the part of the assessors to assess the lands to the plaintiff, and in fact, assessing them to another, is fatal to the defendant’s claim of title.

It appears from the record, as we read it, that the notice of sale as published was also defective. It was stated therein that the lands were owned by Joseph and Peter Zimmerman, and if we are correct in this respect, then the notice of sale was defective beyond all controversy. The statute declares that the comptroller’s deed, when executed in due form, shall be conclusive evidence that the sale was regular.

The question is presented in construing this provision of the statute, whether it was the intention of the legislature to make the deed conclusive evidence that the publication of the notice was regular, or whether it was limited to the mode and manner, and time and place of making the sale. But we have concluded to pass the question without giving the statute a construction in this particular, for the reason that he had reached the conclusion that the assessment was illegal and void for the reason before stated, and that there is nothing to support the validity of the deed, upon which the defendants stand in support of their claim of title.

The final question presented, is made by the defendants, who contend that if it should be held that irregularities did occur in the tax proceedings, and that the comptroller’s deed conveyed to them no title, the plaintiff is barred from taking advantage of the errors pointed out by the provisions of the short statute of limitations contained in'section 9 of the act of 1880, which declares “that it shall be presumed that every tax levied and assessment made is valid and regular, and that all steps and proceedings required by law were taken and had until the contrary should be made to appear. Any action or proceedings commenced by any person or persons to test the validity or irregularity of any tax levied or assessment made, shall be commenced within one year from the time of the delivery of the roll, in which said tax or assessment is contained, to the treasurer; the invalidity or irregularity in tax or assessment, shall not be available as a defense or proceedings commenced after the expiration of one year after the delivery of the roll as aforesaid, for the collection of said tax or assessment, or for the enforcement of any right or title, by virtue of any sale thereunder, unless an action or proceedings to test the validity or irregularity of such tax or assessment within any time hereinbefore limited for commencing the same, and shall be still pending, or such tax or assessment shall have been adjudged to have been irregular or invalid.”

It is conceded that this action was not commenced within one year from the time the tax-roll was delivered to the treasurer. It is our opinion that it was not intended by the legislature that this provision should be applicable to actions like the one at bar, and in which a land owner is seeking, by the common law action of ejectment, to regain the possession of his land, from one who claims to have acquired his title by tax deed. The statute, by its own terms, is limited to a different class of cases, and has no application where the title of real estate, sold for the non-payment of taxes levied thereon, is in question.

The preceding sections of the same act point out, in detail, the course of procedure to be observed by the comptroller in selling real estate for unpaid taxes and also when, and how an owner may redeem his lands from a sale, and also creates the presumption of regularity in conducting the-proceedings in support of the comptroller’s deed. No other provision, relative to that point, is found in any of the subsequent sections of the Statute. The first clause of the-Statute, now under consideration, applies to equitable actions instituted for the purpose of testing the validity of any assessment made, or tax levied upon the property, either real or personal, before the proceedings have been conducted to a sale of the property of the owner, and also to such proceedings as are authorized by the Statute to set aside any irregular assessment, or erroneous levy of taxes. The remaining provisions relate to defenses in actions at law, which may be brought by the comptroller to enforce the personal liability of the land owner to pay the tax created by section 11, which declares that when a tax remains unpaid for six months, after the warrant for its collection has been placed in the hands of the comptroller of the city, the said comptroller may maintain an action in the name of his office for the amount of such tax, fees and expenses remaining unpaid and uncollected * * * in any court of competent jurisdiction, in which the proceedings, costs, judgments and executions shall be the same- and with like effect, as in actions betweeh other city officers and individuals, and the amount collected on any such suit shall be applied, by the said comptroller, in such manner as if the same had been collected on the sale of real estate.

The limitation created by the Statute clearly applies to an action prosecuted to procure a personal judgment against the person assessed, and also to actions or proceedings instituted for the enforcement of any right or title arising out of a sale of property, real or personal, other than real estate, assessed, and which was sold to pay the tax levied thereon. In other words, that these provisions have no application, when the question litigated relates wholly to the title of real estate, which has been sold for the nonpayment of taxes imposed thereon. With a view of ascertaining the meaning of the Statute, the same should be read in connection with the other provisions of the charter relativeto the. same subject. By the charter, the assessment roll is to be delivered by the comptroller to the treasurer, after the former has spread the tax thereon, and six months, at least, must expire from the time of such delivery before any lands can be sold for taxes, and nearly a year must necessarily expire before a sale can take place, and more than a year intervene before the comptroller causes notice of sale to be served on the owner, requiring him to redeem under any provision of the charter. Title 5 and title 7, § 7.

For this reason it seems clear that the limitation was intended to apply in the instances specifically enumerated in section 9. If the defendant’s interpretation of the statute is to prevail, then the practical and only way an owner can successfully challenge the validity and regularity of an assessment of his lands and a levy of the tax thereon, is to commence an equitable action for the purpose of having the same declared void and set aside within the time mentioned in the statute, and that as it is seen may have expired before the sale takes place and notice thereof served on the owner requiring him to redeem. If the statute is •susceptible of such a construction, then it is, we believe, without precedent in the system of tax laws in this state, and the same may be characterized as severe and harsh in its terms, and is imposing a severe penalty on the owners of the land for omitting to institute legal proceedings to cancel a tax before the property assessed has been sold for the non-payment of a tax levied thereon, or he has been notified of proceedings instituted for that purpose. The provision is in the nature of a healing statute passed for the purpose of curing defects in the tax proceedings, and is retrospective in its operation so far as it attempts to cure defects in making the assessment. Statutes enacted for that purpose are not effective, and do not reach and cure defects which are jurisdictional. This was held in Ensign v. Barse (107 N. Y., 329; 12 N. Y. State Rep., 39. As we have already pointed out, the assessors did not obtain jurisdiction of the subject matter, and for that reason the assessment was unauthorized' and void, and we think is not cured by this statute. The learned counsel for the defendants, in support of his argument, relies upon the decision rendered at the Erie county special term by Mr. Justice Daniels in Bosche et al. v. Heutter, not yet reported.

The tenant set up as a defence, he had acquired title to a portion of the devised premises by virtue of a tax sale and comptroller’s deed, and the learned judge held that although it appeared that the lands were not assessed to the owners, as required by the statute and was therefore unauthorized and void, and the comptroller’s deed was without valid prior proceedings to support it, yet as the action to enforce the payment of rent, was not commenced until more than a year after the assessment roll was delivered by the comptroller to the treasurer, he was barred of the right to test the validity and effect of the comptrollers deed and reasons there assigned for holding that the case was within the limitations prescribed by the act, were that the object and purpose of the statute was to terminate and quiet controversy relating to the validity of city taxes and assessment after the expiration of this period of one year. When that has expired their validity is not to be questioned either by an action or by way of defense. And this law must be intended to include a case of this description, when the plaintiffs can only recover by invalidating or securing a determination annulling the tax deed. The object was to render taxes of the city unassailable after this period of one year, and if it should be held unapplicable to a suit between individuals testing the title intended to be conveyed by the city authorities, the purpose of the legislature to a great extent would be defeated and there would be no propriety in holding that the title had become valid in favor of the city for the reason of this delay and that it might still be impeached by proceedings against a person purchasing the property from the city for the non-payment, and such clearly are not the design and intention of the legislature.

Our examination leads to the conclusion, which we have already expressed, and we are unable to agree with the learned judge that the statute has a purpose and meaning so broad as the one stated in his opinion, from which we have made the foregoing quotation.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All concur.  