
    (84 Hun, 278.)
    FORTMANN v. WHEELER et al.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    Tax Titles—Possession op Third Person.
    The fact that property sold for taxes was, at the time of the delivery of the tax deed, in the adverse possession of a third person, does not render the deed void.
    Appeal from circuit court, Kings county.
    Action by Gerhard Fortmann against George S. Wheeler and others to recover possession of land. From a judgment entered on a verdict in favor of plaintiff, defendants appeal.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Jesse Johnson, for appellants.
    W. I. Taylor, for respondent.
   BROWN, P. J.

This was an action of ejectment to recover possession of lands in the city of Brooklyn, described as lot 21, in block 155, on the assessment map of the Twenty-Fourth ward, for unpaid taxes. The land was sold under the arrears act (chapter 114, Laws 1883), and purchased by the plaintiff by a deed executed by the mayor and comptroller of the city on December 12, 1892. The plaintiff, to establish his title, introduced in evidence a deed from the registrar of arrears to the city, dated March 24,1892, and a deed from the mayor and comptroller of the city to himself, dated December 12, 1892, and rested his case. The defendants put in evidence deeds showing title in Nancy B. Wheeler in 1884, and it was admitted that the appellants were in possession of the premises, as devisees of said Nancy B. Wheeler under her will and the deeds aforesaid, at the time of the delivery of the deed to the plaintiff. The appellants ask a reversal of the judgment upon two grounds: (1) That the recitals in the deed of the registrar of arrears are not evidence of the city’s title; and (2) that the deed to the plaintiff was void for the reason that, at the time of its delivery, the property was held adversely by the appellants.

The last proposition was decided adversely to the appellants’ contention in Jackson v. Kane, 1 Johns. Cas. 153; Jackson v. Graham, 3 Caines, Cas. 188; Hubbell v. Weldon, Lalor, Supp. 139. In those cases it was held that, under a valid tax sale or sale on execution, the owúers or occupants would, after the sale, be regarded as holding in subordination to the title of the purchaser. The mere fact that a party is in possession, and asserts an adverse claim, does not render a deed void. The claim must be under some specific title. Crary v. Goodman, 22 N. Y. 170. The only title which the appellants had was that derived under the will of Nancy B. Wheeler. But that was the same title which the plaintiff had purchased. The parties did not, therefore, claim under adverse titles, but both claimed the same title, and, if the proceedings in reference to the tax were valid, that title was vested in the plaintiff, and appellants’ possession was subordinate to it. The arrears act provided that a purchaser at the tax sale “shall take a good and sufficient title in fee simple absolute to the property sold, of which the said deed shall be presumptive evidence.” Laws 1885, c. 163, § 1. The legislature had the right to give this character, as evidence, to the deed. Curtiss v. Follett, 15 Barb. 337-343; Johnson v. Elwood, 53 N. Y. 431-435. The burden of disproving the authority of the registrar of arrears to deliver the deed was therefore upon tire appellants.

The provision in the arrears act does not differ in substance from that contained in the act of 1850 (chapter 183), or in the act of 1855 (chapter 427), or the act of 1893 (chapter 711). The title conveyed by a deed from the comptroller of the state for land sold for taxes is now, by the latter act, declared to be “an absolute estate in fee simple,” subject only to claims of the state for taxes, and the deed is made “presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with the provisions of law relating thereto.” Statutory provisions of this character, making tax deeds presumptive evidence of the validity of the purchaser’s title, have uniformly been held valid. See Black, Tax Titles, c. 33, and cases cited.

The point that it was incumbent on the plaintiff to prove the authority of the city to purchase the land cannot be sustained. Such authority, made dependent, as it was, upon the determination of the mayor, comptroller, and corporation counsel, will be presumed. It was expressly conferred by statute, and, when an official act has been performed in a manner substantially regular, the courts will presume that the conditions for its validity have been fulfilled. Wood v. Morehouse, 45 N. Y. 376. The judgment must be affirmed, with costs. All concur.  