
    Edwin R. Wallace, Plaintiff, v. Warren Curtis et al., Defendants.
    (Supreme Court, Fulton Trial Term,
    November, 1899.)
    1. Partition — Trial of conflicting claims to wild lands.
    An action may be maintained, under section 1543 of the Code of Civil Procedure, between tenants in common of a tract of wild unoccupied land, to settle the title of the rival claimants and to partition the tract among those entitled.
    8. Same — Deed of wild lands not void for uncertainty of description,
    A description in a deed of the Comptroller, which contains no other location or setting forth of such a tract than the words “ 1,128 acres of land to be laid out as aforesaid, being the northwesterly corner of Township No. 4 of Totten & Crossfield’s Purchase in Hamilton County, be the same more or less ”, is not void for uncertainty, and the grantee is entitled to 1,128 acres in the said northwest corner, if there be so much, and, if not, he is entitled to what is there.
    3. Same — Proportional payment of taxes on a whole tract — Invalidity of a sale for taxes after payment.
    Where the owner of a part of such a tract pays to the ’Comptroller that exact proportion of a tax, laid on the whole tract, which her •acreage bears to the whole .acreage, it must be deemed that she has freed her part from"tax; and if the Comptroller thereafter sells it, his act is not an irregularity, which a statute can cure, but is absolutely void; and the same is true of any conveyance executed by him under the sale.
    Action in partition to obtain sale or partition of 1,128 acres in northwest one-fourth of township four (4) Totten & Crossfield’s purchase, Hamilton county.
    Plaintiff claimed title to an undivided tworthirds of premises described in the complaint, under the Comptroller’s tax sale of 1843.
    The township is cut by the town line between towns of Arietta and Morehouse, leaving a triangular strip in town of Morehouse, variously estimated to contain from 600 to 1,000 acres, a portion of which might be included in premises claimed by plaintiff.
    By sales subsequent to the sale under which plaintiff claims title, an undivided one-third of portion in Morehouse became vested in the International Paper Company, one of the defendants, through the defendant Warren Curtis.
    By a subsequent tax sale by the Comptroller in 1871 the whole township was sold to John F. Rathbone and a portion of the triangular portion in Morehouse was conveyed to the defendant William McEchron, who claimed adverse title to so much of premises claimed by plaintiff, as should lie in town of Morehouse.
    The claim of adverse title and the Statutes of Limitation as provided by Laws of 1885, 1893 and 1897 were pleaded to controvert plaintiff’s title.
    Plaintiff introduced evidence claiming taxes to have been paid and the sales of 1866 and 1871 to have been void.
    H. & W. Weston, for plaintiff.
    Griffin & Ostrander, for defendants McEchron and International Paper Co.
   Stoveb, J.

This is an action brought for the partition of certain lands in Township 4, Totten & Crossfield’s Purchase, Hamilton county, H. Y. The complaint contains the usual allegations. The answer of the defendant, The International Paper Company, sets up title absolute to one-third of 1,128 acres, and assails the plaintiff’s title thereto-. It is conceded that the title to an undivided one-third of the property is in the defendant the International Paper Company. The description of the property sought to be divided is as follows:

“ All that tract or parcel of land described in the conveyance thereof from Azariab G. Flagg, Comptroller of the State of Hew York, to Farrand H. Benedict and Marshall Shedd, Jr., dated December 2nd, 1845, recorded in the Office of the Clerk of Hamilton County, Hovember 10,1850, in Book 3 of Deeds, Page 407 as 1,128 acres of land to be laid out as aforesaid, being the northwesterly corner of Township Ho. 4 of Totten & Crossfield’s Purchase in Hamilton County, be the same more or less.” The plaintiff claims to own an undivided two-thirds of said land.

It is not my purpose to follow the various conveyances of title, as the questions involved center around two conveyances introduced by defendant, one a deed dated December 10, 1868, and another deed dated December 29, 1886. These premises were at the time, and ever since have continued to be, wild, uncultivated land, and not actually occupied by any of the parties hereto.

In 1860, an assessment was made against 1,500 acres in the northwest corner of Township 4 of Totten & Crossfield’s purchase. On Hovember 13, 1866, the Comptroller of the State rendered to Parmelia J. Munn a statement of taxes then due upon 1,128 acres, which taxes were paid on the 13th day of Hovember, 1866, by Parmelia J. Munn. The entire amount of taxes assessed against 1,500 acres was $11.02. Parmelia J. Munn paid to the Comptroller $8.29 as the taxes upon 1,128 acres in the northwest comer of Township 4. A calculation will readily determine that the amount of taxes paid by Munn bore the relative proportion to the entire amount of tax that 1,128 acres bore to 1,500, so that the State received the taxes upon 1,128 acres then claimed to be owned by Parmelia J. Munn. notwithstanding this payment, there was a sale of property for the remaining taxes, and the remainder of the premises were sold to John F. Rathbone in 1866, the deed containing the following description:

“ 372 acres, being what remains of 1,500 acres, ¡Northwest comer in the Town of Morehouse, Township ¡No. 4, Totten & CrossfLeld’s Purchase, after excepting therefrom 1,128 acres Northwesterly corner thereof, paid by P. J. Munn.”

The plaintiff holds the Comptroller’s receipts for taxes fr'om 1866 to 1896. 0

As I understand the claim of the defendant McEchron, as stated in the brief, it is, first, that this action cannot be maintained as an action of partition. I think that section 1543 of the Code has conferred jurisdiction, and that the section is applicable to just such cases as this, where all of the parties who claim an interest may be brought into court and the title settled, and partition made between those entitled to it.

The next claim of the defendant is, that the Comptroller’s deed to plaintiff, from the tax sale of 1843, is void for uncertainty of description, the contention being, as I understand it, that the description being uncertain the defendant’s deed is to be construed as conveying all of Township 4 not included within the exception, and that if the deed is void for uncertainty, the title to all is vested in the defendant. But it has been held that such a description as this is not void for uncertainty. The plaintiff is entitled to 1,128 acres in the northwest comer of the township, if there be so much; if not, he is entitled to what there is there. There seems to be no location of the premises, and no setting forth of the tract. In 1870 the State canceled the tax on account of an excess of acreage, the entry stating that there was but 1,128 acres in Morehouse. All the defendant is entitled to is a portion of the township after 1,128 acres have been taken out. To say that such a description as this, confers title .to the whole premises, whatever might be the case where there was an absolute conveyance by certain well-defined metes and bounds, with a reservation of an uncertain portion, seems to me to ignore the ordinary meaning of language. Again, it is said that it-does not appear that the tax for which the premises were sold was not against the 1,128 acres; but I think it must be conceded that where the proportion of the taxes paid is the exact proportion that the land claimed bears to the whole land, and the deed upon its face purports and declares that the taxes on 1,128 acres have been paid by the then owner, there can no longer be any dispute as to whether the tax was paid, what was sold, or what it was sold for. There was no attempt to sell 1,128 acres, and there is no description which indicates that the Comptroller or anybody attempted to sell any more than what remained after the 1,128 acres had been excepted; and even if the Comptroller had attempted to sell any portion of the 1,128 acres, the sale was absolutely void and without jurisdiction. It is not a case of irregularity, but it is a question of jurisdiction. The tax had been paid and accepted by the State, and after that, there was no authority anywhere for the sale of any portion of the 1,128 acres. And so it may he said of any of the sales from 1866 down. As to the 1871 tax sale, it appears that the tax had been paid, and any attempt to sell by reason of the taxes not being paid, was entirely without jurisdiction. So as to the description; there appears to he no description of the land that is in dispute, and the uncertainty, together with the fact that the taxes have been paid upon the premises, rendered the sale without authority. Another objection is that the defendant’s deed having been on record for more than twenty years, is conclusive under the statute. If I am correct in the views above expressed defendant’s deed of the 1866 sale never attempted to convey any interest in the 1.128 acres, and the deed of the 1871 sale was without jurisdiction, and, therefore, not within the statute, which could only cover irregularities.

It follows that the defendant McEchron has no interest in the 1.128 acres; that one-third thereof belongs to the International Paper Company, subject to the mortgage set forth in the complaint; two-thirds belongs to the plaintiff; that Warren Curtis has no interest in the premises; that Benjamin F. Baker and wife have transferred their interest, and that Fanny Wallace is entitled to an inchoate right of dower interest in the undivided two-thirds.

Ordered accordingly.  