
    Margaret B. Coie, Resp’t, v. John E. Carl, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 4, 1894.)
    
    1. Taxes—Levy—Question of fact.
    Under the circumstances of this case, it was held to be a question of fact whether the person, against whom the tax was assessed, was the owner or in possession of the goods levied upon under the tax warrant.
    2. Replevin—Demand.
    A demand in such case, is not a prerequisite to maintaining replevin by the owner, where the person, against whom the tax was assessed, was not in possession.
    Appeal from a judgment entered on a verdict, directed by the court in favor of plaintiff.
    
      H. M. Eldredge, for app’lt; C. E. Phillips, for resp’t.
   Mayham, J.

The plaintiff sued the defendant for the alleged conversion of a cow and wagon, of which she claimed to be the owner, and replevies the property, and, the same not being reclaimed by the defendant, the sheriff delivered the possession to the plaintiff. The defendant, in his answer, sought to justify the taking of the property under a warrant for. the collection of taxes, issued to him as collector of taxes for the village of Port Plain. The tax roll and warrant were put in evidence, and directed the defendant, as collector, to collect from the persons therein named the several sums set opposite their respective names on the last

coltimn on such roll. On such roll was a tax assessed against Fidelia Waddell, as executrix of -the last will of Hannah- ¥ Kellogg, deceased, for real and personal estate, which tax amounted to the sum of $82.97, to collect which, as the evidence tended to show, the defendant levied upon.the property in dispute in this-action. The defendant never reduced the property to his actual possession, but, while the same was constructively -under such levy, the plaintiff replevied the same. The evidence shows that-the defendant had,' at a previous year in which he acted as collector, levied upon the same property on a tax against the saíne party, and sold the same in satisfaction for such tax, and -that the property was bid off on such sale by one George Hawn at the request of Mrs. Waddell, and was, with other property, by him sold to the plaintiff under a written bill of sale, which was put in evidence on this trial. The evidence also tended to show that, the real estate Of which Mrs. Waddell’s testator died seised—the land for which this tax was in part assessed and levied—was in the joint possession of the executrix and a tenant of such executrix, who was working the same under contract with her own shares, and that such executrix resided upon a portion of such premises, and that the property in dispute in this action was, at the time of the levy by the defendant on such premises, in the possession of such tenant or such executrix, or both. This evidence, or some of it, was disputed by the evidence on the part -of -the plaintiff; but it seems conceded that the executrix was the owner of this land, either in her own right or as executrix, so that the occupancy and possession by the tenant working such farm on shares, was the occupancy and possession of the executrix for the purpose of the collection of taxes assessed against the executrix upon such lands. Taylor v. Bradley, 39 N. Y. 129. The possession of the farm under such an agreement is so far joint that one cannot maintain trespass against the other. Decker v. Decker, 17 Hun, 13. It would seem, therefore, that under the circumstances of this case it was a question of fact whether or not the person against whom this tax was assessed was the owner or in possession of these goods. The evidence shows that the goods were purchased on the previous tax sale for her or by her direction; and while the bill of sale would seem to transfer the legal title of these chattels to the plaintiff, yet if they were in fact in the possession of Mrs. Waddell, they would be liable to distress and sale for a tax assessed against her. The Revised Statutes (1 Rev. St. p. 397, § 2) provide for the collection of tax “ by distress and sale of any goods and chattels of -the person who ought to pay the same, or of any goods or chattels in his possession; ” and in Hersee v. Porter, 100 N. Y. 403, it was held that actual possession by consent of the owner, although unaccompanied by any ownership in the possession, is within the meaning of the statute. There is in this case some evidence tending to show .that these goods were left on these premises bv the consent of the plaintiff. It vtas therefore, we think, a question of fact for the jury to determine, under the evidence, who had the possession of the farm on which these goods were found by the sheriff, and, if in the possession of Waddell and Hawn, then as to the title of this property, and as to whether or not the plaintifHeft it in possession of the executrix with his consent.

We cannot agree with the contention of the appellant that a demand by the plaintiff of this property was a prerequisite to maintaining an action for these goods. If they were liable for this tax, no demand would relieve them from that liability. If they were not, then the defendant was liable for the original wrongful taking, and replevin in eepit would lie. Nor can we agree that the sale of these chattels for a former tax by this defendant is an estoppel as against him. That sale was not directly from the defendant to this plaintiff, but to George Hawn, a son of one of the occupants of Waddell’s premises. It does not appear that the defendant had any knowledge of a sale by Hawn to the plaintiff. We think the learned judge erred in taking the case from the jury, and that he should, as requested by the defendant, have submitted the question of the ownership by, and of possession in, Mrs. Waddell, under proper instructions, to the jury.

Judgment reversed, and a new trial granted; costs to abide the event.

All concur.  