
    Joshua C. Sanders, Plaintiff, v. Charles T. Saxton et al., Defendants.
    (Supreme Court, Kings Special Term for Trials,
    December, 1901.)
    Action against comptroller and commissioners of the land office to remove a cloud on title created by a state tax sale — Void assessment of non-resident lands — Curative statutes when inapplicable.
    Where unoccupied lands of a non-resident of Kings county and the name of the owner are set down in the usual manner in the part of the assessment-roll applicable to residents and are not set down in the non-resident part thereof, the owner is, but the lands are not, assessed; and the facts that the letters “ N. R.” were inserted between the first and second columns of the resident-roll and that a note at its end stated that “ All property in preceding pages marked N. R. is held by non-residents and is to be considered as entered in a separate part of the assessment-roll from the other assessments ” cannot make the taxes levied under the assessment a lien on the lands.
    As they never became a lien, a curative act relative to Kings county taxes irregularly assessed upon the lands of non-residents (L. 1885, ch. 411, § 1) cannot legalize or confirm them.
    Where the state comptroller subsequently sells the lands for unpaid taxes to the State as purchaser at a tax sale, the sale is void and his deed is not saved by those statutes which make it, two years after its record, conclusive evidence of the regularity of the proceedings prior to it, as those statutes relate only to lands assessed in the non-resident part of the assessment-roll.
    A non-resident owner may sue the comptroller and the commissioners of the land office in order to remove the cloud upon his title which has been created by the tax deeds.
    Suit commenced in 1895 to remove clouds upon title to real property situated in the former town of New Utrecht, in Kings county, made a part of the city of Brooklyn by an act passed in 1894 (ch. 451). The suit is against the state officials who are the commissioners of the land office, and also against the state comptroller.
    The clouds are three tax deeds of conveyance made by the state comptroller to the state as purchaser at tax sales, the first dated March 4, 1881, recorded July 1, 1882, for the general taxes of 1868 to 1870, inclusive, the second dated March 19, 1889, recorded March 16, 1891, for the general taxes of 1877 to 1879, inclusive, and the third dated July 16, 1894, recorded May 17, 1897, for the general taxes of 1871 to 1876, inclusive.
    The land was conveyed in fee to the plaintiff by the owners thereof under the regular chain of title in December, 1895, whereupon he took possession and graded it, but it has not been built upon nor fenced in. The state has never taken possession of it.
    Edwin S. Hunt for plaintiff.
    John C. Davies, Attorney General, for defendants.
   Gaynor, J.:

The land was returned to the state comptroller and sold as though the unpaid taxes had been assessed and made a lien upon it; but they had not been. The statute required that the names of the taxable inhabitants and their lands be set down in the assessment roll in a prescribed manner, and that the lands of non-residents shall be designated in the same assessment roll, but in a part thereof separate from the other assessments” (1 R. S. m. p. 391, § 11), in another prescribed manner. And in the former case the lands are not assessed, but only the inhabitants, while in the latter the lands alone are assessed. The land in question was unoccupied, and belonged to a non-recident. It was not set down or assessed at all in the non-resident part of the roll, but the owner’s name and the land were set down in the other part with the taxable inhabitants and their lands in the usual way. The letters N. R.” were set' down between the name in the first column and the entry of the land in the next, however, and at the end of the roll there was a note that All property in preceding pages marked N. R. is held by non-residents and is to be considered as entered in a separate part of the assessment roll from the other assessments.” But it was not so entered. The assessors evidently wanted that to be deemed as done which they had not done; but of course that is impossible. Land was not and could not be assessed in the resident part. It was’ only nonresident land that could be assessed at all, and that in the way prescribed by law, and upon which a lien could be acquired under which it could be sold (1 R. S. 390; Laws of 1855, ch. 427).

Section 1 of chapter 411 of the laws of 1885 purports to legalize and confirm “ taxes * * * on lands of non-residents ” in the towns of Kings county, whether said lands were entered in the several assessment rolls separately as the lands of nonresidents, or otherwise.” The taxes here in question were not in form assessed upon the land at all. If they had been, even though in the wrong part of the assessment roll, this curative act would in terms cover them, but as it is it does not. It only purports to validate taxes in form laid on non-resident lands, whether in the wrong part of the roll or not. It does not purport to validate taxes not so in form laid, i. e., taxes not in form laid on the land, but only laid against individuals. If the intention was to change these latter into liens on land, it should have been so stated. The forms and requirements for assessing non-resident lands are materially different to those assessing the taxable inhabitants (Saunders v. Downs, 141 N. Y. 422), and these latter forms were the only ones complied with.

It follows that there was no lien cast on this land, and that the sale and conveyance by the comptroller were void. But it is claimed that by section 65 of the said act of 1855 (as amended by chapter 448 of the laws of 1885, and made applicable to Kings county by chapter 217 of the laws of 1891), the said conveyances have become valid, and also conclusive evidence of a valid title thereunder in the grantee therein, viz., the state. The said section as so amended in 1885 provides that “ all such conveyances that have been heretofore executed by the comptroller * * after having been recorded for two years in the office of the cleric of the county ” where the land is situated “ shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given ” etc., and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller * * shall be conclusive evidence thereof from and after the expiration of two years from the date of recording such conveyance.”

But this does not apply to the present case at all. The conveyances therein referred to are by the express words of the statute only conveyances of lands assessed as non-resident. The comptroller could not by selling other lands bring them under the said statute. No lien is obtained on any other lands, and the comptroller is empowered to sell no other! Whether we look at the scheme, or the express words, of the said act of 1855, we find that it relates wholly to lands set down in the non-resident part of the assessment roll; and that is the only place in which lands could be assessed at all. If the comptroller were to sell my land although I was a resident, and my name set down and assessed in the resident list, and my land was therefore not assessed at all (as indeed it could not be), would this statute apply? No more does it apply to the present case, where the ownér though a non-resident was set down in the resident list, and his land was not set down in the non-resident list and assessed at all. If the land has been assessed, or, it may be, if there has been an attempt to assess it in due form, then the conveyance becomes conclusive evidence of a good title in the manner prescribed and after the time limited; otherwise the entire act is wholly inapplicable as appears from both its scheme and its express words.

That this action is maintainable against the state officials though not against the state has been heretofore decided (33 Misc. Rep. 389).

Judgment for the plaintiff.  