
    Beekman et al. v. Bigham.
    
      Tax-sale. — Effect of deed. — Recitals.
    The recitals in a comptroller’s deed to the purchaser at a tax-sale, given'prior to the act 6th April 1850, are not even primé facie evidence of the existence of the facts which confer the power to sell; they are merely evidence of the regularity of the proceedings.
    Appeal from tlie general term of the Supreme Court, in the fourth, district, where a nonsuit, granted on the trial, had been affirmed, and a motion for a new trial denied.
    This was an action of trespass, by Aletta Beekman and others, against Andrew Bigham, the defendant, for cutting and carrying away certain trees and timber from a lot of wild land in Saratoga county, to which the plaintiffs claimed title in fee.
    On the trial, the only evidence of title given by the plaintiffs, was a deed from the state comptroller to John K. Beekman, hearing date the 1st March 1834, in pursuance of a sale for taxes, reciting that default had been made in the payment of the taxes assessed on said lands in pursuance of chapter 13 of the 1st part of the revised statutes, entitled, “of the assessment and collection of taxes,” which taxes, with the interest and charges thereon, had remained unpaid in the comptroller’s office for two years from the first of May following the year in which they were assessed ; the sale of the lands in question by the comptroller, at public auction, in May 1830, and that they had not been redeemed within the two years prescribed by law for the redemption thereof; that said John K. Beekman had become entitled, by purchase and transfer from the original purchaser at said sale, to the said lands, and conveying the same lands to the said John K. Beekman, in fee.
    Plaintiffs offered evidence to deduce title from John K. Beekman, which was ruled out, as immaterial, on the ground that the comptroller’s deed showed no title in him; to which an exception was ■ taken. The court, then, on motion of the defendant’s counsel, entered a nonsuit; which having been affirmed at general term, and a motion for a new trial denied, the plaintiffs took this appeal.
    
      Warren, for the appellant.
    
      Hay, for the respondent.
   Gray, J.

The revised statutes (vol. 1, part 1, ch. 13) define the property liable to taxation, and the plan and manner in which assessments are to be made, the duties of assessors, the manner of collecting, and the duties of the collector, the return to be made by county treasurers to the comptroller, and make it the duty of the comptroller, when any tax charged on lands returned to him shall remain unpaid for two years from the first day of May following the year in which 'the same was assessed, to advertise and sell the same, and directs the proceedings by the comptroller, preliminary to, and upon the sale, the giving of a certificate, and upon the failure to redeem, the giving of a deed to the purchaser, which deed is declared to be “ conclusive evidence that the salé was regular,” according to the provisions of the chapter referred to. (1 R. S. 412, § 81.)

The appellants’ title to the lands in question rests solely upon the comptroller’s deed, bearing date March 1st, 1834, given in *pursuance of a tax-sale, and without preliminary proof of the proceedings prior thereto. Unless, therefo -e, that deed was evidence, as well of the regularity of the proceedings that conferred upon the comptroller the power to sell, as of the sale itself, the appellants were without title, and not entitled to recover.

These deeds, until since the discussion of a similar question, by the court for the correction of errors, in Striker v. Kelly (2 Denio 323), arising upon a similar statute, were, so far as I am informed, uniformly received as evidence, not only of the regularity of the sale by the comptroller, hut of the action of the officers whose duties preceded his. In the case referred to, the city authorities of the city of New York, under an act of 12th April 1-816 (Laws of 1816, p. 115, § 2), -were authorized to sell, for a term of years, certain lands upon which taxes had been assessed, and to give a lease therefor, which lease was, by the act authorizing it, made “ conclusive evidence that the sale was regular,” according to the provisions of the act authorizing the sale and leasing. In that case, the same question arose upon the lease, that arises here upon the deed, viz., whether the lease was evidence of the authority to sell; and it was held, that without the affidavit of the collector of taxes of the demand by him of the tax, as required by the act, the city authorities had not the power to sell. That case is not distinguishable in principle from the one before us. It has been followed in a case in all respects like this, by the supreme court of the fifth district, in an able opinion by Gbidley, J. (Varick v. Tallman, 2 Barb. 113), and so well has the law upon this point been regarded as settled, that further legislation has been deemed necessary to remedy the defect in the law as it existed when this cause was tried. (Laws of 1850, c. 183.) The judgment of the supreme court should be affirmed.

Judgment affirmed.  