
    Fannie G. Parsons, App’lt, v. Charles W. Parker, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    1. Taxes—Assessment—Occupied lands.
    An assessment of occupied lands to one, who is neither owner nor occupant, is void.
    2. Same-Sale—Presumption—Rebuttal.
    The presumption of regularity, arising from a tax lease, is rebutted by proof that the taxes, for which the lands were sold, had been previously paid,
    3. Same—Estoppel.
    When the owner of land is not estopped from denying the validity of an assessment in the name of her husband
    Appeal from a judgment dismissing the complaint.
    
      William P. Fiero, for app’lt; Wilson Brown, Jr., for resp’t.
   Brown, P. J.

—This action is to recover possession o£ two lots of land in the town of Mamaroneck, Westchester county, described as Nos. 117 and 118 on a map of lands of Thomas R Hawley. Hawley and his wife conveyed the lots to Henry Parsons, the plaintiff’s husband, in 1871, and in 1874 they were conveyed to the plaintiff. The defendant is in possession, and claims title under two tax' leases made by the supervisor of the town pursuant to a sale of the lots for unpaid taxes under an assessment for the years 1889 and 1890; and the principal question presented is as to the validity of such assessments and the ¡subsequent proceedings resulting in the lease.

The lots were, prior to 1871, a part of the McIntyre farm, but subsequent to that year were assessed separate from said farm, as residence land, in the name of Henry Parsons ; and the only dif-. ference in the assessment for the two years in question is that in 1889 they were assessed as one and in 1890 as two parcels. Parsons and wile were, subsequent to 1882, residents of the town of Bye, in Westchester county, and plaintiff never resided in Mamaroneck. The defendant claimed and the court found that at the time of the assessment the lots were occupied by one S. W. Parker, defendant’s father; and, although the appellant contents that such finding is without support in the evidence, it. is not material to the question presented. The assessment made did not conform with any provision of the statute regulating the manner in which property is assessed. Rev. St. (8th ed.) p. 1094, §§ 1-3. Occu-. pied lands, owned by a person who is a nonresident of the town in which they are situated, but a resident of the county, may be assessed to the occupant, as lands of nonresidents, or to the owner. § 2. The lots in question were not assessed in either manner specified, but as residence lands, to Henry Parsons, who was neither owner nor occupant. The assessment was therefore void. Hilton v. Fonda, 86 N. Y. 339 ; Stewart v. Crysler, 100 N. Y. 378; Sanders v. Downs, 141 N. Y. 422; 57 St. Rep. 580.

The defendant does not seriously contend that the. assessment was valid, but he claims that the plaintiff assented to the mode of assessment, and is now estopped from claiming it to be void. This claim is based upon the fact that up to 1889 the plaintiff’s husband, acting as her agent, annually sent for and paid the tax bills, and never informed the assessors that he had conveyed the lots to his wife, but permitted them to believe that he was the owner, and to ‘assess in his name. Hilton v. Fonda, supra, is relied on to sustain this contention, but that case has no application to the facts of this action. The plaintiff there sought to recover damages from the assessors personally for an illegal assessment; and because his agent informed defendants that plaintiff owned the lands, and appeared -before them when they met officially, and claimed and gave evidence to the effect that the valuation was too high, but made no claim that the lands were assessed as lands of a resident, the court held that the plaintiff waived the observance of the statute, and assented to the mode of assessment, and could not thereafter maintain an action for personal damages against the assessors; but it was also held that the assessment made was, illegal. In this case there is no question presented as to the right of the owner of the land to enforce a personal liability against the assessors. We are concerned only with the question whether the assessment was so made to create a charge upon the land, and it would seem to be too clear to require argument that there can be no lien upon land as the result of a void assessment. But the evidence does not support the finding that the plaintiff consented to the mode of assessment. Nothing was ever done or said by her or her husband with reference to the assessment in question. The plaintiff was under no obligation to inform the assessors of her ownership. The duty to inquire as to the names of taxable inhabitants is enjoined upon the assessors by statute, and, as each assessment is independent of every other assessment, nothing that occurred in prior years could have application to the assessments for 1889 and 1890. Indeed, there can be no presumption that the assessors of those years were the same persons who held the office in prior years. The evidence upon which the waiver is based is that plaintiff’s husband sent for and paid the tax bills which were made out in his name; but there is no evidence that either he or plaintiff ever saw or examined the assessment roll, or appeared before the assessors in their official capacity, or had any conversation with any of them in reference to the lots. The payment of the taxes of one year cannot be deemed to give assent to an illegal mode of assessment in subsequent years, and the evidence does not permit the conclusion that plaintiff misled the assessors into the performance of an illegal act, or that she waived any of her rights. It follows that the defendant acquired no title to the lots by leases based on the assessment for 1889 and 1890.

The defendant, however, claims title under two other tax leases, antedating the assessments of 1889 and 1890. One bears date October 27, 1877, and the other October 5, 1883. Neither the assessment nor the tax upon which either of these leases rest was proven, and does not appear in the case ; but reliance is put upon the statutory provision that “ such lease shall be presumptive evidence that such tax was legally imposed and of the regularity of all the proceedings and of the sale.” Laws 1874, ch. 610, § 6. We are of the opinion that sufficient appears in evidence to overcome the presumption of regularity given by law to the leases, and that they convey no title to the lots in question. As already stated, the lots were a part of a tract of land, of about ninety-acres, known as the “ McIntyre Farm,” owned by Thomas É. Hawley prior to 1871. °The leases of 1877 and 1883 described by bounds “ all that * * * parcel of real estate known as ‘Thomas B. Hawley’s McIntyre Farm,’ eighty-six acres,” etc., and the statute shows that the proceedings to sell related to taxes for the year immediately preceding the sale. The presumption to be drawn from the lease, therefore, is that the tax for the nonpayment of which the McIntyre farm was sold was legally imposed, and was a charge upon lots 117 and 118, and that the proceedings for the sale were regular. But the court found that the lots were conveyed by Thomas B. Hawley to Henry Parsons in 1871, and that in and subsequent to that year they were assessed separate from the McIntyre farm, and that the taxes were paid for every year to 1889; and the case shows in detail the amount of each annual tax, and the time and manner of its payment. It is clear from this evidence that the leases of 1877 and Í883 have no relation to the lots in question, and if the lots lie within the general description contained in those instruments the presumption of the regularity of the proceedings for the sale, so far as it apparently applies to them, is entirely overcome by the fact that the tax imposed on them was paid. The sale of land for taxes, where the tax has been paid, is plainly a void act, and a deed based on such a sale conveys to the purchaser no interest in the land. The other deeds introduced in evidence by defendant, whicli purport to convey the McIntyre farm, were all based, on a conveyance by Thomas R Hawley subsequent to 1871, and do not transfer any interest in or title to the lots in question. The plaintiff clearly established her right to the possession of the property, and the judgment must be reversed, and a new trial granted, with costs to abide the event.  