
    Raquette Falls Land Company, Respondent, v. Albert Hoyt and Others (Doing Business under the Fictitious or Assumed Name of “ The Carthage Lumber Company ”), Appellants.
    Fourth Department,
    November, 1905.
    Tax sales — title acquired through sale by Comptroller under the Revised Statutes, when superior to title acquired under subsequent sale — saving clauses in Tax Law of 1850 construed — tax title to lands exempt from taxation invalid.
    The saving clauses in the Tax Law of 1850 (Laws of 1850, chap. 298) providing that the repeal thereby of the former Tax Law (1 R. S. [8d ed.] 457-468) shall not in any manner affect any tax levied or assessed prior to the year eighteen hundred and' forty-nine nor any proceeding for the collection thereof by a sale * * *• nor the rights of any person which may accrue by reason of any such sale,” construed with the other saving clauses in said act, preserve the rights of persons then entitled to a deed from- the Comptroller under said Revised Statutes.
    Where lands were bid in by the State (plaintiff’s predecessor in title) in 1848, a title so derived-is superior to one acquired by defendants under a subsequent tax sale of the same lands in 1852 by the county treasurer under said Tax Law of 1850. This is so, even though the State did not take its deed until 1855, for the equitable title of the State, acquired in 1848, was superior to the subsequent legal title of the defendants’ predecessor in title, acquired in. 1854, under said second sale.
    Where lands. have been acquired through mesne conveyances from a railroad-company, whose lands, by statute, were exempt from taxation, an adverse title cannot be acquired through a tax sale thereof during the period of' exemption.
    Appeal by. the defendants, Albert Hoyt and others (doing busimess under the name of “The Carthage Lumber Company”), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf, Herkimér on the l'Tth day of September, 1904, Upon the report of a referee.
    E. C. -Emerson, for the appellants.
    
      George N. Ostrander, for the respondent.
   Nash, J.:

This action is in trespass, brought to recover the value of timber cut. and removed by' the defendants from 343. acres oil lot No. 4 and 275 acres on lot Ho. 19, Watson's East Triangle,. Herkimer county, which lands were wild and unoccupied. Each party claims title to the lots- under separate tax sales, but the source of title as to'each lot being different' it is necessary to consider the question of title as to each separately.

The source of title of the respondent to lot 4 is a grant by letters patent from the People of the - State to the- Sacketts Harbor and Saratoga Railroad Company.

In 1848 this land was sold by the State Comptroller for unpaid taxes levied and'assessed in 1840-4843, and on such sale was bid in by -the Comptroller for the People. Ho conveyance was executed until October 10, 1855, when .the Comptroller in consummation of the tax sale made his release in the form of a conveyance of the lands to the People of the State,, which conveyance was recorded in the office, of the Secretary of State.

• In. December, 1852, the same lands were sold by the - county treasurer of Herkimer county for unpaid taxes levied and assessed in 1849, and bid off by David Post, to whom a deed, duly executed under the statute by the county judge and county treasurer, was delivered December 11, 4854, and recorded in- Herkimér county clerk’s office December 5. 1885.

The parties claim title under these respective conveyances — the plaintiff by deed from the railroad company; the defendants by mesne conveyances from David Post.

The tax sale of 1848 was under the Revised Statutes (1 R. S. [3d ed.] 457-468), which provided that unpaid taxes upon nonresidents’.lands should be returned.by the county treasurer to the Comptroller. If the tax and the interest thereon remained unpaid for two years from May first following the year of the assessment, the Comptroller was to advertise the lands' for sale; .sell enough of each parcel to pay the taxes, interest and charges; upon the sale give to the purchaser a certificate showing when he would be entitled to a deed. The ownér was given the right' within two years to redeem ; if not redeemed, a conveyance was to be made to the purchaser, his heirs or assigns, in the name of the People of the State, of the real estate sold which should vest in the grantee an absolute estate in fee simple, subject, however, to all the claims which the People of the State might have thereon for taxes or other liens or incumbrances. 'The Comptroller was required to bid in for the State at any sale of lands for taxes, every lot of land put up for which no person offered to bid, and make certificates of sale describing the lands purchased and specifying the time when the People of the State would be entitled to a deed. Such purchases should be subject to the same right of redemption as purchases by individuals, and if the lands sold should not be redeemed the Comptroller was to execute a release therefor to the People of the State, which should have the same effect and become absolute in the same time and on the performance of like conditions as in the case of conveyances to individuals.

By chapter 298 of the Laws of 1850 these provisions of the Revised Statutes were repealed. By this new tax law, which took effect April 10, 18"50, the county treasurer was required to return to the Comptroller a list of taxes unpaid .on non-resident lands. If the tax and the 'interest thereon remained unpaid for two years from May first following the year of the assessment, the Comptroller was to transmit, before August first thereafter, to the county treasurer, a list, describing each tract or lot of land, with the amount of tax, interest and charges for which the same was to be sold, and upon the receipt thereof the county treasurer was to advertise and sell on the first Tuesday of December,'and .give to the purchaser a certificate describing the lands purchased, the sum paid and ' the time when the purchaser would be entitled to a deed, and transmit to the Gomptrollér a statement of such sales: The owner was

given the right to redeem at any time within two years after the sale, By section 81 of the statute of 1850'it Was provided: “If no person shall redeem such, lands within such two years, the. treasurer and judge of the COunty where the lands were sold shall, at the-expiration thereof, execute to the purchaser, his heirs or assigns, .in the name of the people of this State, a conveyance of the real estate "so sold, which: shall vest in the grantee an absolute estafe in fee' simple^ subject, however, to all the claims which the people of this State may have thereon for taxes or other liens or incumbrances,” By chapter é27 of the-Laws' of 1855 the Tax Law of 1850 was repealed,- and the provisions of the Revised Statutes substantially re-enacted. By section 92. of the act of 1855 it was provided that the repeal should not in any manner affect any tax levied or assessed in-.either of the years 1819, 1850 "and 1851, nor any proceeding for the collection thereof, by sale of the land taxed or otherwise, nor the rights of any person which have accrued or may accrue by reason of any such sale or "proceeding, nor the powers of county treasurers in relation to the collection of the.taxes of 1852 and 1853, except as provided by sections 89 and 90 of the act.

By chapter 820 of the Laws of 1866 it. was further provided:

“ Section 1. All deeds executed in pursuance of law by .the treasurer and county judge of any county, upon any sale had in pursuance of the act, chapter two hundred and ninety-eight of the "laws of eighteen hundred and fifty, entitled An act in relation to the collect tion of taxes on lands of non-residents, and to provide for the salé of such lands for unpaid taxes in the counties where they were assessed,’ shall have the effect to vest in. the grantee therein named an absolute estate in fee simple to the real éstate so sold, subject, however,, tó all claims Which the People of the State may have thereon for taxes, or for or by reason of any other lien, or incumbranc'e, and shall be presumptive evidence that the said 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 to redeem, were regular, according to the provisions of the said act, and all laws directing or requiring the same, of in any manner relating thereto.”

The contention of the appellants is that the act of 1850 contained no saving clause whatever as to the powers of the Comptroller to éxecute conveyances for lands theretofore sold. We think the interpretation put upon the language of the repealing section of the act by the appellants is altogether too limited. The saving clause contained in section lié of the act of 1850 provides that the repeal “ shall not in any manner affect any tax levied or assessed prior to the year eighteen hundred and forty-nine, nor any proceeding for the collection thereof by a sale of the lands taxed or otherwise, nor the rights of any person which may accrue by reason of any such sale or proceeding, nor any sale of lands for taxes which has heretofore been made, nor any rights.or duties of any person growing out thereof.”

We apprehend that the right of a purchaser at a tax sale under the Revised Statutes to a deed at the expiration of the time of redemption was within this saving'clause, and that after the act went into effect an individual purchaser could have compelled the execution of a deed by the Comptroller. But the repealing section expressly excepts “that p^-rt.of section eighty-three of this act relating to conveyances hereafter to be executed by the Comptroller.” The part of section 83 referred to provides that “ all conveyances hereafter executed by the Comptroller of lands sold by him for taxes shall be presumptive evidence that the sale, and all proceedings prior thereto ” were regular. This has reference to conveyances by the Comptroller under the Revised Statutes. Ho authority was given by the act of 1850 to the Comptroller to execute conveyances of lands sold for taxes. ■ Furthermore, section 81 provided that the conveyance to a purchaser of lands sold should vest in the grantee an absolute estate in fee simple, subject, however, to all the claims which the people of this State may have thereon for taxes or other liens or incumbrances.” The habendum clause in the deed to Post recognizes this provision of the statute in this language: “ To have and to hold the same, to the said party of the second part, his heirs and assigns forever, subject to all claims which the people of said State have therein.”

The effect of such a conveyance under the Tax Law of 1850 was considered in the case of Raquette Falls Land Co. v. International Paper Co. (41 Misc. Rep. 357; affd. without opinion, 94 App. Div. 609 ; 181 N. Y. 540). The action was in ejectment, but the position of the parties as to title was the same. It Was held that, as against the equitable title of the State, acquired by a tax sale in 1848 for taxes of 1844, a sale of the same land in 1852 under the Tax Law of 1850 for taxes assessed in 1845 was wholly without authority and conferred upon the grantee no title whatever. It is sought by the appellants to distinguish the case now before us from Wells v. Johnston (55 App. Div. 484 ; 171 N. Y. 324), the authority relied npgn in the case of the International Paper Company, as follows: “ In (the Johnston Case) the taxes under which the plaintiff .claimed were levied after the period for redemption on the former sale had expired and the sale was not had until after a deed had been executed to -the State on such former sale; whereas^ in this case, the second tax was levied before the period for redemption expired, and sale was had and deed executed before the State became the owner of the land.” For reasons appearing.in the discussion already had, we,are of the opinion that the same force and effect must be given to the equitable title acquired by the State, under the tax sale as to the legal title derived from the subsequent conveyances by' the Comptroller.

The defendants not haying acquired any title whatever in lot 4, as held in the case of the International Paper Company, they are not iñ a position to attack the plaintiff’s title upon any of the other grounds urged in their behalf.

The appellants claim title to 230 acres of lot 19, under a conveyance from the Comptroller to Lawrence J. Goodale upon a sale, in 1877 for unpaid taxes levied and assessed in 1869.

The plaintiff claims title to lot 19 under the tax sale of 1849 and the conveyance by the Comptroller to the People in 1855, which title on November 11, 1863, through various mesne conveyances became vested in the Adirondack Company, a corporation organized under and pursuant to the General Railroad Law (Laws of 1850, chap. 140), and chapter 236 of the Laws of 1863, an act entitled : An act to encourage and facilitate the construction of a railroad along the valley of the Upper Hudson into the wilderness in the northern part of this State, and the development of the resources thereof.”

Section 2 of the act of 1863 provided that said corporation, when so formed, might purchase; take and hold lands in said wilderness, and that-all of said lands should.be free and exempt from all taxation until the 12th day of September, 1883. :

Section 5 provided that such exemption should cease, unless the company should construct and put in operation certain specified portions of its road.

Section 6 provided that the evidence of the construction and operation of the railroad mentioned in the 5th section should be the ■ affidavit of the president, vice-president or chief engineer of said corporation.

Chapter 850 of the Laws of 1868 extended the time for the construction of such railroad. The proofs in accordance with the statute of the construction of such railroad were furnished, and the referee finds that the Adirondack Company duly complied with and performed the conditions imposed upon it by chapter 236 of the Laws of 1863, and the acts amendatory thereof and supplemental thereto, upon which it Was entitled to have its lands relieved from taxation.

The grant of the franchise by the State to the Adirondack Company by which it was provided that the lands purchased by the corporation should be free and exempt from all taxation until the 12th day of September, 1883, constituted an inviolable contract binding upon the State and had the effect of exempting the company from all taxation during the period mentioned in the act. (McGee v. Mathis, 4 Wall. 143 ; Home of the Friendless v. Rouse, 8 id. 430 ; Washington University v. Rouse, Id. 439; Asylum v. New. Orleans, 105 U. S. 362.)

The lands of the company being exempt from taxation, title adverse to the railroad company could not be acquired by a sale for unpaid taxes levied and assessed during the period of exemption.

We do not think that the objections to the-identity of the railroad corporation, or to the proofs relative to the compliance with the provisions of the act or the sufficiency thereof, are well taken.

All concurred.

Judgment affirmed, with costs.  