
    John H. Millard, Appellant, v. Julius Breckwoldt, Respondent, Impleaded with Others.
    
      Comptrollers tax sale —status of the purchaser before he receives a tax deed—right of one who has cut timber on the land to remove it — ah injunction to prevent spoliation of the land ■— notice under section 129 of the Tax Law is necessa/ry.
    
    In an action in equity brought to restrain the removal oí logs and timber from certain lands, it appeared that the plaintiff purchased the lands, which were apparently worth @5,000, for §36.76 at-a tax sale; that he received his certificate of sale on December 10, 1900, and his tax deed on January 23, 1902; that on December 6, 1900, the then owners of the lands entered into a contract by which they gave the defendant, Breckwoldt, the right to cut and remove timber from the premises for a term of three years; that at the time the tax deed was delivered there were upon the land certain logs and timbers which Breckwoldt had cut and piled prior to the delivery of the tax deed.
    The plaintiff never served the notice prescribed by section 129 of the Tax Law . (Laws of 1896, chap. 908) relating to the despoliation of lands sold for taxes, and Breckwoldt received no notice of the tax sale and of the plaintiff’s purchase of the lands until the beginning of the action in equity.
    
      Aeld, that Breckwoldt was entitled to remove the timber cut before the plaintiff obtained his tax deed, and that the plaintiff was only entitled to have him enjoined from cutting any more timber;
    That a purchaser at a tax sale has, during the period allowed for redemption, no estate in the land and has consequently no constructive possession of the premises and no right to go upon them or to make use of them; before receiving his tax deed he has a lien upon the lands purchased for the payment of the purchase money and interest, but his entry upon the premises would be a trespass upon the possession, active or constructive, of the owner, who might recover against him for any injury committed;
    That the owner is entitled, during such period, to cut and remove timber from the lands and generally to exercise all the rights incident to ownership;
    That a tax claimant cannot, therefore,'maintain an action to recover the possession of timber cut on the lands before the issuing of the tax deed;
    That the plaintiff not having served the notice required by section 129 of the Tax Law was not in a position to avail himself of that section.
    Appeal by the plaintiff, John H. Millard, from certain portions of a judgment of the Supreme Court in favor of the defendant, Julius Breckwoldt, entered in the office of the clerk of the county of Herkimer on the 30th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, at the Herkimer Trial Term, modifying a temporary injunction theretofore granted upon the application of the plaintiff, so as to permit the removal by the defendant of certain logs and timber mentioned in the complaint in the action.
    Section 129 of the Tax Law (Laws of 1896, chap. 908), which is cited in the opinion, provides as follows: ' ■ '
    “§ 129. Prohibition of the despoliation of lands sold.—Heither the owner, occupant nor any other person shall have the right to despoil any lands sold for taxes by the comptroller of their value, by the removal of buildings or by cutting, removing- or destroying timber, or other valuable products,' growing, existing or. being thereon at the time of sale. The purchaser of any wild, vacant, or-unoccupied land at the sale thereof by the comptroller, whose bid therefor shall have been fully paid, or his assigns or representatives may at any time before obtaining his deed, causé to be served a notice on any person despoiling such lands or interested in such ' despoliation, either personally or by leaving the same at the residence of such person, ór with any member of his family of suitable age and discretion. The notice shall describe such lands, substantially as sold, shall state that It was sold for taxes by the comptroller, and that ail action to recover the value of the buildings, timber^ or other products destroyed or removed therefrom, after the date of sale thereof, will be instituted against all persons concerned in such despoliation. If such lands shall not be redeemed, every persoú engaged or interested in making such despoliation, upon whom service of the notice shall have been made, shall be liable to pay to the holder of thé tax sale certificate therefor the full value' of. any building so destroyed or removed therefrom, and of all the timber, bark, or other products so cut or destroyed or removed therefrom, from the date of the sale of such land to the termination of such action, and may be restrained by injunction from committing any waste thereon.” .
    
      Robert F. Livingston, for the appellant.
    
      George W. Ward, for the respondent.
   Stover, J.:

. This is an action in equity, brought to restrain the removal of certain logs and timber from lands belonging to plaintiff, who claims under a tax title.. . • .

Plaintiff received a certificate of sale December 10, 1900, and his tax deed January 23, 1902.

The owners of the premises at the time of sale in December, 1900, . were John Kreig, Henry Merz and Henry Freygang, as executors, etc. On December 6, 1900, said owners entered into an agreement with the defendant Breckwoldt by which said Breckwoldt was given thé right to cut and remove timber from the premises for the term of three years at a stipulated price of two dollars per thousand stumpage, but not less than two hundred dollars in any year, and the further privilege of purchasing said premises within three years át a price of .five thousand dollars.

Defendant. Breekwoldt had no notice or knowledge of either nonpayment of tax, the advertisement of sale nor the sale of the premises prior to the commencement of this action. Ho notice prohibiting the despoliation of the lands, as specified in section 129 of the Tax Law (Laws of 1896, chap. 908), was ever served. The amount ' of the plaintiff’s bid at the tax sale was thirty-six dollars and seventy-six cents. The first notice of the tax sale and of plaintiff’s purchase received by any of the defendants was the bringing of this action on February 17, 1902.

At the time plaintiff received his deed (January 23,1902) there wdre certain logs and timber, upon the premises which had been cut and piled prior to the delivery of the deed by the defendant Breekwoldt or those under him under the agreement with the owners. The plaintiff obtained an in j unction pendente lite, restraining the defendants from removing any of the timber or logs from the premises. The trial court dissolved the preliminary injunction and restrained only further cutting of timber, holding that defendant had a right to remove such timber as had been cut before plaintiff obtained his deed. It did not appear that defendant threatened or intended to cut any more timber.

We think the judgment of the trial court was right.

The purchaser at a tax sale has, during the period allowed for redemption, no estate in the land. He has consequently no constructive possession of the premises and no right to go upon them or to make use of them. His entry upon the premises would be a trespass upon the possession actual or constructive of the owner, who might recover against - him for any injury committed. (Cooley Taxn. [2d ed.] 542.)

It follows that the owner still having the legal title and being entitled to possession of the premises, is entitled to the full enjoyment of the land and all rents and profits accruing. It is his right to cut and remove timber and generally to exercise all rights incident to owner-' ship, and this right continues until the time for redeeming the land has fully expired. A tax title claimant cannot, therefore, maintain ■ an action to recover the possession of timber cut on the land before the issuing of a tax deed. (Black Tax Tit. [2d ed.] § 324, and cases cited.)

The purchaser before receiving his deed has a lien for the payment of the purchase money and the interest. (Black Tax Tit. supra.)

There are other features of this casé which justify, the judgment of the trial court. -A court of equity will not impair the right of an owner to the enjoyment of his property further than" may be necessary to protect the rights of the parties. The plaintiff, until he received his. deed, had a lien for thirty-six dollars and. seventy-six ■cents, and'interest; there: is no evidence that he was not amply ■ secured, notwithstanding the cutting of the timber.. He has bought for an almost nominal consideration a tract of land for which defendant Breckwoldt was under the agreement to pay $5,000, if he purchased. In the absence of proof showing injury to plaintiff’s lien, a court of equity ought not to destroy the property of defendant and turn over to plaintiff a large amount, of property for which defendant has paid Several hundreds of dollars. It does not appear that plaintiff has suffered any injury. He fails to show equities.

Plaintiff cites section 129 .of the Tax Law. We think he is not in position to avail himself of that section. The section evidently contemplates that an owner, oí another who has notice of a purchase by another, shall not be permitted to despoil the land. It is not inténded to interfere with the usual enjoyment or the reasonable use of the land. It further contemplates a fair notice to the owner that his land has been sold for taxes and if then he shall persist in despoiling the land he may be restrained. It can have no application tó the case at bar, for neither the owner nor the defendants had any notice of the sale and plaintiff waited until, the time for redemption had expired before-any intimation was given to any party interested that he had or claimed any interest in the premises. Section 129 of the Tax Law requires the notice; as a prerequisite to the maintenance of an action. " • 1

The trialcourt awarded costs to defendant Breckwoldt. Plaintiff was not entitled to enjoin the removal" of the timber and the injunction was not necessary to prévenf further cutting by .defendant, ás the CQurt has found that he did not intend to violate plaintiff’s right and the- action was unnecessary.

The j udgment of .the trial court was right "and should be affirmed.

All concurred.

That portion of judgment appealed from affirmed, with costs."  