
    Albert Andrus, Plaintiff, v. W. W. Wheeler, Defendant.
    (Supreme Court, Fulton Trial Term,
    November, 1899.)
    1. Action to set aside patents issued under . a State tax sale — Invalidity of sale where all bids, except that of the State, are rejected.
    Where several pieces of land, assessed as one parcel, after having been advertised for unpaid taxes by the Comptroller and offered by him at a tax sale, are immediately sold to the State and all other bids rejected, because the State claims an interest in some of the individual pieces, no legal sale of the parcel has taken place and the Comptroller has no power to convey under the sale.
    2. Same — ¡Remedy of an owner of pieces of a tract sold as one parcel.
    The owner of particular pieces, who has been deprived, by the form of the assessment and by the attempted sale to the State of the whole parcel, from paying taxes upon or buying in his pieces, may maintain an action to set aside patents of the Comptroller based on such sale and conveying'the whole parcel; and, as the defect is jurisdictional, it cannot be cured by any of the statutes which are designed to quiet titles taken at State tax sales.
    Action to set aside as void two patents issued by the State upon certain land in Franklin county.
    ■ Plaintiff claimed title through a chain of recorded deeds, which titles, it was claimed, were cut off and forfeited by tax sales made in 1881, 1885 and 1890 to the State and upon which the titles conveyed by the patents involved were based.
    
      The lands had been assessed, together with other lands, for certain taxes, which remaining unpaid were returned to the Comptroller who advertised and sold them in one parcel as assessed.
    At the sale the State claimed to own the lands so assessed with the lands claimed by the plaintiff and refused to accept any bid on the parcel, but struck the whole parcel down to the State.
    The plaintiff contended that such alleged sale was void.
    The defendant claimed that the tax deed having been recorded more than two years under certain curative acts rendered the sale regular and valid.
    Cantwell & Cantwell, for plaintiff.
    John P. Hellas, for defendant.
   Stoveb, J.

This is an action brought by the plaintiff to cancel two patents issued to the defendant by the State of New York covering the same lands. The important and controlling question in the case is as to the effect of conveyances alleged to have been made by the State upon certain tax sales. The plaintiff claims title through deeds that have been recorded, and which cannot be questioned, but it is claimed that by virtue of certain sales for unpaid taxes there has been a forfeiture and that the title had passed by reason of these conveyances.

The facts are these: Plaintiff being the owner of the lands, taxes were assessed upon these with other lands as one parcel, and returned as uncollected; and at the sales in question, 1881, 1885 and 1890, these lands, with others, were advertised for sale. At the sale, however, the State claimed the lands, or a portion thereof; no bids were received and the lands were withdrawn from the sale. On behalf of the plaintiff the claim is made that the several parcels being assessed as one lot, there was no opportunity for the plaintiff or his grantors to pay the taxes, and that the act of the State at the sale in claiming the title to the whole, and refusing to sell a portion thereof, rendered the alleged sale void. The contention of the defendant is that if this were true, it is a case within the statute passed to quiet titles acquired at tax sales, and the deed having been on record more than two years is conclusive evidence that the sale was regular, and that all the requirements of the statute had been complied with.

I am of the opinion that the acts of the Comptroller and the auctioneer at the various sales were such as to constitute no sale; that no attempt was made to sell, and that the announcement of the Comptroller that the lands belonged to the State, and the rejection'of all bids, was equivalent to withdrawing the lands from the sale, and that no sale of the lands in question occurred at the time. .

The method of sale was this: As a description of land was read bids were called for, and thereupon bids were received from intending purchasers. In cases, however, where the State owned or claimed the parcel or any interest therein, the announcement “ State ” was made by the Comptroller or his agent, and thereupon all bids were rejected, and the announcement was made by the auctioneer, State.” This, it seems to me, could not in any view be considered a sale of the lands, but whatever form the proceeding might have taken, the auctioneer assuming to strike it off to the State, or the Comptroller thereafter undertaking to execute a conveyance to the State, could not characterize the act itself, but it was simply an announcement on the part of the State that the State was the owner of the parcel, and, therefore, it could not and would not be sold for taxes. If it were true that the State were the owner of the lands in question, then, of course, no one was injured, and there would be no one to question the validity of the act; but where the State is not the owner, but its officers or agents, either willfully or under misapprehension, make a claim which prevents the owner from protecting himself, and which prevents a sale of the premises, it is a proceeding entirely unauthorized by the statute and is not within the contemplation of the statute to quit titles acquired under such sales. These statutes were passed to confirm titles that had been acquired under sales, and only where a sale had been had, but it was not intended to cover a case where no sale had taken place, and where there was no intention that a sale should take place. The failure to sell is not an irregularity, but raises a question of jurisdiction. The Comptroller had no right to give a deed except a sale had taken place, and the withdrawal of the lands from the sale deprived him of any right to> execute a deed, either to the State or to' a third party. There is no authority for the execution of a deed by the Comptroller except after a sale, and this conveyance, so far as there is any legal warrant for it, could just as well have been made to a third party as to the State. It neither added to nor took from the title that the State had already acquired. The Comptroller had no authority to execute the deed. Jurisdiction is acquired only by following the statute, and the statute requires that there shall be a sale before a deed can be executed. In this case, if defendant’s counterclaim is good, there need have been no announcement whatever that the lands' were to be sold, but the Comptroller could have simply declined to put them up for sale on the ground that they were the property of the State, and then announce that the State owned them and no bids would be received, as well as to have read the description and then withdraw them. In either event it is no sale. It was not a sale in form, nor was it the intention of anybody taking part therein that there should be a sale. Therefore, there is an utter failure to comply with the statute, and the deed executed by the Comptroller wras of no force.

It follows that the State acquired no title by virtue of these sales, and that at the time of the conveyance to the defendant, had no title to the lands in question.

The other questions raised by the defendant have been passed upon heretofore by this court, and I see no reason to question the conclusions then arrived at.

Plaintiff is entitled to the relief demanded.

Judgment for plaintiff.  