
    Harriet E. Joslyn, Adm’rx, App’lt, v. George H. Rockwell et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 6, 1891.)
    
    1. Taxes—Sale—Laws 1885, Chap. 448.
    Chapter 448, Laws 1885, which provides that the comptroller’s deed given upon a tax sale shall, two years after record, he conclusive evidence of the regularity of the sale and proceedings, does not purport to cure jurisdictional defects. It raises a conclusive presumption of regularity, leaving to the owner full right to assail the proceedings for any jurisdictional defect.
    2. Same—Defense.
    In an action for trespass in entering lands of plaintiff’s intestate and cutting wood thereon, where the title was claimed under a comptroller’s deed, Held, that evidence was properly admitted to show that the taxes for which the land was sold were assessed as against non-resident lands, while in fact they were occupied by one representing defendants’ grantor, and also that the taxes were paid to .the collector before return was made
    . by him, as the questions were of a jurisdictional character and not covered by the act of 1885.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendant's.
    Action for trespass in wrongfully entering on lands of plaintiff’s intestate and cutting and converting wood and timber.
    
      James C. Rogers, for app’lt; J. S. L'Amoreaux, for resp’ts.
    
      
       Affirming 35 N. Y. State Rep., 888.
    
   Peckham, J.

In Ensign v. Barse, 107 N. Y., 329 ; 12 N. Y. State Rep., 39, the statute provided that, under certain circumstances named in the act, the comptroller’s deed should be “ conclusive evidence ” that “ the sale and all proceedings prior thereto from and including the assessment of the land, and all notices heretofore or hereafter required by law to be given previous to the expiration of the time allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of all laws requiring and directing the same or in any manner relating thereto.”

The plaintiffs here claim title under two deeds from the comptroller to Grerrit Smith, executed by reason of sales of the land for non-payment of taxes. In 1885, long subsequent to such sales and conveyances by the comptroller, the legislature passed the act known as chapter 448 of the Laws of that year, and it was provided therein that after certain times therein stated the deeds of the comptroller executed upon sales for the non-payment of taxes should be “ conclusive evidence ’’ that “ the sale of said lands, 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 two years allowed by law to redeem were regular, and. were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same or in any manner relating thereto.” The comptroller’s deeds, under which the plaintiff claims, were executed and recorded in due time so as to come within the purview of this act.

It is evident that upon the subject of the conclusive character of the comptroller’s deed, the act of 1885 does not differ in any material respect from the act already quoted, and which was under discussion in the case of Ensign v. Barse, supra. It must, therefore, receive the same construction which was given the act in that case. It was there said that the act did not on its face purport to cure jurisdictional defects.

Judge Finch, in the course of his opinion, declared that the act “raises a conclusive presumption of regularity, but leaves the question of the assessors’ jurisdiction and authority unaffected. Thus understood, it comes within the rule which counsel concede , to be correct. It does not make the tax deed conclusive evidence of a complete title, but leaves open to the owner full right to assail the proceedings in any jurisdictional respect.” This construction was concurred in by the whole court. ¡Nothing in the cases of People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158, and Ostrander v. Darting, 37 N. Y. State Rep., 335, enlarges the construction to be given the act of 1885.

It has not been held in any case in this court, that I am aware of, that a statute making a tax deed, after a certain time designated in the statute, conclusive evidence of every fact which ought to exist in order to create a good title under such deed, would be a valid exercise of legislative power as against the original owner who had always been in possession of his land and of all his rights growing out of it, and whose possession remained undisturbed up to the time of the commencement of an action to obtain possession under a tax deed, and where the owner had, in fact, either paid his taxes before sale, or a merely, formal sale had been made, which was void for want of jurisdiction. The record of a deed from the comptroller, it is contended, would constitute no valid notice. It is claimed that one in possession of all his rights cannot be compelled to resort to legal proceedings, or else run the risk of losing them. The question does not arise in this case, for we hold, as in the case of Ensign v. Barse, supra, that the statute is not to be construed in that way.- There is very weighty authority for holding such a statute, in the case of one in possession, to be invalid. Cooley’s Constitutional Limitations (3d ed.), 366, and cases cited in note 1. We leave the matter without expressing an opinion in regard to it.

For the purpose of showing that the deeds of the comptroller were void, as given without jurisdiction, evidence was offered by defendants and received by the court, which tended to show that the taxes, for the non-payment of which the lands were sold by the comptroller, were assessed as against non-resident lands, while, at that time, they were occupied by some one representing defendants’ grantor. It was submitted by the court as a question of fact to be passed upon by the jury, whether the lands, at the time of the assessment, were occupied. There was also some evidence, on the part of the defendants, tending to show that the taxes upon these lands were paid to the collector before the return was made by the collector to the county treasurer.

The court instructed the jury that if the lands were occupied when assessed as non-resident lands, or if the taxes had in fact been paid before the return was made to the comptroller, then in the one case the assessment was void and in the other case all proceedings after the payment were void.

We think the court was right in both branches of his charge. The defect was jurisdictional in both cases. The act of 1885, chap. 448, is one by its title relating “ to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes.” It is provided that occupied lands are not the lands of non-residents. 1 R. S., 389, § 3. And where lands of a non-resident of the county are occupied by a resident of the town, an assessment to the owner in the “ non-resident ” part of the roll is illegal, and the lands should be assessed to the resident occupant. People v. Wemple, comptroller, 117 N. Y., 77; 26 N. Y. State Rep., 720. If the lands were occupied the act of 1885 would not apply. We think there was sufficient evidence of occupancy to render it a question for the jury and it was properly submitted as such.

If the taxes had in truth been paid to the collector before he made return to the county treasurer, the right to proceed further toward the sale of the lands for non-payment of the taxes at once ceased. The comptroller had no jurisdiction to make the sale or to execute the conveyances of the lands in question. There was enough evidence of such payment to make it also a question for the jury. We think the evidence of payment to the collectors was properly admitted. Both these questions were of a character not covered by the act of 1885, and no error was committed in receiving evidence relative to them and which tended to show the facts upon which the defendants’ contentions were to be sustained.

We have carefully examined all the other questions raised by the learned counsel and set forth in his able brief, but we think no errors were committed by the trial court in disposing of them.

We are of the opinion that the judgment below is right, and it should therefore be affirmed, with costs.

All concur, except Finch, J., absent.  