
    George W. Ostrander et al., App’lts, v. Erastus Darling, Resp’t.1
    
      (Court of Appeals, Second Division,
    
    
      Filed May 1, 1891.)
    
    1. Title — Tax sale — Cancellation oe, by comptbolleb, without notice.
    This action was brought to recover for timber and bark cut on a certain lot to which both parties claimed title by patent from the state, In 1842 M. took a contract of sale from the land commissioners, paying oné-quarter of the purchase money and giving his bond for the balance in six annual installments, and receiving a certificate from the surveyor general, but made default, and the state resold the lot in 1847. M. redeemed in the same year but died in 1882 without obtaining a patent, which was taken out by his daughter J. in 1884, to whose rights the plaintiff succeeded. Defendant’s title rested upon a tax deed given in 1862, by the comptroller, as purchaser at the tax sale of 1859, to the People, recorded in the former’s office and the clerk’s office in 1877, and upon a patent issued to one C., defendant’s grantor, in 1870. In 1884 plaintiff procured from the comptroller the cancellation of the tax sale of 1859, as not having be n properly advertised for redemption, which was done without disclosure to the comptroller oE the rights of C. and without proper notice to the latter. Held, that G. was a necessary party in the proceeding to cancel the sale and the attempted cancellation was ineffectual to divest defendant of his title.
    2. Same—Notice to bedeem—Evidence.
    A witness, S., a clerk in the comptroller’s office, produced in court a book of newspaper clippings of notices to redeem from tax sales by a certain date, with no affidavit as to length of publication or certificate that they were the notices published. The witness had no personal knowledge of the matter and was not a clerk at the time of the sale. Held, that the evidence was not sufficient to overcome the presumption, created by statute, that the deed of the comptroller to the People of the state, and the subsequent patent to 0., having been recorded for two years, etc., the notice to redeem was regular and published according to law.
    
      Appeal from a judgment of the general term, third department, affirming a judgment entered upon the decision of the court upon trial at circuit without a jury.
    
      Arthur L. Andrews, for app’lts; John M. Carroll, for resp’t.
   Haight, J.

This action was brought to. recover for timber and baric cut and carried away from lot number 20, Ox Bow tract, Hamilton county. Both parties claimed title to the land by patent from the state of Hew York.

It appears that in the year 1842 the land commissioners of the state made a contract of sale to one Andrew K. Morehouse of the land in question; that Morehouse at the time paid thereon one-quarter of the purchase money and gave his bond for the payment of the balance in six equal annual instalments thereafter and received a certificate from the surveyor general of the state. On the 22d of January, 1884, Morehouse died, having never made a claim or demand for the patent of the lot or taken any steps to procure the same. On the 7th of July, 1884, the plaintiff George W. Ostrander and Josephine B. Winchell, who was one of the heirs at law of Morehouse, made an application for a patent under and by virtue of the contract of sale with Morehouse, and in pursuance of such application the People of the state issued to Josephine B. Winchell their patent executed by the governor on the 5th day of August, 1884, in which they granted and quit-claimed to her all the right, title and interest which the People then had to the lot in question, excepting and reserving all gold and silver mines. Such patent was issued pursuant to a resolution of the commissioners of the land office passed August 5, 1884. The plaintiffs, as grantees of Josephine B. Winchell, now have whatever title she obtained by virtue of such patent.

In the month of Hovember, 1859, the land in question was sold by the comptroller of the state on account of unpaid taxes which had accrued against the land prior to that year, and at such sale the lot in question was bid in and purchased by the comptroller for the People of the state and by him conveyed to the People by deed bearing date the 11th day of March, 1862, which deed was recorded in the office of the comptroller in Book 5 on page 147, on March 11, 1862, and in 'the office of the clerk of Hamilton county in Book 12, page 400. May 30, 1877.

On the 4th day of August, 1870, and whilst such deed was in force and valid, the People of the state issued to Patrick H. Crowe their patent executed by the governor under his hand and the seal of the state, in which they duly granted and quit-claimed to him the lot in question together with all the rights, hereditaments and appurtenances to the same belonging or appertaining, excepting and reserving only all gold and silver mines, which patent was countersigned by the secretary of state and recorded in his office in Liber 40 of Patents at page 182, and on the 30th day of August, 1883, was recorded in the clerk’s office of Hamilton county in Book of Deeds, Ho. 17 at page 481. The defendant as the grantee of Crowe is the owner of all the right, title and interest acquired by him under such patent.

Morehouse under his contract of purchase had the right of possession, and under the statutes of the state the land so purchased by him became subject to taxation and to a re-sale in case of default in payment of the taxes assessed thereon. As we have seen, such a sale took place in 1859 resulting in a deed to the state in 1862, thus re-investing the state with the title to the land, and thereafter and in the year 1870 the state reconveys to Crowe. The patent issued to Crowe ante-dates that issued to Winchell by fourteen years, and consequently furnishes a superior title unless it is void for the reason that the notice of redemption did not conform to the statute in stating that unless such lands are redeemed by the day named they will be conveyed to the purchaser.

It appears that m August, 1884, Ostrander applied to the comptroller to have the sale 'of 1859 cancelled for the reason of this ■defect in the notice of redemption, and thereupon a clerk on direction of the comptroller entered upon the book of tax sales of the lands of non-residents in the column under the heading of names of persons redeeming, the words “Cancelled, not properly advertised for redemption.”

If this action on the part of the comptroller effects the cancellation of the sale it operates to divest the defendant of title to the premises in question. We shall, therefore, first consider this question.

It appears that neither Crowe or the defendant had any knowledge of the application of Ostrander to the comptroller for a cancellation of the sale or of the application for the patent that was issued to Winchell. It is not pretended that any notice was in any manner given of such applications. The statute provides that “ Whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever invalid or ineffectual to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the comptroller shall cancel the sale and forthwith cause the purchase-money and interest thereon to be refunded out of the state treasury to the puchaser, his representatives or assigns.”

And again, “ If the discovery that the sale was invalid shall not be made until after the conveyance shall have been executed for the land sold, it shall be the duty of the comptroller, on receiving evidence thereof, to cancel the sale, to refund out of the state treasury to the purchaser, his representatives or assigns, the purchase-money and interest thereon,” etc. Laws of 1855, chap. 427, §§ 88, 85.

It is now contended that under these provisions of the statute the comptroller may, at the instance of any person, cancel the sale without notice to the purchaser and thus cut off any vested interest that he may have acquired. This proposition is somewhat extraordinary, for it permits the comptroller at any time, even many years after the sale and after the land has been made valuable by improvements, to absolutely cut off and deprive parties of the title acquired by them without an opportunity to be heard.

We do not understand this to be the of these provisions. They have already received judicial construction in the cases of Wright v. Chapin, 104 N. Y., 369; 6 N. Y. State Rep., 837, and Ostrander v. Chapin, 105 N. Y., 309; 7 N. Y. State Rep., 209, in which it was held that the provisions were enacted for the benefit of the purchaser and to relieve him from the consequences of a defective tax title; that the owner of the land was not properly a party to the proceeding nor could he be permitted in any way to test the validity of the sale in such proceedings.

Danforth, J., in delivering the opinion of the court in the former case, says: “ The evident object of these provisions was to enable the state to relieve the purchaser from the consequences of a defective tax title, and at the same time replenish its treasury by a speedy collection of the tax withheld from it. The owner of the land is not a party to the proceeding, nor is he permitted in this way to test the validity of the sale or tax. In such a controversy the purchaser would have an interest and a right to its protection in the courts by the.usual course of legal proceedings. The statute contains no intimation of a legislative purpose to deprive him of that right. It gives no process to bring him in; confers no power to compel witnesses. In short, it creates no court; provides for a single transaction to which the comptroller and the purchaser are the only parties."

It is hardly necessary to consider the question further, for it at once becomes apparent that the purchaser is a necessary party in the proceeding to cancel the sale, as he is the one chiefly interested.

We are therefore inclined to the opinion that the attempted cancellation was ineffectual.

It remains to be determined whether the sale was invalid by reason of a defective notice to redeem.

Section 65 of the aforesaid act provides that “ The comptroller’s deed shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required bylaw to be given previous to the expiration of the two years allowed to redeem were regular, according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto."

The only evidence appearing in the appeal book bearing upon the question of a defective notice to redeem was given by the witness Sanger, a clerk in the comptroller’s office, who produced in court a book which contained printed notices clipped from newspapers pasted therein, among which appeared the following: “The Sentinel, Sageville, Hamilton county, July 11, 1861. List of land sold for' arrears of tax of 1859. Comptroller’s, office, Albany, March 20, 1861: Notice is hereby given pursuant to title 2, chapter 427, of the Laws of 1855, that at the sale above mentioned, which closed on the 28th of November, 1859, the following described pieces or parcels of land, situate in the county of Hamilton, were sold for arrears of taxes due thereon, and which remained unredeemed, and that the payment into the treasury of this state of the sum set opposite each lot, piece or parcel of land, will be required to redeem the same respectively at the time for the redemption thereof, which will be on the 28th of November, 1861. Robert Dennison, Comptroller.” “Hamilton county. Description of land remaining unredeemed at comptroller’s tax sale of 1859, Ox Bow tract, lot 20; 250 acres; $8.16.”

There was also a similar notice pasted in the book as having been clipped from the “Democrat,” Johnstown, N. Y., June 4, 1861. There was no affidavit on the part of the publishers of-these newspapers in reference to the length of time that these notices were published in their respective papers. There is no certificate attached to it or proof that they were the notices published.

Sanger, upon cross-examination, testified that he was not in the comptroller’s office in 1859 or in 1861; that he had no personal knowledge that these notices were published anywhere; that what he had stated about their being taken from the paper and pasted in the book was what he had been told; that he had no personal knowledge of the contents of the papers, and that correct notices might have been published for all that he knew. We are inclined to the opinion that this evidence is not sufficient to overcome the presumption created by statute.

The land in question was a wild and uncultivated tract, and not occupied by the plaintiffs or any one in their behalf.

The law of 1855, chap. 427, § 65, was amended in 1885, chap. 448, so as to provide as follows: “ Such conveyances shall be exe>. cuted by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this act takes effect, be conclusive evidence that the 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 by law to redeem, were regular and were regularly given, published and served according to the provisions of this act,” etc.

As we have seen, the deed by the comptroller to the People of , the state and the patent subsequently issued to Crowe were recorded in the office of the clerk of the county of Hamilton more than two years before the passage of this act, and more than six months have elapsed since the act took effect. They are, therefore, brought within the express provisions of the act which makes them conclusive evidence that the notice to redeem was regular and regularly given and published according to law. This act is not in conflict with any of the provisions of the constitution and must, therefore, be deemed to have finally disposed of this question. The People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158 ; Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39; Chamberlain v. Taylor, 36 Hun, 24-38.

The judgment should be affirmed with costs.

All concur, except Parker, J., not voting, and Brown, J.r absent. 
      
       Affirming 25 N. Y. State Rep., 72.
     