
    Bushnell Stevens, Plaintiff, v. Gideon Palmer, Defendant.
    1. An order of the Court, made in proceedings in bankruptcy under the act of Congress of 1841, authorizing the official assignee to convey assets, is valid though it do not fix the time and manner of the sale.
    2. A conveyance of land, by an official assignee in bankruptcy, pursuant to an order of the Court, is not within the prohibition of the statute against conveying lands held adversely.
    3. In order to establish title to land, under a lease by the corporation of the City of New York, for non-payment of taxes, it is necessary to show- that every prerequisite to the power to sell had been complied with. . .
    4. Production of what purport to be the assessment rolls, without proof of their authenticity or the genuineness of the assessors’ signatures, is not sufficient evidence that the taxes therein mentioned were duly imposed.
    (Before Moncrief, BobertSon and Monell, J. I.)
    Heard, October 14;
    decided, November 29, 1862.
    This action was brought to recover possession of a lot of land on Forty-sixth street in the City of Hew York. The cause was tried on the 21st of April, 1862, before Mr. Justice Robertson and a Jury.
    The plaintiff, having shown title to the lot in question, in Daniel B. Tallmadge, by a deed to him from Henry J. Seaman and wife, dated March 1,1836, offered in evidence: First. The petition of said Tallmadge to the District Court of the United States for the Southern. District of Hew' York, dated October 28, 1842, praying for the benefit of the United States bankrupt act, passed August 19, 1841. Second. A decree in bankruptcy, upon such petition entered December 10, 1842. Third. The order of that Court appointing William Coventry H. Waddell, official or general assignees in bankruptcy. Fourth. A report made by such assignees to the District Court, dated June 19, 1861, setting forth, that he had been applied to, to procure the interest of such bankrupt in the lot, for a nominal consideration and costs, the title being of no value to the estate, and asking for authority to sell the lot at private sale. Fifth. Am order of thé Court, that the assignee convey the interest of the bankrupt in the lot. This order was in the following terms: “ On motion of the official or general assignee in bankruptcy, and filing his report: Ordered, that he convey the interests of the bankrupt in certain lots of land situate in the City, County, and State of New York, according to the description of said lands contained in said report.” Sixth. A deed from the assignee to the plaintiff, dated June 20, 1861, conveying the lot in question. The consideration named in the deed was one dollar. It was proved upon the cross-examination of one of the plaintiff’s witnesses, that the defendant was in possession of the lot at the date of the assignee’s deed, and that he had erected a cottage thereon, more than two years prior thereto.
    The defendant moved to dismiss the complaint upon the grounds: 1st. That sufficient authority had not been shown to execute the deed; and, 2d. That the defendant was in possession at the date of the deed.
    The Court overruled the motion and the defendant excepted.
    The defendant produced and proved the record of the proceedings of the sale for alleged taxes in 1846, and proved by the record a sale of the lot in question for alleged taxes, for the years 1841, 2 and 3. The lot was sold for a term of fifty years. He also read in evidence a notice to redeem (among others) the lot in question, published in a city newspaper; also a receipt of the receiver of taxes for the sum of $6.36, received from Francis Nicholson, the purchaser, for purchase-money of two lots, (including the one in question,) at sale for taxes for years 1841, 2, 3, sold to him for fifty years; also a notice of Nicholson, addressed to John Hauser, the last assessed owner of the lot, notifying him of the sale, and a similar notice served on Henry Harnstein, the occupant of said lot; also a lease for fifty years, from the corporation to Nicholson, reciting the tax sale, &c.; also an assignment of the lease, from Nicholson to Edward D. Ewen, under whom the defendant was in possession as his tenant.
    
      William G. McLaughlin, one of the defendant’s witnesses, testified as follows: “ The book I have in ray hand, “ purports to be the assessment roll for the twelfth ward “for the year 1841; it is the only one in existenceit “ shows the valuation, the amount of tax, with a column “to credit the payment; this is the original book, by the “ certificate here; the names of the assessors are at the “ end—William V. Becker and Alexander-; it is an “ assessment roll of all the real estate in the ward.” The book contained the assessment of a tax upon the lot in question. The witness' gave similar testimony of a tax in 1842, and also in 1843. On his cross-examination, he testified that he knew nothing about the assessment, except what appeared in the-books.
    The defendant’s counsel requested the Judge to charge the Jury that the defendant was entitled to a verdict. The Judge refused so to charge, and directed the Jury to find a verdict for the plaintiff, to which refusal and direction the defendant’s counsel excepted. ,
    The Jury found in favor of the plaintiff. The Judge suspended the entry of judgment, and directed the exceptions to be heard in the first instance at the General Term.
    
      John Townshend, for plaintiff.
    I. The decree declaring Tallmadge a bankrupt, ipso facto divested him of his estate in the premises, and vested the title in the assignee, and the assignee’s deed passed it as if Tallmadge had conveyed prior to the decree. (U. S. Bankrupt Act, §§ 3, 15.)
    II. The assignee was an officer of the Court, and made the sale pursuant to its order. The sale was not, therefore, within the statute forbidding the sale and conveyance of land held adversely. (Hoyt v. Thompson, 1 Seld., 320; Tuttle v. Jackson, 6 Wend., 224; Truax v. Thorn, 2 Barb., 159.)
    III. Ho sufficient evidence was adduced of the imposition of any tax.
    IV. The property was not properly assessed. It should have been shown that it was assessed in the name of the owner or occupant, or as unoccupied lands of a non-resident owner.
    Y. The Comptroller had no power to sell until notice in writing had been given to the person from whom the tax was due, requiring payment of such tax, or until an affidavit had been filed, that upon diligent search the person from whom the tax was due. could not be found. The lease was not evidence of the regularity of the proceedings prior the sale. (Laws 1843, 318, ch. 230, art. 2, §§ 7, 8, 9; Id., 321, ch. 230, art. 3, § 1; Id., 328, ch. 230, art. 4, § 2; Laws 1845, 330, ch. 308, § 3; Doughty v. Hope, 3 Denio, 598; Varick v. Tallman, 2 Barb., 113; Beekman v. Bigham, 1 Seld., 366; Van Alstyne v. Erwine, 1 Kern., 331; Leggett v. Rogers, 9 Barb., 406; Tallman v. White, 2 Comst., 66; Platt v. Stewart, 8 Barb., 501; Carter v. Koezley, 14 Abb. Pr., 147.)
    VI. There was no proof of service of notice to redeem. notices, with affidavits that they had been served, were read; but those affidavits constituted no proof either of the service or that the persons served were, in fact, the person last assessed as owner, and the occupier.
    
      George W. Stevens, for defendant.
    I. There was no evidence of seizin, in fact, of either Tallmadge or Waddell, and no action can be maintained by the plaintiff as grantee of Waddell against a party who was in possession of the premises claiming adversely to Tallmadge or Waddell. (1 R. S., 739, § 147; 2 Hilliard on Real Property, 437, 438.)
    II. A constructive adverse possession is sufficient to defeat the plaintiff’s claim. (Cameron v. Irwin, 5 Hill, 272.)
    III. The fact that the defendant improved the premises by building a house, and exercised acts of ownership over them, is evidence of an adverse claim to the title of Tallmadge and Waddell. (Sherry v. Frecking, 4 Duer, 452.)
    IV. There was no authority given by the Court of bankruptcy to Waddell to make a sale of the premises in question to the plaintiff, or to any other person. The bankrupt act, (§ 9,) requires that the Court shall fix- the time and manner of the sale of the bankrupt assets. No such order is shown in this case.
    V. The suit was not commenced within two years after the decree of bankruptcy in Tallmadge’s qase, nor within two years after the right of action accrued to Waddell,'the official assignee. Hence it is barred by the provisions of the bankrupt act. (5 U. S. Stat. at Large, p. 446, § 8.)
    VI. This limitation need not be pleaded in this action.
    
      (a.) It is not a limitation created by any statute of this State.
    (6.) Where a party claims under a statute, and the same statute bars his right, the bar need not be pleaded as a defense, because he must prove himself within the statute.
    "VII. The defendant’s title, under the tax sale by the City of New York, is valid. The regularity of the levying of the tax having been admitted, the lease is conclusive evidence of the regularity of the sale, and that payment of the tax had been properly demanded. (Lawrence’s Tax Laws, p.79; Striker v. Kelly, 7 Hill, 9.) And the notice to redeem, and the service thereof, was sufficiently proved.
   By the Court—Monell, J.

I am of opinion that, the plaintiff acquired the title of .Daniel B. Tallmadge, to the lot sought to be recovered in this action.

The decree in the bankruptcy proceedings vested in the official or general assignee, all the title Tallmadge had in the lot. (U. S. Bankrupt Act, §§ 3, 15.)

The order to sell was made by the Court, and the conveyance to the plaintiff under it, gave him all the title of Tallmadge. I cannot discover any want of power in the Court, to make the order, nor any irregularity in the proceedings or sale, which would vitiate it. The title of Tallmadge prior to the bankruptcy proceedings was not disputed.

The sale was under judicial authority, and therefore not within the prohibition of the statute of sales of lands in the actual possession of a person claiming under a title adverse to that of the grantor. (Tuttle v. Jackson, 6 Wend., 224; Truax v. Thorn, 2 Barb., 159; Hoyt v. Thompson, 1 Seld., 320.)

The plaintiff, therefore, is entitled to recover, unless the defendant has shown a right to hold the premises under the corporation lease.

The statute which provides for tax sales, (Davies’ Laws, p. 864,) unlike the act which authorizes sales for assessments for improvements, (Laws 1816, p. 115, § 2,) does not make the lease evidence of the regularity of the sale, nor is it even prima facie evidence of the power to sell. (Tallman v. White, 2 Comst., 66.)

It was therefore necessary, in order to establish a title under the corporation lease, to show that every prerequisite to the power to sell had been complied with. (Jackson v. Shepard, 7 Cow., 88.)

The act of 1813 (2 R. L., 509, § 2,) prescribes the mode of laying or assessing a tax on real estate. The valuation is determined by assessors, who enter in a book or roll, the valuation, amount of tax, description of property and name of owner or person upon whom the tax is imposed. The book or roll is then signed by the assessors and deposited by them (in the country with the Clerk of the County,) with the receiver of taxes, (Laws 1843, 317, art., 2, § 1,) with a warrant annexed under the hands and seals of the Supervisors, (Id., § 2.) The 9th section of said act provides that immediately after the first of March, the receiver shall publish notice, notifying all persons who have omitted to pay their taxes, to pay the same on or before the first of April next thereafter. Section 1 of art. 3, of the same act, provides, that if the tax remains unpaid on the 15th of April, the Comptroller, upon being furnished with an affidavit that notice had been served by the receiver upon the person from whom the tax is due, as required by the 7th and 9th sections of said act, shall have power to sell.

The only evidence furnished by the defendant, was what purported to be the, assessment, rolls for the years 1841, 1842,1843, for the 12th ward. Ho proof was offered or given to establish their authenticity. Ho evidence that they were indeed the tax books in which the tax on the lot was levied. Hothing to show the genuineness of the signatures of the assessors. In short, they were introduced and relied on, as if proving themselves, or as if the Court could take judicial cognizance of their verity. They were records, and susceptible of being proved in the usual manner ot proving such documents.

There was also an entire absence of proof of the affidavit required by the several sections of the act before referred to, without which the Comptroller had no power to sell.

, A question similar to this was before this Court in Carter v. Koezley, (9 Bosw., 583.) The defendant by his answer claimed the. premises under a corporation lease. The answer did not state by whom, for what causes, or under what- statute the alleged tax was “ imposed nor did it state the amount of tax, or that any part of it was unpaid. Upon demurrer the answer was held insufficient.

It seems to me the defendant’s evidence fell far short of establishing any right in the Comptroller to make the sale, and it follows that the lease, as proof of title, is not sustained.

If this view is correct, it is fatal to the defense.

Without, therefore, examining the, alleged errors and irregularities in the. sale, and subsequent proceedings intermediate the sale and the delivery of the lease,. I am of opinion that the direction given by the Judge to the Jury to render a verdict for the plaintiff was correct.

The plaintiff should have judgment upon the verdict.

Ordered accordingly.  