
    Michael Bennett, App’lt, v. John Peck, Resp’t.
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Taxes—Sale of land fob—When authorized—Laws 1855, chap. 427, § 5.
    Under the general laws of 1855 (Laws 1855, chap. 427, § 5), relating,to the sale of lands for unpaid taxes, after the return of the collector of the taxes assessed in 1869 against a resident owner, it would have been necessary to re-assess the premises in 1870, as and among non-resident lands, and thereafter if the taxes remained unpaid, a return could have been made to the comptroller, whose consequent sale would be authorized, but the law gives uo authority for the sale by him of resident lands assessed and returned as such.
    2. Same—.Jurisdiction of comptroller to make sale—Laws 1841, chap. 154, § 6.
    Section 6, chapter 154, Laws 1841, providing for the charge of certain percentages by way of penalty for the non-payment of taxes, confers no jurisdiction upon the comptroller to make a sale of resident lands when the taxes thereon are returned unpaid, and a deed by him under a sale is invalid.
    Appeal from a judgment of the supreme court, general term, second department, affirming an order confirming the report of a referee in foreclosure proceedings entered in. Kings county.
    
      N G. Moak, for appl’t; E. Burlingame, for resp’t.
   Finch, J.

This action was brought to recover possession of certain real estate situate in the town of New Lots, in the county of Kings. The title of the plaintiff was established, and would have prevailed but for a deed from the-comptroller of the state executed to defendant, upon a sale of the premises for unpaid taxes assessed thereon in the year 1869; and the controversy respects the validity of that deed..

When the assessment was made, the property was in the possession and ownership of one David J. Malloy, who was, a resident of the town of Kew Lots, although the premises were vacant and unoccupied. The tax of 1869 was assessed against Malloy as a resident owner, and in the list of resident taxes, and in 1870 was returned by the collector to the county treasurer of Kings county as unpaid. The latter transmitted it to the comptroller who sold the property in the same manner as if it had been non-resident lands, and executed the deed under which the defendant claims. The courts below held the title thus acquired to be good and thereupon dismissed the plaintiff’s complaint- It is conceded on both sides that, if the general law of 1855 (chap. 427, § 5), applies to the county of Kings, and controls the question in dispute, the tax deed is invalid. Under that act it would have been necessary, after the return of the collector for non-payment of taxes assessed in 1869 against the resident owner, to re-assess the premises in 1870 as and among nonresident lands, and thereafter, if the taxes still remained unpaid, a return could have been made to the comptroller whose consequent sale would have been authorized, but the law gives no authority for the sale by him of resident lands, assessed and returned as such. The respondent, however, claims that the act of 1855, does not apply, but that the rights of the parties are governed by the act of 1841 (chap., 154), which relates specially to the collection of taxes in the county of Kings, and by force of which it is insisted that the return and sale of resident lands was authorized where the taxes remain unpaid. The plaintiff denies the construction put upon the act, and so raises the important question in the case.

The section relied upon (§ 6), reads thus: “whenever any tax shall remain unpaid on the final return of the collectors of the several towns in the county of Kings, and of the .several wards in the city of Brooklyn, to the treasurer of •said county, interest shall become chargeable thereon at the rate of seven per cent per annum on the amount of such tax, and also on the amount of the percentage which may .have accrued thereon in the manner hereinbefore provided; and it shall be lawful to enforce the payment of any such tax with the increase of such percentage or percentages together with such interest thereon as aforesaid on the sale of lands for non-payment of taxes in the manner now provided by law.”

It is said that when this statute was enacted there was no way provided by which lands taxed against residents could be'sold, and the only remedy for collection prior to 1855 consisted in a re-assessment until the land found an owner from whom the accumulation could be collected, and that it was for the purpose of obviating this difficulty that the act of 1841 was passed.

We cannot approve of that construction. The section provides, first, for the charge of certain percentages by way of penalty for non-payment, and then adds interest upon both tax and penalty to be collected when final payment should be secured, but to make that provision effective and applicable, not only to resident, but also to non-resident taxes, the final clause provided that any tax, “together with” the percentages and added interest, might be enforced “on the sale of lands for non-payment of taxes in the manner now provided by law.”

The meaning is that penalty and interest, which might be collected out of the personal property of residents, should also be collected out of the lands of non-residents on the sale of such lands already provided by law. The words are on the sale, not by the sale; and on the sale, not by a sale; and they assume as existing a mode of selling lands for non-payment of taxes to which the new pro visions for penalties and interest shall apply. That is the natural and reasonable construction of the language used, and it is hardly supposable, if the legislature intended so important a change as to make resident lands salable by the comptroller when taxes were returned as unpaid, that the change would be indicated in any other way than by a definite and distinct command. Nobody would have been left to search for it as an inference from inappropriate language, and in a clause devoted to provisions for penalties and interest.

Thus construing the statute it follows that the comptroller had no jurisdiction to make the sale, and his deed is invalid.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur. 
      
       Reversing 10 N. Y. State Rep., 876.
     