
    Harriet E. Joslyn, Adm’rx, App’lt, v. George H. Rockwell et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    1. Taxes—Sale—Laws 1885, chap. 448.
    Chap.li't Laws of 1885, provides that deeds by the comptroller, for nonpayment of taxes, after having been recorded for two years shall six months after the act took eflect be conclusive evidence of the regularity of the proceedings. Said act relates to the collection of taxes on lands of non-residents. And where this statute was invoked but defendants proved that the lands were not those of non-residents at the time they were assessed and taxed as non-resident lands, but were in the occupation of their grantors, and further that the taxes were in fact paid, Held, that such proof was a good defence.
    3. Same.
    The non payment of taxes is a jurisdictional fact and not a mere irregularity, and the above statute did not and could not cure a jurisdictional defect; but related only to matters of form in the proceedings.
    3. Same.
    The fact that under this act the owner might within six months have applied to the comptroller to cancel the sale but did not do so is of no importance, if in fact the taxes were paid. An incorrect statement of a jurisdictional fact cannot authorize the state to take away the property of a citizen, and such statement docs not bind him.
    
      4. Same—Evidence.
    Evidence was given to prove that an assessment roll for a certain year filed in the county treasurer’s office was burned, and that the copy filed in the town clerk’s office had been lost. A copy of the latter copy was admitted. Held, the best evidence which the nature of the case admitted.
    5. Same—Payment oe tax.
    To prove payment of taxes, the collector being dead, the assessment roll was produced and upon the line upon which the assessment and tax were entered appeared the word “ paid” in the collector’s handwriting. It was also shown that it was his custom, upon payment, to make such entries. Held, competent evidence of payment.
    (Mayham, J., dissents.)
    Appeal from a judgment entered upon a verdict of a jury in favor of the defendants.
    The action was for trespass in wrongfully entering upon lands of plaintiff’s grantor and assignor and cutting and converting wood and timber, and for the recovery of treble damage under the provisions of § 1668 of the Code of Civil Procedure.
    The complaint alleges that the defendants were copartners in the lumbering business, and that without leave they entered upon a tract of wild land belonging to Elizabeth Miller and Elizabeth E. Smith, and wrongfully and unlawfully cut and carried away a large quantity of timber and trees standing and growing thereon, and cut said timber and trees into logs, and girdled and stripped and peeled the baric from the hemlock trees and logs, and wrongfully and unlawfully took and carried off from such land and premises such bark and logs without the consent of the owners to their damage of $5,000, and claims judgment under the provisions of §§ 1667 and 1668 of the Code of Civil Procedure for $15,000. '
    The answer denies all the allegations of the complaint, except as therein expressly stated, admitted, or qualified, and on information and belief denies the copartnership and denies any information sufficient to form a belief as to whether Miller and Smith were joint owners, as alleged; also as to whether they conveyed the premises described in the complaint to the plaintiff, and also sold him the claim for damages, as therein alleged.
    The chief controversy on that trial was whether the lands on which the timber and bark was concededly cut, and from which the defendant had taken, or caused them to be taken, were the lands of the plaintiff as described in the complaint.
    The parties respectively introduced the conveyances under which they claimed title to the premises where the timber was cut, and there is much conflicting and unsatisfactory oral evidence bearing upon the question of location.
    
      James C. Rogers, for app’lt; H. A. Howard (J. S. L.Amoreaux, of counsel), for resp’ts.
   Landon, J.

The plaintiff’s right to recover for the trees cut •and carried away by the defendants depended upon the question whether the intestate had established title to the lands upon which the trees stood. That tide depended upon the validity and effect of two deeds from the comptroller of the state to Grerrit Smith, the first executed in 1856, the second in 1869, the first recorded in the Warren county clerk’s office in 1859, and the second in 1869, both purporting to be made because of the non-payment of taxes assessed upon the lands described therein, which description embraced the locus in quo. The taxes upon the non-payment of which the lands were sold by the comptroller were assessed as upon nonresident lands. The defendants claim title under the comptroller’s deed of 1834, and gave evidence tending to show that at the time the taxes were assessed under which the deeds to Grerrit Smith were given the lands were occupied under the defendants’ grantor.

The learned trial judge submitted the question to the jury upon the evidence whether at the time the assessment was made and levied under which the deeds to the plaintiff’s grantor were given the lands were actually occupied by a Mr. Ralph under Abel French, the defendants’ grantor.

Evidence was given by defendants tending to show that the taxes upon the lands in question were paid before the return was made to the comptroller, under whose deeds the plaintiff claims. The trial judge submitted the question of fact to the jury whether such taxes were actually paid.

The trial judge held and instructed the jury that if the lands were occupied under the owner at the time they were assessed and taxed as non-resident lands, that the taxes were void, and the deeds based thereon also void. And that if the taxes had actually been paid before return of this non-payment was made to the comptroller, his subsequent deeds of the lands were void. The jury found for the defendants.

The plaintiff’s counsel asked the court to instruct the jury that the comptoller’s deeds to Q-errit Smith, under whom plaintiff derived title, having been on record in the clerk’s office of the county in which the lands are- situate over ten years, are under chap. 448, Laws of 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made. The court: “Iso charge as to the regularity of the sale, but not conclusive that the taxes were not paid, or were not properly levied.” The plaintiff excepted to the refusal. The court also held that the act in question is not intended to cure jurisdictional defects, but only relates to matters of the form of the proceedings.

We think the rulings of the trial court were right. The plaintiff contended that by virtue of chap. 448, Laws 1885, the comptroller’s deeds under which the plaintiff claims were validated and made unimpeachable either by proof that the lands were occupied or that the taxes had in fact been paid. The act provides that: “ All such conveyances that have heretofore been 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 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.” This act and the act of 1855, of which it is an amendment, are acts in relation to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes.” Occupied lands are not the lands of non-residents. 1 R. S., m. p. 389, § 3; People ex rel. Barnard v. Wemple, 117 N. Y., 77; 26 N. Y. State Rep., 720. If these lands were occupied at the time the assessment was made and the tax levied they were not lands of non-residents ” and the act in question has no application.

But ,the jury under the charge of the court may have found that the lands were non-resident lands but that the tax was paid. As the comptroller’s deed recites the jurisdictional fact of the nonpayment of the tax, if that recital is conclusive evidence of it any common law evidence that it had been paid was erroneously received and the verdict based upon such evidence cannot be upheld. It is held that the legislature may by statute cure omissions and irregularities in such proceedings in the assessment and levying of taxes as it might have originally dispensed with. Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39. It is also held that the provision in chap. 448, Laws 1885, that the comptroller’s deed “ After having been recorded for two years * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto * * * were xegular,” gave to the taxpayer six months in which to question the regularity of the proceeding and was thus a limitation upon his rights in that respect and barred him from subsequently objecting upon the ground of mere irregularities. People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158_

_ But the fact of non-payment is a jurisdictional fact, and not a mere irregularity in the proceedings. Unless there is default in payment of the tax the comptroller has no jurisdiction to sell the lands. As the legislature could in no cáse authorize the comptroller to sell lands for non-payment of taxes except upon actual non-payment, so- after a sale by him of lands as upon- non-payment, when in fact there had been payment, the legislature, within the cases cited, could not ratify or validate such a sale. -For what the legislature could not originally authorize, it could not subsequently ratify and validate. If, by any refinement of statutory limitations or rules of evidence, the state can ultimately confiscate the property of an individual in a case where it never had jurisdiction to proceed at all, then the constitutional guarantee of due process of law would yield to legislative despotism. As said in Howard v. Moot, 64 N. Y., 268, and repeated in People v. Turner, 117 N. Y., 235; 27 N. Y. State Rep., 158, “ A law that should make evidence conclusive which was not so necessarily and of itself, and thus conclude the adverse party from showing the truth, would be void as directly working a confiscation of property or a destruction of vested rights.”

But the act of 1885 further provides : “ But all such conveyances and certificates and the tax sales and taxes on which they are based shall be subject to cancellation as now provided bylaw, on a direct application to the comptroller, or in an action brought before a competent court therefor, by reason of the legal payment of such taxes.” It is claimed that the defendants had six months in which to apply to the comptroller or the court for relief against the comptroller’s deed, “ by reason of the legal payment of such taxes,” and having failed to do so the statute of limitations bars their right to rely upon such a defense, and the comptroller’s deed is conclusive evidence that the taxes had not been paid. What has already been said answers these positions. We cannot suppose that the state has power to spoliate the citizen by commanding that its own ex parte declaration of an untruth must be disproved by the victim of it within a short day, whether he has notice or not, or else he must surrender his estate. Estoppel sometimes promotes justice by suppressing the truth, but al-' ways at the expense of him who told the untruth. Clearly, if the state has made a mistake in asserting a jurisdictional fact to the prejudice of the citizen, it cannot, without subverting due process of law, deprive him of the right to show the truth whenever and wherever any attempt to deprive him of his property is based upon the untruth. The recital of a jurisdictional fact in a judgment is only prima facie evidence of it. Ferguson v. Crawford, 70 N. Y., 253.

The individual who pays his tax has the right to rely upon complete exemption from any proceedings against his land as for non-payment. If the collector and county treasurer make false returns, the individual is put upon no inquiry respecting them. It is timely enough ior him to act when he has notice that action is necessary. In the present case it does not appear that the defendants had'any such notice except by the commencement of this action.

The proper office of a statute of limitations is to put an end to claims which are not asserted within a reasonable time, not to put an end to defenses to such claims. Time is one of the muniments of the possessor’s title and the destroyer of the non-possessor’s claim. We do not think the rule should be reversed so as to make the claim stronger as it becomes staler. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims. Cooley’s Const. Lim., m. p. 366. Here deeds which for more than twenty years were not worth asserting are claimed to be resurrected and validated by statute. But a legislative fiat cannot transfer A.’s property to B. under the guise of confirming invalid tax sales. Cromwell v. McLean, 34 N. Y. State Rep., 85.

The statutes conferring authority upon the comptroller to cancel tax sales are for the protection of the purchaser, not of the taxpayer. The People ex rel. Wright v. Chapin, 104 N. Y., 369; 6 N. Y. State Rep., 837.

Objection was taken to the admission of a copy of the assessment roll filed in the town clerk’s office of the town of Luzerne for the year 1856. Evidence was given tending to show that the roll for that year filed in the county treasurer’s office had been destroyed by fire, and that the copy thereof filed in the town clerk’s office had been lost Such being the case, the verified copy of the copy in the town clerk’s office was the best evidence which the nature of the case admitted. The plaintiff cites People ex rel Wright v. Chapin, 38 Hun, 272. That case did not hold that in no case could the copy in the town clerk’s office be used, but held that if it varied from the original roll in the county treasurer’s office, or from the return made to the comptroller from the original roll, and in case of its loss, the return should prevail. Here no return from the original roll was produced from the comptroller’s office.

Objection is taken to the admissibility of some of the evidence tending to show payment. The assessment roll was produced, the collector was shown to be dead; upon the line upon which the assessment and tax were entered the word “ paid ” in the deceased collector’s handwriting was entered. Evidence tending to show that it was his custom to make such an entry upon receipt of payment was given. We think the entry was admissible. Livingston v. Arnowx, 56 N. Y., 507; Leland v. Cameron, 31 id., 115. Another assessment roll was produced in which was written the word “ paid ” upon the line upon which the description and tax were entered. The collector testified that he made the entry; that he made no such entry except upon payment of the tax, but that he had no recollection of the transaction. This entry also was admissible. National Ulster Co. Bank v. Madden, 114 N. Y. 280; 23 N. Y. State Rep., 220.

Objection is also taken to the sufficiency of the evidence to show that the lands were occupied at the time of the assessment- and tax. We think the evidence sufficient to justify the presentation of the case to the jury. Smith v. Sanger, 4 N. Y., 577.

The judgment should be affirmed, with costs.

Learned, P. J., concurs.

Mayham, J. (dissenting.)

The first three points made by the appellant for the reversal of this judgment' relate to the alleged insufficiency of the answer, and alleged error in allowing the defendants to amend the same on the trial.

We think the answer was sufficient to put the allegation of the plaintiff’s complaint in issue.

Assuming that the defendants’ “denial of each and every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated or qualified,” is neither a general or specific denial, and not such a denial as is provided for in the Code, People v. Snyder, 41 N. Y., 400; McEncroe v. Decker, 58 How., 250, and the denial upon information and belief of the copartnership alleged in the complaint is not the form of denial authorized by § 500 of the Code of Civil Procedure, yet as no motion was made to strike out these defective allegations in the answer or for judgment on that account, and as the second, third and fourth subdivisions of the answer deny any knowledge or information sufficient to form a belief, and each concludes with an express denial of the matters which it purports to answer, the whole answer taken together must be held sufficient to put in issue the allegations of the complaint.

Nor do we think the allowance of an amendment of the answer on the trial error.

Section 723 of the Code of Civil Procedure authorizes the court at the trial to allow an amendment of pleadings in the exercise of a sound discretion where justice will thereby be promoted, Rosenwald v. Hammerstein, 12 Daly, 377, and as the plaintiff in this case made no proof that she was misled to her prejudice by the amendment, it must be assumed that the discretion was properly exercised. Code of Civil Procedure, § 539.

The plaintiff claims title to the locus in quo under two deeds from the comptroller of the state of New York to Grerrit Smith, alleged to have been given on tax sales, one dated the 6th day of March, 1856, and purporting to convey 208 acres conveyed by the following description:

“ Also two hundred and eight acres (208) to be laid out as aforesaid, being the south part of subdivision No. 4 of lot No. 5 in the 25th allotment of Kayaderosseras Patent.”

The other deed bears date the 13th of January, 1869, and purports to convey 150 acres described in the deed as follows:

“ One hundred and fifteen (115) acres, being the north part, seventy-five (75) acres, and west part, forty (40) acres, subdivision No. 4, Lot No. 5, twenty fifth allotment, Kayaderosseras Patent.”

Grerrit Smith by his will devised the lands described in these conveyances, in and by the residuary clause of the same, one-half •to his wife, and one quarter to his son Greene Smith, and one quarter to his daughter, Elizabeth 0. Miller, each taking an undivided interest as above set forth. Gerrit Smith in and by the fifth, or residuary clause in his will, devised and bequeathed all the rest, residue and remainder of his estate to his wife, Elizabeth F. Smith.

Elizabeth S. Miller and Elizabeth F. Smith by quit-claim deed dated the 4th of July, 1886, conveyed to A. Joslyn the land described therein as follows : “ All that parcel or piece of land situated in the county of Warren, state of New York, being forty •acres in the west part, seventy-five acres in the -north part, and 208 acres in the south part of subdivision No. 4 of lot No. 5 in the 25th allotment of Kayaderosseras Patent, also the right to collect damage for past trespass.”

The grantors in the last mentioned deed also conveyed by quitclaim to the grantee therein, on the twenty-second of July, 1886, another piece of land described as follows:

“ All that tract, piece or parcel of land, situated in the county of Warren, state of New York, being the south half of 250 acres in subdivision three (now known as subdivision two, the McOmber lot) lot six, 25th allotment Kayaderosseras Patent. All right to collect damages for past trespasses on the above land is hereby conveyed.”

The plaintiff also put in evidence a warrantee deed from Charles Newcomb and wife to Calvin Joslyn, purporting to convey the equal undivided half part of “ all that certain tract, piece, or parcel of land situate lying and being in the town of Luzerne, and is a part of subdivision No. 4 in great lot No. 5 in the twenty-fifth great allotment of the Kayderosseras patent.”

The lot is further described in this deed by metes and bounds; and as the same lot described in a deed dated December 9, 1865, given by Charles Newcomb and wife to Abner Wright, Jr.

The plaintiff also put in evidence map of the allotment, with particular descriptions of lots No. 4, 5 and 6 in that allotment.

The plaintiff also put in evidence a certificate of sale by the sheriff of Warren county, on an execution against Aaron 0. Murray, Jr., and John Cameron, to A. Joslyn, of all the right, title and interest of Aaron C. Murray and John A. Cameron, ór either of them, on the 19th day of Mav, 1887, of, in, and to the real estate described as follows:

The equal undivided one third part of the piece or parcel of land described as follows; here follows a description of the land sold, described as 150 acres, being the same premises conveyed to John A. Cameron by Aaron C. Murray and wife by deed Novem-' ber 9th, 1869.

The defendant claims title through a deed from A Del French, dated October 1st, 1880, who claimed to derive his title from Solomon W. Russell and wife, date April 26th, 1837, who claimed title under two deeds, one from the comptroller of the state dated 11th day of February, 1834, and a quit-claim deed from Peter Smith, dated the 9th of November, 1833.

Neither of these deeds seem to have been recorded. The learned judge at the trial held that the plaintiff by his evidence had made out a prima jade title to all of subdivision 4 and great lot 5 of the 25th allotment of the Kayaderosseras patent on which the alleged trespass was committed; but that prima jade title was attacked by the evidence of the defendant, tending to show that the tax sales to Gerrit Smith through whom the plaintiff claims title were defective, and did not convey a valid title as against French, to whose rights the defendant succeeded under a deed from him.

The plaintiff insists that the sale to Smith was conclusive evidence of Smith’s title and that it cannot be assailed in this action, and that it was error to allow evidence of deeds and other papers offered by the defendant tending to show title in defendants and their grantors, or evidence tending to attack the regularity of the comptroller’s deed to Smith, or of the assessments under which the sales were made for which the comptroller’s deeds were executed to Smith, and that the judge’s charge relating to that subject was erroneous. As we have seen the comptroller’s deeds to Smith were dated, respectively, March 6, 1856, and January 19, 1869, and recorded on the 19th day of March, 1859, and on the 3d day of November, 1869, in Warren county clerk’s office.

It does not seem to be disputed that these deeds cover the land on which this timber was cut; but the contention of the defendants is that the comptroller had no right to sell these lands under the assessment under which he assumed to advertise and sell the same, and that the purchaser at that sale could get no greater title than the comptroller had a right to sell under the assessment, the seventy acres claimed by French, as that was no part of the Murray lot on which the assessment was made.

There is great force in this contention unless all parties are concluded by the comptroller’s deed from attacking conveyances under it by the provisions of chap. 448 of the Laws of 1885, which amends chap. 427 of the Laws of 1855 ; § 65 of that chapter is amended so as to read as follows :

“ Such conveyance shall be executed 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 county clerk in which the lands thereby conveyed 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, and all laws directing or requiring the same, or in any manner relating thereto, and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller, shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof, from and after the expiration of the two years from the date of recording ■such other conveyances, or four years from and after the date of issuing such other certificates.”

This section then provides that such certificates are subject to cancellation as now provided by law, or direct application to the comptroller.

Section 2 of this amendment makes it applicable to Warren county.

Stronger language could hardly have been employed by the legislature to make such deeds conclusive, after the lapse of two years from the date of recording, than is used in this amendment.

This amendment makes the conveyance conclusive evidence - from and after the expiration of two years after the date of recording of the deed.

The deeds to Smith were recorded in the proper clerk’s office more than two years before the alleged cutting of this timber, and the title under them to the. lands conveyed became absolute in the grantee, and as there does not appear to have been any proceeding instituted before the comptroller under this act to cancel such conveyances we do not see how they can now be assailed collaterally in this action.

Webster defines conclusive in law to be “ that of which from its nature the law allows no contradiction or explanation, an inference which the law makes so peremptory that it will not allow it to be overthrown by any contrary proof however strong.”

If then, as was conceded by the learned judge at the trial, these deeds conveyed the bcus in quo, so that proof of the deeds and the cutting of the timber made a prima facie case for the plaintiff, then the fact that the deeds of Grerrit Smith were properly recorded more than two years before the commission of the alleged trespass made that case which before the act of 1855 was prima facie conclusive, and precluded all inquiry into the preliminary steps leading up to the making of the deed, and indeed all inquiry in an action at law as to whether the deed was upon the lands against which taxes were in arrears.

In other words, so far as these parties were concerned in this action, it gave to the deeds absolute verity, and excluded all inquiry into their regularity, leaving the parties to stand alone upon the deeds. However harshly this may appear to operate upon the rights of the parties, it seems to be the only construction of which that amendment of 1885 is capable.

The object of the legislature obviously was to quiet tax titles, - and cast upon the land owners the burden of moving promptly after the recording of comptroller’s deeds given on tax sales, either before the comptroller, to have the error, if any has been committed, corrected, or by some other method of procedure to correct the error within two years after constructive notice by the recording of the deed, or that the deed shall become conclusive.

That act was in its nature a short statute of limitation, and it would seem that relief must be sought before it attached, or the remedies were lost.

If the act of 1885, under the conditions specified, made the deed to Smith conclusive, then inquiry into the validity of the assessment, and the circumstances under which the comptroller’s deeds were given, was improper and inadmissible, and the receipt of evidence on the trial under the plaintiff’s objections tending to establish that fact was an error.

In the People v. Turner, 49 Hun, 466; 18 N. Y. State Rep., 26; affirmed in 117 N. Y., 227; 27 N. Y. State Rep., 158, the trial ■court excluded evidence offered of irregularities in the assessment to defeat a comptroller’s deed on the ground that the deed was conclusive, and the general term and court of appeals held the decision was correct, and the evidence was properly excluded, and the general term treated the act of 1885 as a short statute of limi-' ■tation, and upon that subject use this language.

“ It will be seen that the statute acted as a statute of limitations.”

And in discussing the same question, Ruger, Ch. J., in delivering the opinion of the court of appeals, after quoting from the section ¡above referred to of chap. 448 of the Laws of 1885, uses this language : “ With reference to the six months’ provision, it operates as to all existing cases as a limitation upon the taxpayer’s right to assert his claim under pre-existing laws, and as to all future cases provides that the lapse of two years from recording shall make that which was before presumptive evidence only conclusive upon the rights of the parties.

“The act seems to be in its principal aspect one of limitation, :and as such is within the constitutional power of the legislature to •enact as affecting future cases, and we think within the settled rule equally within its power as to existing rights.”

It gives in all cases time for the person aggrieved to establish" "his rights unaffected by the provisions of the enactment, but provides that after the lapse of a certain time the comptroller’s deed .shall be conclusive evidence of the regularity of the proceedings upon which it was based.

Legislation of such a character has frequently been held within the constitutional power of the legislature to enact.

Many other questions are raised on this appeal, among which is the other defendants’ right acquired under the conveyances under Trench’s deed through which they claim, which we are not called upon to examine if we hold, as I think we must, that the judge erred in allowing the evidence tending to attack the regularity of the comptroller’s deed to Smith, through which the plaintiffs claim.

Those deeds, as we have seen, cannot be assailed in that manner, and the allowance of evidence for that purpose was error, for which a new trial should be granted.

I think the judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.  