
    In the Matter of Acquiring Title to Ritter Place. (In the Matter of the Claim of John Esch for Damage Parcel No. 1.)
    First Department,-
    July 7, 1910.
    Tax — tax lease in Westchester county in 1863 —lease not conclusive evidence of validity of proceedings—section 132 of the Tax Law construed.
    In order to divest the title of the. owner of real property by a tax lease it is essential that the officers attempting to sell the property should comply strictly with all the provisions of the statute which have even, the semblance of benefit to the- owner.
    The provisions of section 133 of- the Tax Law that all tax deeds “ heretofore executed by the comptroller, county treasurer.or county judge * * * which have for two years been recorded * * * shall be conclusive evidence that the sale and proceedings prior thereto from and including the assessment of the lands and all notices required by law to be given * * * were regular and were regularly given, published and served ” do not apply to a tax lease made by 'a county treasurer under a special statute, but the conclusive presumption provided for by the section must be confined to conveyances made either by the Comptroller or a county treasurer which convey to the purchaser a fee simple.
    In an action to determine the right to an award in condemnation proceedings, it is error to reject evidence showing that the provisions of the statute in regard to a sale'for unpaid taxes of .the land condemned had not been complied with by the county treasurer.of "Westchester .county- in giving a tax lease., of the premises under the Laws of 1860, chaper 454, as amended by Laws of 1861, chapter 81.
    
      .Motion to confirm referee’s report.
    ' F. W. Hottenroth, for the petitioner,. John Esch.
    
      Henry G. Sanford, for the claimants, Valentine Mott and others.
   Ingraham, P. J.:

■ In this proceeding, which was to acquire title to certain real property for Ritter place in the city of New York, the commissioners of estimate and assessment made an award for parcel No! 1 on the' damage map of $9,384.33, which sum was deposited with the chamberlain of the city of New York, whereupon John Esch presented a petition to this court asking for the payment of such award. The heirs at law and devisees of Valentine Mott appeared in opposition to this claim of the petitioner, and the question as to who was entitled to this award was referred by this court to a referee who. has reported in favor of the petitioner, and the matter now comes v up for a final order.

The property in question was by deed dated January 15, 1855, conveyed by Mary Waddell to Valentine Mott,-which deed was duly recorded in the office of the clerk of the county of Westchester on the 31st of January, 1855, and it was conceded upon the hearing before the referee that Valentine Mott was the last owner of record of the fee of this lot. On the 1st of August, 1863, a lease was executed by Gilbert S. Lyon, as county treasurer of the county of Westchester, to Jason Rogers;, of the town of Morrisania, which recited that the county treasurer had received from the collector of the town of West Farms an account of unpaid taxes on this plot of land - and the county treasurer by virtue of the power in him vested and after due notice for that purpose published according to law did sell at public auction at the court house in the town of White Plains in the county of Westchester'on the 3d of - February, 1862, "the lot of land therein described for the lowest term-of years for which any person offered to take the same in consideration of advancing the sum necessary to discharge the taxes, interest and expenses due thereon at the time of sale, and that one Henry became the purchaser at such sale- for the term of 1,000 years for the sum of two dollars and fifty-seven cents, that being the amount of tax charged on said parcel or lot with interest and expenses due thereon, and that being the lowest temí of years for which any person, offered to take the same; that the' said parcel or lot of real estate had not been redeemed within the one year prescribed by law for a redemption thereof and that ■ the certifi- . cate of sale had been duly assigned to Rogers, party of the second part, and the county treasurer of the county of Westchester therefore granted, bargained, sold, demised, conveyed and released to Rogers for the term of 1,000 years the said real estate' therein described. This instrument was recorded August 1, 1863, in the office of the register of Westchester county, and the title of Rogers under this lease has become vested in the petitioner. Before the referee the petitioner based his right to this award solely upon the title or interest in the land acquired by this tax lease. The heirs at law of Yalentine Mott then offered evidence tending to show that the provisions of the statute in regard to a sale for unpaid taxes had not been complied with and that no interest in the land had been acquired by virtue of the tax lease. This testimony was objected to by counsel for the petitioner on the ground that under the provisions of section 132 of the former Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908; now re-énacted in Consol. Laws, chap. 60; Law's of 1909, chap. 62) this lease was made conclusive evidence that the sale and 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 time allowed for redemption were regular and were regularly given, published and served according to the provisions of all laws directing and requiring the same or in any manner relating thereto. This contention was sustained by the referee, all evidence in relation to the regularity of this tax sale stricken from the record, and the’ referee reported that the owner of the tax lease was entitled to the award. The question presented is as to the effect of this section 132 of the Tax Law.

It has been the settled law in relation to " the enforcement of tax leases that to divest the title of the owner of real property it was essential that the officers attempting to sell the property for a tax should strictly comply with °all the provisions of the statute “having the semblance of benefit to the owner.” (See Clason v. Baldwin, 152 N. Y. 210, and cases there cited.) So that unless the effect of section 132 of the Tax Law changes this rule of law, the heirs at law of Valentine Mott should have been allowed to prove the irregularity of the tax salé and to have that question considered by the referee. . -

Chapter 427 of the Laws of 1855 was entitled an act in relation to. the collection of taxes on lands of non-residents and to' provide for the sale of such lands for unpaid taxes. It provided for an annual return of the. arrears of taxes by the treasurers of the counties in which the lands were assessed to the Comptroller; that whenever any account of arrears of taxes should be transmitted to the Comp- • troller and any tax charged on such lands shall remain unpaid for two jmars from the first day of May following the year in which thesamé was assessed, the Comptroller should proceed to advertise and sell such lands in the manner therein provided. .

Section 63 provided that if no person should redeem such lands within two years the Comptroller should at the expiration thereof execute to the purchaser, his heirs or assigns, in the name of the people of the State, a conveyance of the real estate so sold which shall vest in the grantee an absolute estate in fee simple. Section 65 provided that all conveyances executed by the Comptroller of lands sold by him for taxes shall be presumptive evidence that the sale and all proceedings prior thereto from and including the assessment of the lands and all notices required by law to be given previous to the expiration of the two years allowed to redeem were regular, according to the provisions of the act and all laws directing or requiring the same or in any manner relating thereto. By chapter 448 of the Laws of 1885 section 65 of this act was amended so as to provide that such conveyances shall be executed by the Comptroller, under, his hand and seal, 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 * * * shall * * * 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 two years from the date of recording such other conveyances or of four years from and after the date of issuing such other certificates.” By chapter 217 of the Laws of 1891 the provisions of this act were made applicable to all counties in the State except the counties of Cattaraugus and Chautauqua and also applicable to all conveyances made by county treasurers or county judges and to all outstanding certificates from county treasurers’ sales.

The act carefully protects the owner of property by awarding ample time for redemption, provisions which give much more protection to the owner of property sold for taxes than is contained in the local act relating to Westchester county providing for leases where land has been sold for non-payment of taxes made by the county treasurer.

Prior to the passage of chapter 217 of the Laws of 1891 the provisions of this act applied only to certain counties in' the State which were subsequently included in what was called the forest preserve, and the provision which made a conveyance conclusive evidence that the sale and all proceedings prior thereto from and including the assessment of the lands and all notices required by law to lie 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 could only apply to sales by the Comptroller and conveyances executed by him. By the express provision of the act this presumption applied only to “ such conveyances ” which were conveyances which should vest in the grantee an absolute estate in fee simple. The act of 1891 (Chap. 217) made the provisions of the act as amended applicable to all the counties in the State except the counties of Cattaraugus and Chautauqua. It provided that all applications made to the Comptroller for the cancellation of any tax sale by any person interested in the event thereof should be heard and determined by him, and his determination should be subject to review by certiorari or otherwise. And then follows the clause: “ The provisions of this act shall also be applicable to all conveyances made by county treasurers or county judges and to all outstanding certificates from county treasurer’s sales.” Just what was intended by this provision does not clearly appear, but I think it would be giving to it a much broader application than was intended to hold that it extended the presumption given to a deed executed by the Comptroller which was to convey a fee simple to the purchaser at a tax sale to a.county treasurer’s lease that had been theretofore executed under special acts which provided for an entirely different system for enforcing payment of taxes and which were applicable to but one county. The Legislature was amending an act which had been applicable to certain counties constituting but a limited area of the State where the Comptroller Was required to sell the lands of delinquent taxpayers where certain safeguards were provided, whereby the owners of the land could prevent a conveyance which would divest them absolutely of all title or interest in it. The object of the act of 1891 was to extend the provisions of the act under which the Comptroller should sell for unpaid taxes to Other counties which would include the county 'of Westchester, and it then provided that the provisions of the act should extend to conveyances made by county treasurers and county judges of the other counties. But that certainly could not be intended to extend to the tax leases made by county treasurers of other counties a ■ presumption which by the. act was only to apply to the Comptroller’s conveyances which would vest in the grantee a good title in fee. The act was-speaking of certain specific conveyances, and had relation only to them. The subject of the effect of' leases given by the county treasurers of Westchester county was not within the purview of the act, and the fact that the act1 itself was to' be applicable to' all conveyances madé by 'county treasurers or county judges does not indicate an intention to provide that the presumption given by the act to a specific conveyance by the Comptroller of the State should also be given to leases by the county treasurers of the State made under a special law which was not then under consideration.

In the year 1860 (Chap. 454). the Legislature passed a special act authorizing the sale of lands for non-payment of taxes and for the collection of unpaid taxes in the county of Westchester. It pro?

vided that whenever the county treasurer of the county of Westchester should receive from a collector an account of unpaid taxes, as required by law, it should not, be his duty to transmit such an account or any part thereof to the Comptroller, but that such taxes should be collected as thereinafter provided. The .county treasurer was then directed to cause a list of the unpaid taxes on lands and tenements in each town,, with a description of the premises, to be published in a newspaper, with a notice that if such taxes were not paid on or before a certain day such lands and tenements would be sold at public auction for the shortest period of time that any person or persons 'might offer to take the same in consideration of advancing the said taxes and interest and expenses. The county treasurer should then proceed to sell such lands -and tenements on which the taxes should not have been paid, and should give to the purchaser a. certificate thereof specifying the property sold, the term, the sum paid thereon, and the time when the purchaser would be entitled to a lease of such premises. It was then provided that at the expiration of one year from the time of such sale, the purchaser or his assigns should be entitled to a lease of such premises, provided no redemption thereof had been made, and at the expiration of the said one- year the county treasurer was authorized to execute to the purchaser, his executors, administrators or assigns, a lease under the hand and seal of the county treasurer of the lands and tenements so sold for such term as the same shall have been sold, and such lease should be conclusive evidence that the sale was regular according to the provisions of the act. This act was amended by- chapter 81 of the Laws of 1861, and was in force on August 1, 1863, when the lease under which the petitioner claims was executed by .the county treasurer of Westchester county. There is nothing in the act of 1891 which indicates an intention to repeal the special act relating to Westchester county, and certainly nothing to justify the conclusion that it was the intention of the Legislature to give to these leases executed by the 'county of Westchester the presumption that the act of 1855, as amended by chapter 448 of the Laws of 1885, gave to “ such conveyances ” executed by the Comptroller which gave to the grantee a fee. in the premises conveyed. And this conclusion, I think, is strengthened by chapter 711 of the Laws of 1893. By this act the act of 1855, as amended by the acts of 1885- and 1891, was revised, and an act passed which'provided .for sales, by the Comptroller of the State for unpaid taxes and redemption of lands in counties including any portion of the forest preserve'. A method was here provided by which the Comptroller of the State was to sell any lands in . a county including, a portion of the forest preserve returned to him for non-payment of any tax thereon. By section 11 of the act it was provided that the Comptroller should execute in the name of the People of' the State to the purchaser at a sale.a conveyance of any lands sold by him for taxes and not redeemed which should vest in the grantee an absolute estate in fee simple and which should be presumptive evidence that the sale and all the proceedings prior thereto from and including the assessment of the lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions . of law in relation thereto, and it was further provided that after two years from the date of such conveyance such presumption should be conclusive. And by' section 12 it was provided that every such conveyance theretofore executed by the Comptroller, county treasurer or county judge which has for two years been recorded in the office of the clerk of the county should be conclusive evidence to the same effect. By article 2 of that chapter provision was made for sales for unpaid taxes charged on non-resident real estate not in the forest preserve counties ; that the county treasurer should not return to the Comp-' troller such unpaid taxes but should advertise and sell such real estate as therein provided. It was further provided that the provisions relative to conveyances and their effect, cancellation and redemption of lands in counties including the forest preserve are applicable to such sales except as thereinafter specifically provided. Section 34 provides that if such real estate is not redeemed, the county treasurer should execute to the purchaser a conveyance of the real estate so sold which shall vest in the grantee an absolute estate in fee, and the act of 1855, so far as here applicable, and acts ámendatory thereof were repealed by that act. Here it was clearly-intended to confine the effect of this presumption to conveyances of the fee. Ho provision was contained in the act as to the effect of a lease made by a county treasurer prior to the passage of the act, and the provisions of the act allowing a redemption were, not made applicable to such a lease given under a special act relating only to one county. Section 12 of the act provides for the effect of former ■deeds, but it was confined to such conveyances, that is, a conveyance that should vest in the grantee an absolute title in fee simple, which remained in force for two years after the last day allowed by law for redemption from such sale. Section 65 of the act of 1855, which had been amended by chapter 448 of the Laws of 1885, was expressly repealed. The act of 1893 was amended in 1895 and 1896. (See Laws of 1895, chap. 895 ; Laws of 1896, chap. 293.) By chapter 908 of the Laws of 1896 the laws in relation to taxation were revised and the unrepealed portions of chapter 427 of the Laws of 1855, as amended by the subsequent statutes, and chapter 711 of the Laws of 1893, were included in that revision. Article 6 of that act re-enacted the provisions of the 1st article of chapter 711 of the Laws of 1893, which contained the provision in relation to conveyances by the Comptroller of the State and their effect. Article 7 of the Tax Law was a substantial re-enactment of article 2 of chapter 711 of the Laws of 1893, providing for sales by county, treasurers for unpaid taxes. Section 154 provided for the conveyance and its effect, but contained no provision as to the. presumption to be given to leases made by county treasurers prior to the passage of the act, and both chapter 427 of the Laws of 1855 and chapter 711 of the Laws of 1893 were repealed.

I have presented a review of the 'legislation affecting this question as important in determining the effect of section 132 of the Tax Law, as that is the only law that is now in force. The insertion of the word's “county treasurer or county judge” in section 12 of the act of 1893 was evidently for the purpose of validating a sale by the Comptroller and county treasurer or a county judge in counties in winch were included lands of the forest preserve, and section 132 of the Tax'Law was a re-enactment of that provision. 1 think this provision must be confined to conveyances made either by the Comptroller or a county treasurer tinder the various acts to which attention has been called which convey to the purchaser a fee of the property, and have no application to a lease made under a special statute, and are, therefore, not applicable to the tax lease upon which the petitioner here relies. The referee, therefore, erroneously held that, this tax lease was conclusive evidence of the regularity of the proceedings, and the owners of the fee were entitled to introduce evidence to show that the tax lease was irregular in not strictly complying with the provisions of the statute.

It follows that the referee’s report must be set aside and the case referred to another referee to determine the question as to the validity of this tax lease and. the person or persons to whom this award shotild.be made.

McLaughlin, Clarke, Scott and .Dowling, JJ., concurred.

Report set aside and case referred to another referee.. Settle order on notice.  