
    The People of the State of New York, Plaintiff, v. James H. Bain, Defendant.
    (Supreme Court, Warren Trial Term,
    July, 1908.)
    Taxes — Tax titles: Purchaser’s title — Mature of title: Tax deeds — Presumption of regularity of sale — Statute operative as statute of limitation.
    Trespass—Actions — Eight of actions and defenses—Defenses—Assignment of contract by vendee.
    In an action by the people for trespass for cutting a tree on lands in the forest preserve held under a tax deed, where the defendant claims under a deed from the same person to whom the lands were assessed for taxes, both parties are estopped from denying the title of the former owner.
    In such an action the defendant may not dispute the State’s title until he has shown that he was the owner of the land at the time of the assessment or that he has title under or from the former owner.
    
      An assigmnent by a vendee of the former owner to defendant of a contract to convey which implied a right to cut timber upon the land, although the contract was not shown to have been performed or to have ripened into a title when the assignment was made, would nevertheless justify the defendant’s act in cutting the tree if the State did not have title to the land.
    Where the State took title under the Comptroller’s deed in 1890, as to all errors and irregularities in the assessment against the former owner which might have been cured on application to the Comptroller under section 132 of the Tax Law, the provisions of section 131 of said statute operated as a statute of limitation.
    Action in trespass for cutting a tree on the forest preserve.
    John K. Ward (Ellis J. Staley, of counsel), for plaintiff.
    James H. Bain, for defendant.
   Spencer, J.

Both parties claim to have title to the real estate upon which defendant concedes he cut a tree, the people by tax sale upon assessments against one Hugh Clemons, and the defendant under claim of conveyance from the same party. It would seem that both parties must be estopped from denying the title of Clemons.

The defendant challenges the regularity of the assessment against Clemons and claims that the plaintiff must establish in itself a valid title before it can maintain an action against even a stranger. The plaintiff claims that, in an action such as this, for cutting trees on the forest preserve held under tax deed, the defendant may not dispute the State’s title until he has shown that he was the owner of the land at the time of the assessment or that he has title under or from such owner. I think the plaintiff’s contention must be regarded as the settled law of this State in cases such as this. People v. Turner, 117 N. Y. 227; People v. Francisco, 76 App. Div. 262; Andrus v. Wheeler, 18 Misc. Rep. 646, 650.

So far as the defendant is concerned, he has no deed from . Clemons. The only way he connects himself with the-title is by an assignment of a contract to himself, dated February 23, 1906. By this assignment, Clemons assigns whatever right, title or interest he had by reason of an instrument dated November 1, 1880, executed by one Charles Rockwell to Clemons, to which the assignment is annexed. The annexed instrument is not a deed but a contract to convey. There is no evidence that this contract has been performed or ripened into title. It clearly had not when the assignment to defendant was made. The best that may be said of the instrument is that it implies a consent by Rockwell to Clemons to cut timber upon the land, and this may be assumed to be a license which extends to the defendant under his assignment. As all he is charged with doing is the cutting of a tree on the premises, the assignment to him may serve as a justification for his act, if title to the State does not intervene.

The plaintiff took title under the Comptroller’s deed, April 22, 1890. The objections made by the defendant to plaintiff’s title are confined to errors and irregularities in the assessments against Clemons. He claims that, for certain years, the assessments were against the parcel in question and other real estate, as one parcel and at one sum. The Comptroller, in making sale, apportioned the tax among the several parcels. No injury to any one seems to have resulted, and that practice seems to have the approval of the court. Fellows v. Denniston, 23 N. Y. 420, 437, 439. Another objection is that Clemons was assessed as a nonresident. If such were the fact, the error should have been corrected by application to the comptroller. Tax Law, § 140; People v. Turner, supra,; Laws of 1855, § 17, chap. 427; Laws of 1878, chap. 152. The further objections relate to the absence of a venue in one affidavit, and the regular form of the oath of assessor. Formerly such errors were fatal. Shattuck v. Bascom, 105 N. Y. 44; People ex rel Gillies v. Suffern, 68 id. 321; Inman v. Coleman, 37 Hun, 170. But, since the passage of chapter 448, Laws of 1885, applicable to Warren county, such defects are deemed cured by lapse of time. Meigs v..Roberts, 162 N. Y. 371; Laws of 1893, chap. 711, § 11 et seq.; Laws of 1896, chap. 908, § 131 et seq.

Furthermore, all the errors and irregularities complained of might have been cured by application to the Comptroller under the provisions of section 132 of the Tax Law. The provisions of section 131 of the law have, therefore, application as a statute of limitations which has run against the defendant. Meigs v. Roberts, supra; Wallace v. McEchron, 176 N. Y. 424, 428.

It follows that, at the time the defendant did the cutting, title to the land had passed to the plaintiff, and defendant’s right or interest therein had been extinguished, and the cutting constituted a trespass for which the plaintiff may. recover.

Let findings of fact and conclusions of law be submitted in accord with this opinion, according judgment to the plaintiff, with costs.

Ordered accordingly.  