
    HENRIETTA FRANKLIN, Appellant, v. EDWARD PEARSALL, et al., Respondents.
    
      Taxes—Sale for in New YorJc—Leases, made on sale, when inoperative to give right to possession.
    
    A lease of lands made upon a sale of lands in the city and county of New York for non-payment of taxes levied for the years of 1874, 1875 and 1876, will not pass any right or interest to the lessee, when either— 1. The assessment roll assesses the lands sold as if they were owned by residents, when in fact they are owned by non-residents ; or, 2. When the warrants for the collection of the taxes were not signed either by the mayor or the recorder ; or, 3. When the description of the ownership of the lands in the pamphlet required by section 13, chapter 381, Laws of 1871, is simply the name of a person in a column, headed “ To whom assessed; ” or, 4. When the affidavit of service of notice of redemption at the time of the comptroller’s certificate next mentioned contains no certificate by the officer taking the oath that the affiant was a credible person ; or, 5. When the certificate of the comptroller attached to the lease, as to proof of service of notice for, and of non-redemption, is not under seal.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
    
      Decided May 3, 1886.
    Appeal from judgment entered on the report of a referee.
    The action was brought to recover possession of certain lands in the city of New York.
    The issues were tried before a referee.
    The facts sufficiently appear in such of the findings as are hereinafter, referred to and in his opinion, which was as follows :
    James A. Patrick, Referee.—“ This action is brought in ejectment to gain possession of premises No. 19 Ludlow street, in the city of New York. Plaintiff claims under a lease from the mayor, aldermen, &c., of the city of New York, for one thousand years, The premises in question were sold for non-payment of taxes for the years 1871 to 1876, both inclusive.
    1 ‘ The first question necessary to be considered is the validity of the assessment of the property in question for the above-mentioned years. The premises are now, and were at the-time of the assessment of taxes for the years 1871 to 1876, owned in common by Edward B. Pearsall, William Pearsall, Julia L. Pearsall, Jane S. Pearsall, Mary Jenkins, and Clara W. Muirhead, all children of one William Pearsall, who died about the year 1868. The property in the years ’71 to ’76 was assessed to ‘ William Pearsall ’ under the title c owner or occupant,” that is, the name William Pearsall appeared on the assessment rolls in a column so headed. All the tenants in common above referred to are non-residents, residing in the state of New Jersey. It is contended by defendants’ counsel that the property in question should have been assessed as nonresident lands. That it was not so assessed there can be no doubt, the witness who had the assessment rolls in charge before me, testifying that the assessment referred to above was the only assessment in the office of the receiver of taxes upon this property for those years.
    “The Revised Statutes, chapter XIII., title2, article 1, § 2, provides £ That land occupied by a person other than the owner may be assessed to the owner or occupant or as non-resident lands.’ During all the years ’71 to ’76 the property in question was not occupied by the tenants in common above referred to, but was occupied by other persons. This assessment in this manner would appear to be in violation of the statute. The assessment is neither made to the owner of the premises nor to an occupant, nor is it assessed as non-resident lands. It might be claimed that the name William Pearsall could as well refer to the son now living as to his deceased father, but even though that be true, the present William Pearsall is not a resident of this county, and is not, therefore, a taxable inhabitant, and further, he is not the owner of the premises in question; he is simply one of several. Where an assessed person is a resident of the county where he is assessed, the assessment of a tax against him creates a debt due by him of a personal nature ; it is true that the debt is a lien upon his property, but that in no way affects the truth of the statement that ifc is the man assessed and not the property that owes the debt. Where a party is not a resident of the comity the assessors have no power to create this indebtedness by inserting his name in the assessment rolls of their county, and if they attempt to do so the assessment is void (Hilton v. Fonda, 86 N. Y. 339). When lands situated in a county are owned by non-residents, the statutes have prescribed a different course ; they must (among other things) be described as ‘ non-resident ’ lands ; the assessment against them creates an indebtedness upon the land itself, and not against any particular person, although the initiatory steps in the two cases may differ but very slightly. Still that difference creates a vastly different liability, and must be strictly followed to become the foundation of a proceeding such as the present. In the case at bar the property was assessed as though it had been owned by one William Pearsall, a resident of and taxable inhabitant in New York county. That was error, the only William Pearsall now living having an interest in this property being a resident of the state of New Jersey. It might be claimed, however, that the assessors having jurisdiction over the land, it lying within their county, could by such an assessment as the present create a charge upon the land, although they failed to name either owner or occupant. In support of this position might be cited the act of 1867, providing that no assessment or tax shall be void on account of a mistake in the name of the party to whom it is assessed. I do not think that it applies to a case where there is no person within the county who can be assessed as owner, and where an attempt has been made so to assess the lands. If that were the intention of the statute (that it should be a matter of no importance to whom the lands were assessed, so long as a description of the property appeared on the assessment rolls), there would be no necessity of, or meaning to,'the further section of the statute (re-enacted in the Consolidation Act), providing that it shall be the duty of the board of aider-men (formerly assessors) to make such change in the description of real property belonging to non-residents as may be necessary to render such descriptions conformable to the provisions of law, and if such alterations cannot be made, they must expunge the descriptions of such real property, and the assessments thereon from the assessment rolls ’ (§ 832 Con. Act). It would appear from the foregoing section that the special act for the city of New York contemplated some difference in the assessment of non-resident lands lying in the city and county of New York. And as the special acts relative to the said city and county contain no provision for the assessment of non-resident lands, we must look to the general acts, the provisions of which I have above stated.
    ££ It further appears that tax warrants for the years 1874, 1875, and 1876, were not signed by either the mayor or recorder, as required by the Revised Statutes (vol. 1, p. 1001, [6 ed.]). The signature of Mr. Vance was appended to the warrants. He appears to have been president of the board of aldermen at that time, and, it was claimed, was acting mayor, through the death of Mayor Havemeyer (he was referred to by the witness who testified on this point, as the predecessor of Mayor Wickham). It appears to me impossible that he could have been acting mayor for the space of three years.
    Another objection raised to the validity of the plaintiff’s title was, that the pamphlet required by § 3, chap. 381, Laws of 1871, did not contain a sufficient description of the ownership of the premises in question as required by that act. There was no description of the ownership, further than that in said pamphlet appeared the words, £ to whom assessed, ’ William Pearsall. This would not appear to be a compliance with the act, which requires £ a detailed statement of the ownership of the property taxed/ &c. In fact, it can hardly be considered any description of the ownership, as under the act the property might be assessed to an occupant; and there appears to be nothing upon said pamphlet showing what William Pearsall was in relation to said premises, further than that it had been assessed to him.
    “The affidavit of service of notice to redeem the premises in question seems, certainly, to be defective, in that at the time of the commencement of this action, and the original filing of such affidavit, it contained no certificate by the officer taking the oath that the affiant, Joseph H. Budd, was ‘a credible person.’ It does now contain such a certificate, but it appears to have been appended thereto since the commencement of this action, as Mr. Brewster was sworn, and testified that shortly after the commencement of this action he examined the said affidavit, and no such certificate was then upon it; Mr. Brewster was not contradicted upon this point.
    ‘ ‘ The certificate of the comptroller attached to the lease, as to proof of service and non-redemption, is not under seal. It was stated by plaintiff’s counsel that there appeared at the foot' of said certificate a mark showing that a seal had been there, but had been rubbed off by handling. On examination, however, it will be at once apparent that the mark on the certificate is produced by the seal upon the lease having been, through the folding of the paper, pressed against that place, and not through any other seal having been there.
    ‘c From all the foregoing I am of opinion that the plaintiff has no right to possession of the premises in question under her tax lease in proceedings of this nature, amounting in effect to a forfeiture of property. All steps required by statute must be strictly followed if the plaintiff desires a valid tax lease upon which She could oust the owners of the premises. I am of opinion that it was not done in this case, and that, therefore, the plaintiff cannot recover.”
    
      The referee reported in conformity with his opinion, and in addition to the facts therein stated, found, among other things, as matter of fact : That the notice to redeem, required by chapter 381, of the act of 1871, which was served upon the defendant, Edward Pearsall, was served upon February 14, 1884; that the lease of the premises, Ho. 19 Ludlow street, from the mayor, aldermen and commonalty of the city of Hew York to Henrietta Franklin, was delivered upon August 20, 1884; and that no notice to redeem the premises in question was served upon William Pearsall, Julia Pearsall, Jane S. Pearsall Clara W. Muirhead and Mary Jenkins.
    Judgment' for defendants against plaintiff was entered in conformity with .the report, from which judgment plaintiff appeals.
    P. & D. Mitchell, attorneys, and of counsel for appellant.
    
      Q. H. Brewster, attorney, and of counsel for respondents.
   Per Curiam :

The judgment should be affirmed, with costs, upon’the opinion of the referee.

Ingraham, J.

concurred, on the ground that the notice required by § 13 of chapter 381, Laws of 1871 was not served, on the owners of the property, and cited Donahue v. O’Conor, 45 Super. Ct. 278  