
    Edwin R. Wallace, Respondent, v. The International Paper Company and William McEchron, Appellants, Impleaded with Others.
    
      Short Statute of Limitations relating to Comptroller's tax sales — it does not apply where no taxes are unpaid.
    
    
      Semble, that the Statute of Limitations contained in section 132 of the Tax Law (Laws of 1896, chap. 908) limiting the time for the commencement of an action to set aside a deed given by the Comptroller of the State of New York upon a tax sale, only runs in favor of those deeds which the Comptroller was authorized to execute, namely, those for unpaid taxes, and does not make valid a void deed of conveyance, nor does it cut off the right of the original owner to show that there were no taxes unpaid when the sale was made.. Per Kellogg, J.
    Appeal by the defendants, The International Paper Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hamilton on the 27tli day of October, 1899, upon the decision of the court rendered after a trial at the Pulton Trial Term, before the court without a jury, adjudging that the plaintiff, Edwin R. Wallace, is seized in fee simple and is the owner of the undivided two-thirds of all of township No. 4 of Totten & Cross-field’s Purchase, lying in the town of Morehouse, Hamilton county, New York, and adjudging and decreeing that the taxes on said parcel of land have been heretofore paid to the Comptroller of the State of New York for the years 1860 to 1896, inclusive, and that all tax sales, certificates and tax deeds made and delivered by said Comptroller for nonpayment of taxes on said parcel of land during said period were issued and delivered by him without authority of law and are null and void, and adjudging and decreeing a sale of the said premises and the appointment of a referee therein for that purpose.
    The action was brought for the partition of, and to determine the right and title of the parties in and to, certain wild and uncultivated lands.
    
      Griffin <& Ostrander, for the appellants.
    
      Homer & Waldo Weston, for the respondents.
   Kellogg, J.:

The trial court determined that the plaintiff had title to an undivided two-thirds of the lands sought to be partitioned and the International Paper Company was the owner of the remaining third ; that William McEchron, who claimed to own the two-thirds interest which the court found was owned by plaintiff, was in fact the owner of no interest whatsoever in such lands. And this conclusion was reached by the learned court through holding that the deed from the State to McEchron was invalid, because the sale was for taxes which in fact had been paid prior to the sale. If the proof established the fact that the taxes had all been paid prior to the sale, the deed to McEchron would, in my opinion, have been void. The Comptroller is authorized to sell lands for unpaid taxes. He has no authority to sell except for unpaid taxes. This power is given to the Comptroller solely to enforce the payment or collection of a tax imposed for a public use, and the power must necessarily vanish with the tax. The learned counsel for appellants urge that the Tax Law, as amended in 1896 (Chap. 908, § 132), treated as a Statute of Limitations and applied in this case, effectually cuts off the right to show that there were no taxes unpaid when the sale was made, and, in this way, a void deed of conveyance, he urges, is made conclusively valid. I do not think that the Legislature has intended to so declare, or has in fact so declared. Nor do I think the Constitution permits the Legislature to so declare. In Cromwell v. MacLean (123 N. Y. 491) Peckham, J., uses this language: “ From People v. Turner (117 N. Y. 227) and Ensign v. Barse (107 id. 329), back through our reports, I have not been able to find a case which points to the existence of a power on the part of the legislature to convey the title of a man’s property from him to another by a mere exercise of the legislative will.” Referring to the Cromwell case and Ensign case, it is true that Cullen, J., in Meigs v. Roberts (162 N. Y. 378), says these were strictly cases “ of a retrospective statute, for no period of time was given within which any party affected could assert his rights.” He also says: “ This principle does not apply to a Statute of Limitations, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right.” And still I do not believe that the court of last resort meant to declare that a short Statute of Limitations could create a title, could make an unauthorized deed, a deed absolutely void in its inception, a conclusively valid one. In other words, I do not think the court intended to declare that the Comptroller might deed to John Doe the Capitol at Albany under the form of a tax deed, and after the lapse of a year from the date of record of the deed, unless some action was taken, that the deed would be conclusive evidence of title. Nor would a Comptroller’s deed of property, against which no tax was ever levied, be at any time good. The Statute of Limitations does not run in favor of such deeds, or against the individual rights opposed to such deeds. The statute, as a Statute of Limitations, runs only in favor of such deeds as are authorized — the deeds of the Comptroller for unpaid taxes. The authority of the Comptroller is stated in the Tax Law (Chap. 908, § 120, Laws of 1896): The comptroller may sell any lands heretofore or hereafter returned to him for nonpayment of any tax thereon, if such tax and the interest thereon, or any part thereof, shall remain unpaid for one year after February first, following the year in which the tax was levied.” This is his only authority to make a sale, and it is specifically provided that he may sell “ so much of such lands as may be necessary to discharge the taxes, interest and charges due thereon at the time, of sale,” — and it is to such authorized sales, and touching deeds given in pursuance thereof, that section 132 refers. Such authorized deeds are made conclusive evidence of title after the lapse of a time- but no unauthorized deed based upon an unauthorized sale, a sgie where there were no unpaid taxes to warrant it, was intended to be covered by this section of the Tax Law. Section 131 provides : “ After the expiration of one year from the time of sale, tih comptroller shall execute in the name of the people of the state "" "" . * a conveyance of any lands so sold Toy Tivmfor taxes.” Section 132 reads, every such conveyance,” etc. That is, conveyance on a sale for unpaid taxes. The contention, therefore, of the appellants that the deed to McEchron is unassailable, and that the owner may not show that there were no taxes unpaid at the time of sale, must fail.

The only other material question which the case presents, as I look at it, relates to the proof of payment of the taxes prior to the sale. The learned trial court found as a fact that the Comptroller sold at the tax sale of 1871 an undivided two-thirds of the lands described in the complaint to Warren Curtis,.and that defendant William McEchron has succeeded to the title, if any, so conveyed; that such sale was for taxes assessed and levied prior to the year 1866. The 'court also found as a fact that all taxes levied prior to 1866 had been paid. In this last finding, the proof shows that the court was in error; that there was existing and unpaid a road tax known as the Hamilton, Herkimer and Lewis road tax for the year 1862. This tax seems to have been authorized by chapter 347 of the Laws of 1853, and appears upon the Comptroller’s sale book as assessed and levied against a parcel described as “ all of said Township (Township 4), not subdivided, H. H. & L. Road, 23,724 acres,” and which parcel includes this 1,128 acres described in the complaint. Township 4 lies partly in the town of Morehouse. The portion in the town of Morehouse was equally liable with other portions of township 4 for this Hamilton, Herkimer and Lewis road tax; and for the year 1862 the tax seems to have been assessed upon the entire parcel of 23,724 acres. The portion in the town of Morehouse belongs in no subdivision, or is not “ subdivided,” hence is included in the general description appearing in the sales book. The tax for 1862, assessed as the Black river State road tax, was paid, but the Hamilton, Herkimer and Lewis road tax does not appear to have been paid. The only evidence of payment of any tax is the memorandum appearing in the sales book of the Comptroller and the receipt of the Comptroller given to Pamelia J. Munn in 1866. In neither does it appear that this Hamilton Reni-inx.st- and Lewis road tax for the year 1862 was paid. The Comptroller, therefore, was authorized to sell, and presumably the sale if 1871 was made to enforce the collection of this unpaid tax. The deed was recorded- February 7, 1887. This action was brought in Í.S99 after the limitation fixed by the Tax Law of 1896, before referred ÍP, had run against the plaintiff’s right to the land or his right to question the validity of the authorized sale.

Upon the proofs the plaintiff had no interest in or title to the lands in question, and the complaint should have been dismissed. The interlocutory judgment should be reversed, with costs.

All concurred; Parker, P. J., Merwin and Smith, JJ., in the result.

Judgment reversed on the law and facts and new trial granted, costs to abide the event.  