Tallman, plaintiff in error, v. White, defendant in error

Tallman, plaintiff in error, v. White, defendant in error. The Comptroller has no power to sell lands for the non-payment of taxes, unless the lands have been regularly assessed and returned with the collectors’ affidavit that the tax remains unpaid, nor until the tax has remained unpaid for the period specified in the statute. The statute declaring the Comptroller’s deed conclusive evidence of the regularity of the sale, applies only to the proceedings to be had after the right and power to sell are acquired. Whether the Comptroller’s deed is even prima facie evidence of the facts on which his power to sell depends, quere. An assessment for taxes of non-resident lands is fatally defective if it contains such a falsity in the description of the parcel assessed as might probably mislead the owner and prevent him from ascertaining by the published notices that his land was to be sold or redeemed. Per Ruggi.es, J. Where a lot of land intended to be assessed is part of a tract which has a known name, and the assessment describes the lot as situated in a different tract, a Comptroller’s deed given upon a sale for non-payment of the tax is void; although there be other matter of description which, if the name of the tract were rejected, would sufficiently identify the lot. Ejectment, brought by Samuel B. White against George C. Tallman, tried at the Onondaga circuit, before Gridley, J. in September, 1847. The premises claimed were a part of block number twenty-nine in the city (then the village) of Syracuse. On the trial the plaintiff deduced a regular title from the state to himself, and proved that the defendant was in possession at the commencement of the suit. He then rested. The defendant then introduced in evidence a deed from the Comptroller of the state to himself, dated January 1, 1846, given upon a sale for taxes which had been assessed in the year 1837. The premises which this deed professed to convey were described therein as follows : “ All that certain piece of land, situated in the county of Qnondaga, to belaid out at the expense of the party of the second part, being what was taxed and returned to the comptroller’s office from the town of Salina, as that part of block number 29 in the village of Lodi, which is bounded west by David S. Colvin’s, thence north eight rods to lands of Philo D. Mickles and company, east by lands of Levi Chapman, and south by Foot-street.” It was admitted on the part of the plaintiff that the above description applied to the lot in controversy in all particulars except the name of the village. The defendant then rested. The plaintiff then gave evidence tending' to show that L >di was the name of a known and distinct tract of land laid out in 1820, under the authority of the state, into lots and*blocks, a map of which was filed in the office of the Surveyor General; that the lands in said tract were subsequently sold by the state as lots and blocks in Lodi, that they had also been assessed in the same manner and were usually so conveyed between private persons; also that there was a block No. 29 in Lodi. It appeared, however, that Lodi was never incorporated as a village, .and in fact that it constituted a part of the village of Syracuse, having been annexed to that village by an amendment to the charter, passed in the year 1835. It also appeared that the nearest part of the tract called Lodi was three-quarters of a mile from the premises in question, and that there was no lot or block in Lodi to which the boundaries and description contained in the comptroller’s deed could be applied. It was also shown that the entry in the Comptroller’s books of unpaid taxes returned from the town of Salina for the year 1837, contained the same description as the deed. Both Syracuse and Lodi were in that town. The evidence having closed the counsel for the plaintiff claimed a verdict on the ground, that if the premises in question were intended by the description contained in the assessment roll, the return to the Comptroller’s office and the Comptroller’s deed, the description was so erroneous in misnaming the village or tract where the premises were situated, that the deed was void. The defendant’s counsel insisted that the comptroller’s deed was conclusive evidence of the regularity of the sale, that the deed was valid and the description therein sufficiently accurate to pass the premises in question. The court held that the plaintiff was entitled to recover, and directed a verdict accordingly. The defendant excepted. The supreme court sitting in the Fifth District denied a motion for a new trial and rendered judgment for the plaintiff. The defendant brought error. W. Hunt, for the plaintiff in error. 1. I; was assumed and admitted by the course of the trial, that the Comptroller’s deed was prima facie evidence of the defendant’s title, and the plaintiff undertook to impeach it. The plaintiff is not now at liberty to assume a different ground, and claim that the defendant did not show the preliminaries necessary to give the Comptroller jurisdiction. (Hunter v. The Trustees of Sandy Hill, 6 Hill, 407, 410; 2 id. 447; 1 id. 118; Jencks v. Smith, 1 Comst. 90.) 2. If the error which is complained of actually existed in the assessment roll, it would not vitiate the proceedings, but a good title would pass notwithstanding. The only jurisdictional facts necessary to warrant a sale are (1.) An assessment of the property; (2.) The non-payment of the tax; (3.) A return to the Comptroller’s office; (4.) The lapse of two years. All other provisions of the statute are directory'merely. There was no evidence of the absence of any jurisdictional fact, and the error in question was too slight to invalidate the sale. (1 R. S. 391, §§ 11, 12, 13, 22, 32, 35, 38, 48, 49, 62, 63, 72, 93, 95; The People, ex rel Smith v. Peck, 11 Wend. 604;. The People v Allen, 6 Id. 486; Jackson v. Young, 5 Cowen, 269 ; Ex parte Williams, 3 Hill, 43 ; United States v. Wyngall, 5 id. 16 ; Stryker v. Kelly, 7 id. 9; Cowen & Hill’s Notes, 1376, 7, &c.; 6 Peters, 344; 3 id. 320, 344; Rich v. Rich, 16 Wend. 663; Wendell v. The People, 8 id. 183, 190; Jackson v. Wendell, 5 id. 142; 9 Cowen, 661.) Furthermore, the Comptroller’s deed was conclusive evidence that there was no irregularity and no want of form in any of the proceedings. George F. Comstock, for the defendant in error. The unpaid tax returned to the comptroller’s office was against a part of block 29 Lodi, and the sale and conveyance by the comptroller were according to the same description. The proof also showed that Lodi was the name of a separate and distinct tract of land, laid out into lots and blocks, under the authority of the state, a map of which was filed in the surveyor general’s office; also that there was a block 29 in Lodi, as well as in Syracuse ; that the lands in this tract were sold by the state, as lots and blocks in Lodi; that they were assessed in that manner, and were usually so conveyed by private persons. The very assessment now in question, and under which the defendant claimed, assesses the land in the Lodi tract separately from any other. Under these circumstances, an assessment and return to the comptroller’s office against a part of block 29 Lodi, gave to that officer no jurisdiction or power to sell a part of block 29 Syracuse ; although in other respects the description of the land is applicable to the latter parcel only. (1 R. S. 391, §§ 11, 12 ; id. 399, § 10 ; id. 402, 3, § 26 ; id. 407, §§ 52, 53 ; Id. 408, 9, §§ 60, 66; Dike v. Lewis, 4 Denio, 237.) The comptroller’s deed is only conclusive evidence of the regularity of the sale, but not of the right and power to sell. It is not evidence, at least not conclusive evidence, of the assessment and of the return to the comptroller. (1 R. S. 411, § 81 ; id. 411, § 80 ; 1 R. L. 517, § 17; Jackson v. Morse, 18 John. 441; Dike v. Lewis, above cited; Laws of 1816, p. .115, §2; Doughty v. Hope, 3 Denio, 594; S. C. 1 Comst. 79 ; Sharp v. Spier, 4 Hill, 76 ; Sharp v. Johnson, 4 id. 92 ; Stead’s Executors v. Course, 4 Cranch, 303; Bloom v. Burdick, 1 Hill, 130; Stryker v. Kelly, 2 Denio, 323 ; Varick v Tallman, 2 Barb. Sup. Court Rep. 113.) [MAJORITY — Ruggles, J.] Ruggles, J. delivered the opinion of the court. The comptroller’s deed is conclusive evidence of the regularity of his sale ; (1 R. S. 411, § 81,) but not of his power to sell. (Jackson v. Morse, 18 John. 442; Stryker v. Kelly, 2 Denio, 322; Doughty v. Hope, 3 id. 603; S. C. 1 Comst. 79.) Another section of the statute declares that the comptroller’s deed shall vest in the grantee an absolute estate in fee simple. (1 R. S. p. 411, § 80.) But this section applies only to cases in which that officer has power to sell. (18 John. 442.) To give him that, power the land must have been assessed in due form by the town assessors ; taxed by the county supervisors; and the certified transcript of the assessment must have been transmitted by the county treasurer to the comptroller, with the collector’s affidavit that the tax is unpaid, and the tax must have remained unpaid for two years from the first of May following the year when the assessment was made, and be unpaid at the time of the sale. (1 R. S. 391, §§ 11, 12, 13; id. p. 395, §33; p. 399, § 10; p. 402, 3, § 26 ; p. 407, § 52, and 18 John. 442.) It is unnecessary here to determine whether the comptroller’s deed is prima facie-evidence of these facts, on which his powrei to sell depends; because if it be so, and be therefore evidence of the assessment, it proves that the lands were described in the assessment as they are described in the deed; and this case turns on the sufficiency of that description. An accurate designation or description of the land assessed, is essential to the va!idity„of the assessment. The assessment of non-resident lands is made with the ultimate view of collecting the tax by advertisement and sale of the land, if it should not be voluntarily paid. The comptroller’s sale is a rigorous proceeding. It divests the owner of his title" without his consent, and often for a very trivial consideration; and the legislature has heretofore shown a cautious solicitude that it should not be done without his knowledge. The comptroller is required to advertise the lands in various modes more than six months before the sale. (1 R. S. 407, §§ 53, 54, 60, 61.) Still further to guard the interests of the landowner, the law gives him two years’ time after the sale, during which he may redeem by paying the tax and interest thereon. The comptroller is required to advertise the lands again for redemption six months before the expiration of the time, by distributing notices specifying every parcel of land unredeemed, and by publication in the newspapers of each county. (1 R. S. 411, §§ 76, 77, 78.) The assessment must therefore contain a true designation or description of the land to be sold, for two reasons : first, in order that the purchaser at the sale may be able to find and locate the land after his purchase; and secondly, in order that the owner may know that his land is advertised for sale or redemption, and be able to save it by paying the tax. The description of the lands in the advertisements of sale and of redemption are taken from the entries in the comptroller’s books ; and the entries in his books are transcribed from the assessments returned to his office by the county treasurers. If the land be misdescribed in the assessment it will of course be misdescribed m the comptroller’s books, and in the notices of sale and of redemption. Mistake or falsity of description in the assessment runs through the whole proceeding. An assessment of non-resident land is fatally defective and void, if it contain such a falsity in the designation or description of the parcel assessed, as might probably mislead the owner and prevent him from ascertaining by the notices that his land was to be sold or redeemed. Such a mistake or falsity defeats" one of the obvious and just purposes of the statute—that of giving to the owner an opportunity of preventing the sale by paying the tax. In the assessment of the lands in question there was a fatal falsity in describing the parcel of land to be taxed. It was described as lying in the village of Lodi, when, in fact, it lay elsewhere. It was situate in a tract known as the village of Syracuse and not in Lodi, which was known as a different place although both were in the same town. The lands to be sold for taxes are necessarily entered and arranged in the comptroller’s books, and in the advertisements of sale and redemption, according to their respective localities, under the heads of counties, towns, villages,-or tracts having known names. The falsity in the description of the land in question would obviously, and of course, cause it to be entered in the comptroller’s books, out of its proper place. Instead of being placed under the appropriate head of Syracuse village, it would be arranged under the head of the village of Lodi, because it was falsely described as situate there. The same error would, from the same cause, occur in the notices of sale and redemption. A landowner exercising ordinary diligence in searching the volume of advertisements to ascertain whether his lands are to be sold for taxes or are to be redeemed after sale, looks under the appropriate head, that is to say, under the name of the tract or place whese his lands lie, and not elsewhere. He might, therefore, be misled and deceived by such a mistake as was made in this case; because for land lying in the village of Syracuse he would look under that head and not under the head of Lodi village. If instead of looking at the advertisements, the owner in the present case had addressed a note to the comptroller’s office enquiring whether block No. 29, in the village of Syracuse was returned for unpaid taxes and liable to be sold, he would undoubtedly have received an answer in the negative, because the lot in question would not be found returned and entered in its proper place. It is plain that the misdescription would probably mislead; and it is therefore fatal to the validity of the assessment and consequently to the validity of the sale and conveyance by the comptroller. It is not material to decide in this case whether the transcripts from the comptroller’s books were properly admitted in evidence. The deed describes the land as situate in the village of Lodi, and the presumption independent of that evidence is that it was so described not only in the assessment but on the comptroller’s books. The case of Dike v. Lewis, (4. Denio, 237; 2 Barb. S. C. Rep. 344,)was not so strong a case against the validity of the comptroller’s sale as the present. In that case the tract in which the lot was situate was correctly designated, and the boundaries of the lot were accurately given; but there was a mistake in the number. It was called 228, when in fact it was 227. The supreme court held the comptroller’s sale to be invalid on the ground that the mistake in the number of the lot in the assessment might have misled the owner. The decision rests on a sound principle. In a deed between individuals, a part of the description of the premises conveyed may be rejected on account of its falsity, if after its rejection there is enough left to show clearly what the owner intended to convey. In this case, if the owner cf the land had executed the deed, giving the boundaries correctly, the title might have passed, although the land was falsely described as to the village in which it lay. It would then present the question what the owner intended to convey. There is no such question here. The owner conveys nothing, and does not intend to convey anything. If the officers who undertake to convey for him, intend to convey lands lying in one place, by a deed describing them as lying in a different place, they intend to do what the statute, under which they profess to act, does not permit. A judicial decision which should sanction a title like the present, would open a door to innumerable frauds. The judgment of the supreme court must be affirmed. Judgment affirmed. Dike v. Lewis is reported in Denio after the first trial, and in Barhour aftei the second trial In Sharp v. Speir, 4 Hill 76, 86, Bronson, J., observed: “ Every statute authority, in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. This is a mere naked power in the corporation, and its due execution is not to be made out by intendment: it must be proved. It is not a case for presuming that public officers have done their duty, but what they have in fact done, must be shown. The recitals in the conveyance are not evidence against the owners of the property, but the fact recited must be established by proof aliunde. As the statute has not made the conveyance primé facie evidence of the regularity of the proceedings, the fact that .they were regular must be proved, and the onus rests on the purchaser. He must show, step by step, that everything has been done which the statute makes essential to the due execution of the power. It matters not, that it may be difficult for the purchaser to comply with such a rule. It is his business to collect and preserve all the facts and muniments upon which the validity of his title depends. (Rex v. Croke, Cowp. 26 ; Williams v. Peyton, 4 Wheat. 77 ; Rochendorf v. Taylor, 4 Peters 369 ; Jackson v. Shepherd, 7 Cow. 68 ; Atkins v. Kinnan, 20 Wend. 241 ; Thatcher v. Powell, 6 Wheat. 119 ; Jackson v. Esty, 7 Wend. 148 ; The People v. The Mayor, &c., of New York, 2 Hill 9 ; Matter of Mount Morris Square, Id. 14.) These cases and those to which they refer will be sufficient to justify all that has been said concerning the necessary requisites for making out a title in the defendant.” See also, Kennedy v. Newman, 1 Sandf. 187.