Adams v. Bd. of Sup'rs of Monroe Cnty.

• Decision Date: 11 January 1898
• Citation: 154 N.Y. 619,49 N.E. 144
• Parties: ADAMS v. BOARD OF SUP'RS OF MONROE COUNTY.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 619

49 N.E. 144

ADAMS

v.BOARD OF SUP'RS OF MONROE COUNTY.

Court of Appeals of New York.

Jan. 11, 1898.

Appeal from supreme court, appellate division, Fourth department.

Application by Delbert A. Adams, executor, against the board of supervisors of the county of Monroe, for the return of certain taxes paid. From a judgment of the appellate division (46 N. Y. Supp. 48) reversing an order of the county court denying the prayer of petitioners, the supervisors appeal. Affirmed.

John Desmond, for appellants.

Delbert A. Adams, in pro. per.

O'BRIEN, J.

The petitioner in the above proceeding is the executor of the will of Lydia M. Wilcox, who died in the year 1890. A part of the property disposed of by the will consisted of a farm of 131 acres. There was no specific devise of the farm, but the testatrix gave various pecuniary legacies to her children, amounting in the aggregate to about $12,000. She then devised and bequeathed the residue and remainder of her estate, real and personal, to her eight children, by name, to be equally divided between them; but the residuary share of one of them was in trust to the executors until the child arrived at the age of 25 years, and the executors were authorized in the meantime to expend such portion of the share for the support and maintenance of the beneficiary as might be necessary. A general power of sale was given to the executors to sell any or all the real estate at discretion. For five years after the death of the testatrix the farm was assessed by the assessors of the town where it was situated to the ‘estate of Mrs. L. M. Wilcox,’ except that in the year 1892 it was assessed to ‘heirs L. M. Wilcox.’ In the years 1892, 1893, 1894, and 1895, the farm was sold by the county treasurer for nonpayment of general taxes levied by the board of supervisors upon the assessments above described. The land was purchased upon each of these sales by the same persons, and at least two conveyances delivered to the purchasers by the treasurer. In the year 1896 the executor desired to dispose of the farm, and a purchaser was ready to buy it; but, on examination of the abstract of title, he refused to take it unless the taxes were paid and the apparent cloud removed. The executor then, upon notice to the purchaser at the tax sale, applied to the county treasurer, under chapter 107, Laws 1884, § 23, to cancel the sales on the ground that the assessments were void, and the application was refused. In the year 1896 he presented a petition to the board of supervisors of the county, under chapter 686 of the Laws of 1892 (section 16), asking that the taxes and expenses which he was compelled to pay, amounting to $287.07, with interest, be refunded. This application was refused, although it appeared that the petitioner had paid the taxes in order to make sale of the land under the power contained in the will. The executor then brought this proceeding, by petition to the county court, for an order directing the board of supervisors to refund the amount so paid on account of the taxes referred to. The application was denied, apparently upon the ground that the executor was not obliged to pay the taxes, and hence his action in that respect was voluntary, and that in such cases the party making the payment had no right to have the money refunded. The appellate division has reversed the order of the county court, and granted the relief prayed for in the petition.

That the assessments were void, and the tax sales made under their authority a nullity, is not seriously denied by the learned counsel who has argued in support of the appeal. But by chapter 107, § 10, of the Laws of 1884, which is applicable to the county of Monroe, the deed given at the sales is made conclusive evidence of the regularity of the sale, and presumptive evidence of the regularity of the previous...