Meigs v. Roberts

• Decision Date: 27 March 1900
• Citation: 56 N.E. 838,162 N.Y. 371
• Parties: MEIGS v. ROBERTS, Comptroller.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 371

56 N.E. 838

MEIGS

v.ROBERTS, Comptroller.

Court of Appeals of New York.

March 27, 1900.

Appeal from supreme court, appellate division, Third department.

Action by Ferris J. Meigs against James A. Roberts, comptroller. From a judgment of the appellate division (59 N. Y. Supp. 215), reversing a judgment in favor of defendant, defendant appeals. Reversed.

Theodore E. Hancock and J. C. Davies, Atty. Gen., for appellant.

John P. Badger, for respondent.

CULLEN, J.

This action is in ejectment for a tract of wild land in Franklin county, containing 585 3/8, acres, and was commenced on April 28 1897. The complaint alleged that the plaintiff was the owner in fee, and entitled to the immediate possession, of the lands; that since the 1st of January 1895, the defendant had been, and then was, comptroller of the state of New York; and that as such comptroller he was, and had been for two years, in possession of the said lands. The defendant answered, admitting that he was comptroller of the state during the period stated, and put in issue every other allegation of the complaint. The answer then set up that the people of the state were, and for more than ten years past had been, in the actual possession of the premises, under a certificate of sale made by the comptroller to the people of the state of New York on the 23d day of November, 1881, in pursuance of a sale held for nonpayment of taxes, and a conveyance made on the 31st day of October, 1884, under such tax sale after the expiration of the two years allowed by law for redemption, which conveyance was recorded in the office of the clerk of the county of Franklin on April 6, 1887. The answer further set forth as a separate defense a similar certificate,executed on the 29th day of November, 1885, on a sale for unpaid taxes, a conveyance thereunder dated on the 15th day of February, 1890, and the record of the conveyance in the clerk's office of Franklin county on the 3d day of March, 1891. The defendant further pleaded that under the provisions of chapter 448 of the Laws of 1885, chapter 217 of the Laws of 1891, and chapter 711 of the Laws of 1893, the action was not brought within the time prescribed by law, and was barred by the statute of limitations. On the trial the plaintiff traced his title by a chain of conveyances from an original grant by the state in 1798. The evidence shows that beginning December 22, 1894, the defendant published for three weeks a notice stating that the premises in controversy, with others, were wild, vacant, and forest lands, located in Franklin county, to which the state held title, and that from and after the expiration of the publication possession thereof would be deemed to be in the control of the state, under the provisions of section 13, c. 711, of the Laws of 1893. The tax certificates and conveyances were put in evidence. The only attack on the conveyance of 1884 made in pursuance of the tax sale held in 1881 related to the notice of redemption published by the comptroller. It appears that on the sale one Josiah Talmage purchased 100 acres of the tract for the full amount of the unpaid taxes, and that a certificate of sale was issued to him. Talmage never paid the purchase money or completed his purchase. While Talmage was thus in default the comptroller published a notice of unredeemed lands, in which it was stated, as to these premises, that 100 acres were unredeemed. After the publication of the notice to redeem, the comptroller, on account of Talmage's failure to pay the purchase price, conveyed the whole tract of 585 3/8 acres to the state, as required by chapter 402 of the Laws of 1881. It is unnecessary to refer to the grounds on which the conveyance of 1890 was assailed. No proof was given of any possession of occupation of the premises by the plaintiff or his predecessors in title. The trial court dismissed the complaint, substantially, on the ground that the premises were part of the forest preserve,and in the occupation of the state; that an action against the state to test its title could not be maintained. except by consent of the state; and that the statute of 1893 (chapter 711, § 13) was not sufficient to authorize the maintenance of such an action. The learned appellate division, by a divided court, reversed the judgment and granted a new trial; holding that the act of 1893 authorized the plaintiff to sue the state, and oust it from possession, by an action against the comptroller. It further held that the notice of redemption on the tax sale of 1881 was fatally defective, in that it stated that 100 acres only of the premises in suit were unredeemed, while the conveyance was of the whole tract; that for this defect the conveyance made in pursuance of the sale in 1884 did not pass title; and that its invalidity was not cured by the provisions of chapter 448, Laws 1885, subsequently re-enacted in part (chapter 217, Laws 1891; chapter 711, Laws 1893), which makes a conveyance of the comptroller upon tax sales, after the lapse of two years from its record in the county in which the lands are situated, conclusive evidence of the regularity of the proceedings in which conveyance was made.

We do not find it necessary to pass upon many of the questions which have been elaborately argued before us, or even the one upon which the decision of the trial court proceeded. We are of opinion that the lapse of time between the record of the conveyance of 1884 and the commencement of this action barred the right to the plaintiff to maintain it, even assuming that the other questions in the case should be resolved in his favor. The learned appellate division held that the failure to publish a proper redemption notice was jurisdictional as to the conveyance of 1884, and hence not cured by chapter 448 of the Laws of 1885, and cited Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400,15 N. E. 401, and Joslyn v. Rockwell, 128 N. Y. 334, 28 N. E. 604, as authorities for that proposition. We think the learned court took too narrow a view of the statute of 1885. This statute, though in some aspects a curative law, is primarily and essentially much more. It is a statute of limitation. It was distinctlyheld to be such in two decisions of this court (People v.Turner, 117 N. Y. 227, 22 N. E. 1022;Id., 145 N. Y. 459, 40 N. E. 400), and by the supreme court of the United States (Turner v. New York, 168 U. S. 90, 18 Sup. Ct. 38, 42 L. Ed. 392). A ‘curative act,’ in the ordinary sense of that term, is a retrospective law, acting on past cases and existing rights. The power of the legislature to enact such laws is therefore confined within comparatively narrow limits; and...