Ensign v. Barse

• Decision Date: 29 November 1887
• Citation: 14 N.E. 400,107 N.Y. 329
• Parties: ENSIGN et al. v. BARSE et al.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 329

14 N.E. 400

ENSIGN et al.

v.BARSE et al.

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, Fifth department.

Action in ejectment, brought by William H. Ensign et al. against Mills W. Barse et al. There was judgment for defendant, and plaintiff appealed.

E. D. Northrup and William F. Cogswell, for appellants.

Bolles, Waring & Bolles and Carey & Jewell, for respondents.

FINCH, J.

If the tax title of the defendant is good, any discussion of the plaintiff's title, and the alleged defect breaking its chain, will prove to be needless; and it is best, therefore, to inquire whether, conceding the sufficiency of the plaintiff's title taken by itself, it has been destroyed and rendered unavailing by the paramount title of the defendant, derived through a sale of the land for taxes. Two such sales occurred; one by the comptroller in 1843, and one by the treasurer of Cattaraugus county in 1852. Various in the proceedings are disclosed, which the appellant claims invalidated the resulting conveyances, and to the effect of which a large portion of the argument was directed. So far as these defects were not jurisdictional, and amounted only to irregularities, they were cured by the act of 1882, (chapter 287,) which provided that where 15 years had elapsed after a conveyance by the comptroller or county treasurer of lands in Chautauqua or Cattaraugus county belonging to non-resident owners, and such owners had not entered into actual possession of the same, and made permanent improvements thereon, the deed or conveyance should be ‘conclusive’ evidence that ‘the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices heretofore or hereafter required by law to be given previous to the expiration of the time allowed by law to redeem, were regular, and were regularly given, published, and served, according to the provisions of all laws requiring and directing the same, or in any manner relating thereto.’

Before considering the scope and range of this enactment relatively to the defects in the tax sales, it is necessary to dispose of an attack upon the statute itself as being in conflict with the constitution. Its title is, ‘An act to amend chapter 229 of the Laws of 1879, entitled ‘An act in reference to the collection of taxes in the counties of Chautauqua and Cattaraugus, and the acts amendatory thereof and supplementary thereto.’' It amends section 32 of the act of 1879. It makes the deeds of the comptroller and county judge and treasurer presumptive evidence of regularity in all cases, and conclusive evidence of regularity in some. The criticism suggested is that more than one subject is embraced in the bill, and so it violates section 16, art. 3, Const. We are not of that opinion. The one subject of the bill is the collection of taxes in the two counties named. That fairly covers the entire system of collection. The sale of the lands enforces the collection; the deeds give effect and vitality to the sale; and their force as evidence and as muniments of title is a natural and essential element of the system. In Supervisors v. Allen, 99 N. Y. 538, 2 N. E. Rep. 459, a similar objection was considered. The title was in the form of that under discussion, and it was claimed that provisions authorizing the supervisors to designate the banks in which the treasurers should deposit the state moneys, and directing such banks to pay interest and give bonds, introduced a new subject, and one not covered by the title. We held the contrary, deciding that the provisions were connected with the subject designated in the title. That adopted in the statute before us is not deceptive or misleading. The enactment contains nothing which one reading the title might not reasonably and naturally expect to find in the statute as within its scope. That title gave notice that an amendment of the laws in force in the two counties for the collection of taxes was proposed, and no reader of or listener to that title could fairly complain of deception at whatever point of the general system or its details an amendment was introduced bearing upon the manner of efficacy of the system of tax collection. In re Paul, 94 N. Y. 505. The act did not violate the fundamental law in the respect under consideration.

But it is further assialed as retrospective in its operation, and in violation of section 6, art. 1, Const., which provides that no person shall be deprived of life, liberty, or property without due process of law. The counsel on both sides agree as to the legitimate range of a curative statute. They agree that a retrospective statute curing defects in a legal proceeding where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds; that if the thing wanting or omitted which constitutes the defect is something the necessity for which the legislature might have dispensed with by prior statutes, or if something has been done in a particular way which the legislature might have made immaterial, the omission or irregular act may be cured by a subsequent statute. We see no reason to disagree with the counsel in this general statement of the law, at least for present purposes, though it may not be above criticism or beyond exception. The act of 1882 does not on its face purport to cure jurisdictional defects. It raises a conclusive presumption of regularity, but leaves the question of the assessors' jurisdiction and authority unaffected. Thus understood, it comes within the rule which counsel concede to be correct. It does not make the tax deed conclusive evidence of a complete title, but leaves open to the owner full right to assail the proceedings in any jurisdictional respect. We should therefore disregard such defects in the proceedings as are not jurisdictional, but founded upon acts or omissions wholly within the power of the legislature to have dispensed with or treated as immaterial, and in so doing it will be found, I think, that only the two defects pointed out and relied upon by the senior counsel of the appellant are open to discussion.

Confining our attention to the tax title of 1852, we are required to consider the following alleged defects: That sale was made for the county and highway tax of 1849, and it is objected that the amount of the tax is not expressed in dollars and cents. This objection is founded upon the absence of the dollar-mark. American Tool Co. v. Smith, 14 Abb. N.C. 378, the same difficulty appeared on the face of the assessment roll, and was held not to invalidate the assessment. That case was affirmed in this court. 96 N. Y. 670.

The second objection made is that the assessors did not sign the roll. The statute required that the assessors should sign the assessment roll, and attach a specified certificate, which should also be signed by them. 1 Rev. St. pt. 1, c. 13, tit. 2, art. 2, § 26. In the present case, the certificate was signed, but the roll not. That certificate referred to and identified the roll to which it was attached. It spoke of it as the ‘above assessment roll,’ and as having been the work of the assessors. Passing by all consideration of what might have been the consequence of this omission if no healing act had been passed, it is quite evident that the legislature might have dispensed with the signatures of the assessors to the roll as such, and been content with their signature to the certificate appended as a sufficient identification of the official act. In the present case, the certificate was written upon the roll itself, and not merely annexed to it, and it would have been entirely within the legislative power to have made the one signature to the certificate alone necessary. The defect, therefore, was not jurisdictional, or beyond the reach of the act of 1882.

We take the same view of the third defect enumerated. The form of the certificate is prescribed, and in that part of it which relates to the mode of valuation the words ‘solvent creditor’ appear, instead of ‘solvent debtor.’ The question is not as to the effect of this error upon the tax while standing unexcused, but of the power of the legislature, by a subsequent and healing statute, to make it immaterial and leave it harmless. The provision is important and useful, but the legislature might have dispensed with it entirely, without affecting the validity of the tax, or required it to follow the very phraseology here adopted.

The same answer awaits the fourth objection, which is founded upon the date of the assessor's certificate indicating that it was made August 4, 1849. We are not quite sure that we understand correctly the appellant's brief upon this point. He seems to concede that, as the law then stood, though it is different now, the roll could legally have been verified as early as the first day of August, and should have been verified ‘forthwith.’ That assumes that the verification was too late. But he also cites authority to show that it was too soon. This defect, if it was one, was also in the nature of an irregularity, which we need not consider further.

The...