Joslyn v. Rockwell

• Decision Date: 06 October 1891
• Citation: 28 N.E. 604,128 N.Y. 334
• Parties: JOSLYN v. ROCKWELL et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 334

28 N.E. 604

JOSLYN

v.ROCKWELL et al.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, third department.

Action of trespass by Harriet E. Joslyn, as administratrix of Al Joslyn, deceased, against George H. Rockwell and others. From a judgment entered upon a verdict for defendants, plaintiff appealed to the general term, where the same was affirmed. Plaintiff appeals. Affirmed.

Plaintiff claimed title through deeds from the comptroller for sales of the land for taxes assessed against them as non-resident lands, which lands defendants claimed, and gave evidence tending to show, were occupied under the owner at the time of the assessment. Defendants also gave evidence tending to show that the taxes in question were paid before the return for non-payment was made to the comptroller. 2 Rev. St. N. Y. p. 1094, § 2, is as follows: ‘Lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or, if the owner resides in the county in which lands are located, to such owner.’ Section 3 is as follows: ‘Unoccupied lands, not owned by a person residing in the ward or town where the same are situated, shall be denominated ‘lands of non-residents,’ and shall be assessed as hereinafter provided.'

James C. Rogers, for appellant.

J. S. L'Amoreaux, for respondents.

PECKHAM, J.

In Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15 N. E. Rep. 401, the statute provided that, under certain circumstances named in the act, the comptroller's deed 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.’ The plaintiff here claims title under two deeds from the comptroller to Gerrit Smith, executed by reason of sales of the land for non-payment of taxes. In 1885, long subsequent to such sales and conveyances by the comptroller, the legislature passed the act known as chapter 448 of the Laws of that year; and it was provided therein that, after certain times therein stated, the deeds of the comptroller, executed upon sales for the non-payment of taxes, should be ‘conclusive evidence’ that ‘the sale of said lands, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of two years allowed by law to redeem, were regular, and were regularly given, published, and served according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto.’ The comptroller's deeds under which the plaintiff claims were executed and recorded in due time so as to come within the purview of this act. It is evident that, upon the subject of the conclusive character of the comptroller's deed, the act of 1885 does not differ in any material respect from the act already quoted, and which was under discussion in the case of Ensign v. Barse, supra. It must therefore receive the same construction which was given the act in that case. It was there said that the act did not on its face purport to cure jurisdictional defects. Judge FINCH, in the course of his opinion, declared that the act ‘raises a conclusive presumption of regularity, but leaves the question of the assessor's 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 defect.’ This construction was concurred in by the whole court. Nothing in the cases of People v. Turner, 117 N. Y. 227, 22 N. E. Rep. 1022, and Ostrander v. Darling, 27 N. E. Rep. 353, (in the second division of this court, and not yet officially reported,) enlarges the construction to be given the act of 1885.

It has not been held in any...