Lockwood v. Gehlert

• Decision Date: 02 June 1891
• Parties: LOCKWOOD v. GEHLERT.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 241

27 N.E. 812

LOCKWOOD

v.GEHLERT.

Court of Appeals of New York,

Second Division.

June 2, 1891.

Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon the decision of the court at special term. Action of ejectment to recover possession of a parcel of land situate near the corner of Fourth avenue and 126th street, in the city of New York. The defendant, by his original answer, simply denied the title of the plaintiff, and by a supplemental answer he alleged title in himself under a tax-lease for the term of 1,000 years. Upon the trial, however, his counsel announced that he made no question as to the plaintiff's chain of title, and the only issue tried was as to the defendant's title under his lease. The trial court found, upon the request of the defendant, that the tax-sale pursuant to which said lease was given, ‘and all proceedings prior thereto, from and including the assessments on said premises for taxes and Croton water rents, and all notices required by law to be given previous to the expiration of the two years allowed to redeem, were regular, and according to the provisions of the statute in such cases made and provided.’ Further facts appear in the opinion.

David Gerber, for appellant.

John Townshend, for respondent.

VANN, J., ( after stating the facts as above.)

It is conceded that the plaintiff was entitled to recover possession of the premises in question, unless his title thereto was divested and transferred to the defendant, for the period of the lease, by virtue of proceedings taken to enforce collection of the tax. As the regularity of procedure, up to and including the sale, is not questioned, it will be necessary to examine only those sections of the statute that govern the subsequent proceedings. After the delivery to the purchaser of a certificate of sale, as required by section 926 of the consolidation act, (Laws 1882, c. 410,) the next step is the publication of a notice that, ‘unless the lands and tenements sold be redeemed by a certain day, they will be conveyed to the purchaser.’ If the premises are not redeemed within two years from the date of the certificate, the comptroller is required to execute to the purchaser a lease thereof, ‘for such term of years as the same shall have been sold, * * * and such purchaser * * * shall in virtue thereof, and of this title, lawfully hold and enjoy the said lands and tenements in said lease mentioned, for his * * * own proper use, against the owner or owners thereof, and all claiming under him, until such purchaser's term therein shall be fully complete and ended: * * * provided that such lease shall not be executed and delivered until the expiration of six months after the publication of’ said notice to redeem. Id. § 941. The title referred to includes all of the sections of the act relating to ‘sales of land for taxes, assessments, and water-rates.’ The grantee is required to serve upon the occupant, if there is one, and in all cases upon the owner of the property so conveyed, a written notice stating certain facts, and that unless the sum paid upon the sale, and 42 per centum additional, together with the expenses, shall be paid to the clerk of arrears for the benefit of the grantee, within six months after the service of such notice, ‘the said conveyance will become absolute, and the owner, occupant, and all others interested in the lands and tenements be barred from all right and title thereto during the term of years for which such lands or tenements shall have been conveyed.’ No conveyance so made, as aforesaid, ‘shall be recorded,’ as the statute further provides, ‘until the expiration of such notice, and the evidence of the service of such notice shall be recorded with such conveyance.’ Id. § 943. After prescribing how the notice shall be served, it is next provided that ‘the grantee, or the person claiming under him, in order to complete his title to the land conveyed, shall file with the said clerk of arrears an affidavit * * * that such notice was duly served, specifying the time of service, the mode and manner of service, and a copy of such notice shall be attached thereto.’ Id. § 945. The remaining provisions, directly applicable to the case in hand, are as follows, viz.: ‘Sec. 946. If the said comptroller shall be satisfied by such affidavit that the notice has been duly served, and if the moneys required to be paid for the redemption of such lands or tenements shall not have been paid as hereinbefore provided, he shall, under his hand and seal, certify to the fact, and the conveyance shall thereupon become absolute, and the owner and all others interested in the lands or tenements shall be barred of all right thereto during the term of years for which the same shall have been conveyed. Sec. 947. The owner, occupant, or any other person may, at any time within the six months named in such notice, redeem the lands and tenements by paying such purchase money, with the addition of forty-two per cent. thereon, and the amount that shall have been paid for the lease; and every such redemption shall be as effectual as if made before the conveyance of the lands or tenemts sold.’ All of the proceedings required by these provisions of the statute were duly taken by or in behalf of the defendant, except that the certificate of the comptroller, required by section 946, had no seal. A certificate was given March 24, 1885, by Mr. Loew, the comptroller then in office, proper in form, and duly signed, but not sealed. After Mr. Loew's term of office had expired, but before any attempt at redemption, Mr. Myers, the succeeding comptroller, caused a seal to be affixed to the certificate made by his predecessor, and at the same time application was made to him in behalf of the defendant for a new certificate, which does not appear to have been made. Mr. Loew testified that he was ‘satisfied’ as to the facts stated in the certificate when he made it, but there is no evidence that Mr. Myers was thus ‘satisfied,’ or that he examined the affidavit before the seal was affixed. Shortly after wards the plaintiff, claiming that he had a right to redeem until a proper certificate was made, tendered the amount required for that purpose, and the clerk of arrears receipted for the same under the compulsion of a judgment recovered against him by this plaintiff in an action brought to compel redemption, but to which this defendant, although notified of the pendency thereof, was not a party. The question presented for decision is not whether the defendant is entitled to have his lease made absolute, but whether it was already absolute at the time of the trial, so that the plaintiff was then barred of all right to the premises during the term of the lease. If all of the provisions of the statute were fully complied with except the final act, and that was necessary to complete the defendant's title, it is clear that, until that act has been performed, he is not entitled to possession as against the plaintiff. When, therefore, does the title to lands sold under the consolidation act for non-payment of taxes pass from the owner to the purchaser?

The defendant claims that it passes upon the expiration of the period specified in the six-months notice to redeem, provided due proof of the service thereof has been filed, and that ‘the object of the comptroller's...