Mabie v. Fuller

• Decision Date: 06 January 1931
• Citation: 255 N.Y. 194,174 N.E. 450
• Parties: MABIE et al. v. FULLER.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 194

174 N.E. 450

MABIE et al.

v.FULLER.

Court of Appeals of New York.

Jan. 6, 1931.

Action by Flora B. Mabie, original plaintiff, Edgar Bull Mabie and others, substituted plaintiffs, against William W. Fuller, tried on stipulation of the parties before the court without a jury. From a judgment of the Appellate Division, Third Department (229 App. Div. 7, 240 N. Y. S. 452), reyersing a judgment of the Trial Term (132 Misc. Rep. 632, 230 N. Y. S. 448) for defendant, and directing a judgment for the plaintiff, defendant appeals.

Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

Oliver D. Burden and Herman V. S. Groesbeck, both of Syracuse, for appellant.

Donald M. Mawhinney, of Syracuse, for respondents.

HUBBS, J.

This is an action in ejectment brought by the record owner of a life estate in a farm to regain possession thereof. The answer alleges that the defendant is the owner thereof and entitled to possession by virtue of a tax deed.

The taxes on the farm for the year 1922 were regularly assessed. They were not paid, and were so returned to the county treasurer in April, 1923. On October 17, 1923, the county treasurer duly sold the farm for the unpaid taxes, and on October 24, 1924, delivered a deed thereof to the defendant, who recorded it in May, 1925, without recording therewith proof of the service of a notice to redeem, as required by section 134 of the Tax Law (Laws of 1909, c. 62; Consol. Laws, c. 60). During all of the time in question the farm was occupied by tenants of the appellant and in possession of an ‘occupant’ within the meaning of said section 134.

The position of the plaintiff-respondent is that the defendant-appellant did not acquire a valid title to the premises by virtue of the tax sale and the deed executed and delivered by the county treasurer because he failed to serve upon the occupant a notice to redeem, as required by said section 134. The appellant insists that his title has become absolute, within the meaning of section 137 of the Tax Law, without serving upon the occupant a notice to redeem, as more than three years had expired after the last day of the tax sale before the trial of the action, and the respondent had failed to pay the taxes and expenses and redeem the premises from the tax sale.

The question for determination is whether the title of a purchaser of premises at a tax sale, who has failed to serve a notice to redeem upon the occupant, becomes absolute upon the expiration of three years ‘after the last day of the sale’ (Tax Law, § 127), so that the record owner is barred from recovering possession of the premises so sold.

The proceedings for the assessment and collection of the tax and for advertisement and sale of the premises were conducted substantially in accordance with the provisions of the Tax Law. All proceedings up to and including the delivery of the tax deed to the appellant were valid. The delivery to and possession of the deed by the appellant did not, however, make his title absolute and conclusive. The owner still had a right to redeem the premises by paying the taxes, with certain penalties and expenses added, as provided in sections 127, 134, and 137 of the Tax Law, and the appellant, the grantee named in the deed, had a right to limit the time within which the owner could redeem by serving a notice to redeem upon the occupant as provided in section 134.

The right of a purchaser of land at a tax sale to acquire a valid title thereto is a statutory right, in derogation of the common law. The proceeding deprives the record owner of his title, and vests it in another, and the statute must be substantially complied with in order to constitute a valid transfer of title. Clason v. Baldwin, 152 N. Y. 204, 46 N. E. 322. The owner's right to redeem also depends upon the statute, and, if he seeks to redeem, he must proceed in accordance with the provisions of the statute giving him the right. People ex rel. Quaranto v. Moynahan, 148 App. Div. 744, 133 N. Y. S. 361, affirmed 205 N. Y. 590, 98 N. E. 1113.

Prior to the enactment of chapter 711, § 17, of the Laws of 1893, it was clearly settled under the statutes in force that the right of an owner or occupant of land which was occupied at the expiration of two years after the last day of the tax sale to redeem the land from a tax sale could not be cut off, unless a notice to redeem was served upon the occupant as required by statute. Laws of 1855, c. 427, §§ 50 and 68; Ostrander v. Reis, 206 N. Y. 448, 100 N. E. 37;People v. Ladew, 189 N. Y. 355, 82 N. E. 431; Id., 190 N. Y. 543, 82 N. E. 1092.

The statute under which those cases were decided (Laws of 1855, c. 427), which was a codification of the tax laws of the state, provided, by section 50 thereof, that the owner or occupant of lands sold for taxes might redeem at any time within two years from the last day of the sale. Section 68 provided that, where the land sold for taxes was in the actual occupation of any person at the expiration of the two years given for redemption, the grantee in a tax deed or the person claiming under him should serve a written notice on the person so occupying the land to the effect that the tax deed would become absolute, unless the occupant or owner should redeem the said land within six months after the filing in the office of the comptroller evidence of the serving of such notice. Under the statute, the owner or occupant could redeem at any time within two years without the service of a notice to redeem from the grantee named in the tax deed. If, at the expiration of two years from the last day of the sale, the land was occupied, the grantee was required within two years from that time (the expiration of two years from the last day of the sale) to serve a written notice on the occupant to redeem. The occupant had six months ‘after the time of filing in the Comptroller's office of the evidence of the service of the said notice’ within which to redeem. If he did not redeem within that time, the grantee's title became absolute. If the land was so occupied at the expiration of two years from the last day of the sale, and the grantee failed to serve a notice to redeem, his title did not become absolute, and the owner of the premises could establish his title and right to possession in an appropriate action. If at the expiration of two years from the last day of the sale the land was not occupied, the title of the grantee in the tax deed became absolute without the service by the grantee of any notice to redeem.

The state of the law as expressed in the statute and construed in judicial opinions resulted in chaotic conditions in relation to tax titles. The grantee in every tax deed was obliged to determine for himself whether the land described in his deed was occupied within the meaning of the statutory definition. The question often presented intricate and difficult questions, the solution of which depended upon the situation of the premises and the facts and circumstances surrounding each case. If the grantee failed to serve a notice to redeem, and the courts later decided that the premises were occupied at the time the notice should have been served, his tax deed became worthless. If he served upon the wrong person, or failed to serve a legal notice, the same effect followed. Often the owner would not assert his right to the premises for years after the tax deed was delivered. The effect was to cast suspicion on all tax titles and lead to protracted litigation. The case of People v. Ladew, which was three times before this court (189 N. Y. 355, 82 N. E. 431; 190 N. Y. 543, 82 N. E. 1092; 237 N. Y. 413, 143 N. E. 238), forcibly illustrates the conditions then existing.

Prior to the year 1893, in all cases where the land was occupied at the expiration of the occupant's or owner's time to redeem without notice, it was necessary for the grantee in a tax deed to serve a notice to redeem before his title became absolute. Where the land was so occupied, the statute provided only that one method under which the grantee's tax deed could become absolute.

Various statutes were enacted by the Legislature for the purpose of perfecting titles in cases where the grantees in tax deeds had failed to serve a...