Ostrander v. Darling

• Decision Date: 01 May 1891
• Citation: 27 N.E. 353,127 N.Y. 70
• Parties: OSTRANDER et al. v. DARLING.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 70

27 N.E. 353

OSTRANDER et al.

v.DARLING.

Court of Appeals of New York,

Second Division.

May 1, 1891.

Appeal from supreme court, general term, third department.

Arthur L. Andrews, for appellants.

John M. Carroll, for respondent.

HAIGHT, J.

This action was brought to recover for timber and bark cut and carried away from lot No. 20, Ox Bow tract, Hamilton county. Both parties claimed title to the land by patent from the state of New York. It appears that in the year 1842 the land commissioners of the state made a contract of sale to one Andrew K. Morehouse of the land in question; that Morehouse at the time paid thereon one-quarter of the purchase money, and gave his bond for the payment of the balance in six equal annual installments thereafter, and received a certificate from the surveyor general of the state. On the 22d of January, 1884, Morehouse died, having never made a claim or demand for the patent of the lot, or taken any steps to procure the same. On the 7th of July, 1884, the plaintiff George W. Ostrander, and Josephine B. Winchell, who was one of the heirs at law of Morehouse, made application for a patent under and by virtue of the contract of sale with Morehouse, and in pursuance of such application the people of the state issued to Josephine B. Winchell their patent, executed by the governor, on the 5th day of August, 1884, in which they granted and quitclaimed to her all the right, title, and interest which the people then had to the lot in question, excepting and reserving all gold and silver mines. Such patent was issued pursuant to a resolution of the commissioners of the land-office passed August 5, 1884. The plaintiffs, as grantees of Josephine B. Winchell, now have whatever title she obtained by virtue of such patent. In the month of November, 1859, the land in question was sold by the comptroller of the state on account of unpaid taxes which had accured against the land prior to that year, and at such sale the lot in question was bid in and purchased by the comptroller for the people of the state, and by him conveyed to the people by deed bearing date the 11th day of March, 1862, which deed was recorded in the office of the comptroller in Book 5, on page 147, on March 11, 1862, and in the office of the clerk of Hamilton county in Book 12, page 400, May 30, 1877. On the 4th day of August, 1870, and while such deed was in force and valid, the people of the state issued to Patrick N. Crowe their patent, executed by the governor under his hand and the seal of the state, in which they duly granted and quitclaimed to him the lot in question, together with all the rights, hereditaments, and appurtenances to the same belonging or appertaining, excepting and reserving only all gold and silver mines, which patent was countersigned by the secretary of state, and recorded in his office in Liber 40 of Patents, at page 182, and on the 30th day of August, 1883, was recorded in the clerk's office of Hamilton county in Book of Deeds No. 17, at page 481. The defendant, as the grantee of Crowe, is the owner of all the right, title, and interest acquired by him under such patent. Morehouse, under his contract of purchase, had the right of possession, and under the statutes to the state the land so purchased by him became subject to taxation and to a resale, in case of default in payment of the taxes assessed thereon. As we have seen, such a sale took place in 1859, resulting in a deed to the state in 1862, thus reinvesting the state with the title to the land, and thereafter, and in the year 1870, the state reconveyed to Crowe. The patent issued to Crowe antedates that issued to Winchell by 14 years, and consequently furnishes a superior title, unless it is void for the reason that the notice of redemption did not conform to the statute in stating that, unless such lands are redeemed by the day named, they will be conveyed to the purchaser. It appears that in August, 1884, Ostrander applied to the comptroller to have the sale of 1859 canceled, for the reason of this defect in the notice of redemption; and thereupon a clerk, on direction of the comptroller, entered upon the book of tax-sales of the lands of non-residents, in the column under the heading of ‘Names of Person Redeeming,’ the words ‘Canceled; not properly and advertised for redemption.’ If this action on the part of the comptroller effects the cancellation of the sale, it operates to divest the defendant of title to the premises in question. We shall therefore first consider this question.

It appears that neither Crowe nor the defendant had any knowledge of the application of Ostrander to the comptroller for a cancellation of the sale, or of the application for the patent that was issued to Winchell. It is not pretended that any notice was in any manner given of such applications. The statute provides that ‘whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever invalid or ineffectual to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the comptroller shall cancel the sale, and forthewith cause the purchase money and interest thereon to be refunded out of the state treasury to the purchaser, his representatives or assigns.’ And again: ‘If the discovery that the sale was invalid shall not be made until after the conveyance shall have been executed for the lands sold, it shall be the duty of the comptroller, on receiving evidence thereof, to cancel the sale, to refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money, and interest thereon,’ etc. Laws...