People v. Ladew

• Decision Date: 19 February 1924
• Citation: 237 N.Y. 413,143 N.E. 238
• Parties: PEOPLE v. LADEW et al.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 413

143 N.E. 238

PEOPLE

v.LADEW et al.

Court of Appeals of New York.

Feb. 19, 1924.

Action by the People of the State of New York against Jennie H. Ladew and another. From a judgment of the Appellate Division (204 App. Div. 903,197 N. Y. Supp. 937) affirming a judgment of the Trial Term, in which jury was waived, in favor of plaintiff, defendant appeals.

Affirmed.

Cardozo, J., dissenting.Appeal from Supreme Court, Appellate Division, Fourth Department.

George A. Larkin, of Olean, for appellants.

Carl Sherman, Atty. Gen. (Irving I. Goldsmith, of Saratoga Springs, of counsel), for the People.

Benjamin McClung, of Albany, and Graham Sumner, of New York City, for interveners.

ANDREWS, J.

[1] This litigation is already venerable. It relates to the title of Big and Little Osprey Islands in Raquette Lake. In October, 1901, an action in ejectment was brought by the people against Ladew to recover possession of the larger island. The plaintiff succeeded at Trial Term and in the Appellate Division. It rested its title on three tax deeds dated respectively in 1875, 1881, and 1884. The defendant proved title to the land as against the original owner by adverse possession. People v. Ladew, 189 N. Y. 355, 358,82 N. E. 431. We held that as the predecessors of Ladew were in occupation of the island when the deeds were given and as no notice to redeem required by statute had been served upon them, the deeds were void, and we granted a new trial. A second action of the same character was begun in 1909 with regard to Little Osprey. With these two actions pending the conservation commission in 1912 authorized the Attorney General to discontinue them. Thereafter he and the defendants' attorney stipulated that an order might be entered discontinuing such actions and for the entry of a judgment in each dismissing the complaints on the merits without costs. Such order was then entered on the application of the Attorney General on condition, however, that it should be effective only when approved by the governor. This approval was had, and then, again on motion of the Attorney General, a judgment was entered dismissing each complaint on the merits, without costs. In July, 1914, the present action was brought involving the title to both islands, the people seeking the same relief as in the two former actions. In it, among other defenses, the defendant pleaded in bar the two judgments to which reference has been made. At the opening of the trial the plaintiff moved in the original actions to strike from the judgments the words ‘on the merits.’ The motion was granted, and the case proceeded to trial.

Clearly the original judgments were unauthorized. The conservation commission had consented merely to a discontinuance of the actions, not to a judgment that would be conclusive. Nor had the court gone further. Laws of 1911, c. 647, § 9. The people were entitled to relief. Whether the order as made would have been modified had an appeal been taken-whether the defendant might not have claimed that the judgments entered on a conditional stipulation should be vacated entirely, leaving the two actions pending when the condition failed-these questions are not before us. The order was made. It was never properly questioned. It was in other actions, not in the present. No appeal from this judgment can bring it up for review. Being then simply judgments for dismissal, these judgments are not a bar to the present action. Code Civ. Proc. § 1209.

On this trial the state relied on two sources of title. In 1786 a patent for these and other lands was given to Robert G. Livingston. Through various mesne conveyancesthe state, by deeds given in 1897, 1899, and 1904, is said to have reacquired record title to them. The defendant asserts, not only that he had then gained title to the islands by adverse possession, but that as he during the years in question had actual adverse occupancy the deeds were void for champerty. The state also claims under a tax sale in 1871 and a deed to it in pursuance of that sale in 1875. It says that under the facts as they now stand there was no one in occupancy of the land in 1873, and therefore the ruling formerly made by us is no longer applicable. It further says that whether the deeds were or were not valid any possible defect was cured by a notice given pursuant to section 13, chapter 711, Laws of 1893.

[2] 1. As to the title of the state under the tax deed. In 1871 a large tract of land, including the islands in question, was sold for unpaid taxes for the years 1861 to 1865. These proceeding were under the authority of chapter 427 of the Laws of 1855 having to do with the lands of nonresidents. The land was bid in by the state. Section 66. Within two years of the sale the owner or occupant might redeem. Section 50. If no redemption is had, the comptroller shall at the end of the period execute a tax deed of the land sold which shall vest in the grantee an absolute estate in fee simple (section 63), and shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given, prior to the expiration of the two years allowed to redeem, were regular. Section 65. However, if at the end of the two years allowed for redemption the land is in the actual occupancy of any one, notice to redeem must be given to such person within the additional term of two years, and no tax deed may be recorded unless such notice is given. Section 68. No title passes if such notice is not given. Section 72; Bush v. Davison, 16 Wend. 550;Ostrander v. Reis, 206 N. Y. 448, 100 N. E. 37. The deed before us was given in 1875 and recorded in 1877.

[3] In the former case of People v. Ladew it was found that one Dunning had actually occupied Osprey Island under a claim of title from 1869 to 1881, and that no notice was ever served upon him. We therefore held that the deed was void. The present record is not the same. It is now found that one Murray first occupied the island in 1868. Upon it he built an inclosed camp where he entertained large numbers of tourists, using it for a part of each summer and fall until 1874. Dunning was Murray's guide. He also occupied the camp parts of each year during Murray's absence. Apparently he remained there winters, making it his chief camp while trapping. He raised vegetables, and there kept his outfit for hunting and trapping, but did not claim to own or have exclusive possession of the islands. Under such findings were Murray or Dunning or both actual occupants of Osprey Island in 1873, two years after the sale?

‘Actual occupancy’ implies more than casual or temporary presence on the land. It need not be such a possession as would constitute adverse possession, but there must be some elements of permanency. In Jackson v. Esty, 7 Wend. 148, Carpenter had actual possession and occupancy, and held such possession and the betterments under a conveyance, although he did not claim title to the land. In Comstock v. Beardsley, 15 Wend. 349, the words, Judge Nelson said, were used in the same sense as the word ‘occupant’ was used in chapter 262 of the Laws of 1823, relating to the assessment of taxes. Under that act clearly neither Dunning nor Murray would have been taxable. In Bush v. Davison (16 Wend. 550) Phillips was in possession of a dwelling house as a tenant at sufferance. In People ex rel. Russell v. Doty, 234 N. Y. 559, 138 N. E. 446, a vacant lot was cultivated each year by a tenant, and such use of the land was open and notorious. More nearly in point is People ex rel. Marsh v. Campbell, 143 N. Y. 335, 38 N. E. 300. There the same Dunning who is involved in this litigation had built a log house on an island in one of the lakes of the Fulton Chain. It was used by him, the evidence shows, in his business as a guide. In it he kept household furniture, boats, and sporting implements. And in it he also entertained parties who hired him. As here he made no claim to own the land. We held he was not an actual occupant within the meaning of the statute. This result would not have been altered if it had also appeared ‘that he raised vegetables.’

[4] The Revised Statutes had originally provided that notice to redeem must be given to one in actual occupancy ‘at the time of the conveyance.’ R. S. part 1, c. 13, tit. 3, § 83. In 1830 notice was required as now to an occupant at the expiration of the time to redeem. Laws of 1830, c. 108. It was held that these two acts were not inconsistent; that both notices were required. Hand v. Ballou, 12 N. Y. 541. As the act of 1855 did not specifically repeal this section of the Revised Statutes, it is said we should now hold that the two provisions are still consistent, and that both still stand. The act of 1855, however, is intended as a complete codification of the law. The provision that a deed given, if there is no occupant at the end of two years from the sale and no redemption, shall vest an absolute title in the grantee (section 63) is repugnant to the idea that any further notice is required. The holding of the trial judge, therefore, that occupation in 1875 was immaterial is right. No notice to redeem was required.

[5] The appellant, however, offered in evidence certain facts which if admitted would have shown that the taxes for the years in question never became a lien on the land. The board of assessors of Hamilton county for these years did not ascertain or extend, nor did they by resolution levy the tax upon the assessment roll of the various towns. They did not ascertain or extend the tax to be levied against the taxable inhabitants of the various towns. They did not levy the tax for the county, including the state tax, upon the valuations as equalized by them. Finally they did not attempt to set down in a separate column in the assessment roll of each tax district the sum to be paid as a tax on the real estate including the tax sales as fixed by...