People v. Turner

• Decision Date: 26 November 1889
• Citation: 117 N.Y. 227,22 N.E. 1022
• Parties: PEOPLE v. TURNER.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 227

22 N.E. 1022

PEOPLE

v.TURNER.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, third department.

Action, for statutory penalties for cutting and carrying away trees from lands constituting part of the forest preserve, by the people, against Benton Turner. A judgment for plaintiff was affirmed by the general term of the supreme court, and defendant appeals.

Beckwith, Barnard & Wheeler, for appellant.

Palmer, Weed & Kellogg, for respondent.

RUGER, C. J.

This is an appeal by defendant from an affirmance by the general term of a judgment rendered upon verdict at circuit for the plaintiff. The action was to recover the statutory penalties for cutting and carrying away trees from lot No. 219, township No. 10, in the county of Franklin; being vacant lands constituting a part of the forest preserve, and belonging to the plaintiff. Section 11, c. 283, Laws 1885, (1 Rev. St., 8th Ed., p. 639.) The answer set up- First, a general denial; and, secondly, that the locus in quo belonged to the defendant. No evidence was given on the trial that lot No. 219 ever belonged to, or was occupied by, the defendant; and the controversy thereupon resulted in an effort on his part to defeat a recovery through the alleged weakness of the plaintiff's title. The plaintiff made title to the lot through a comptroller's deed, dated in 1881 and recorded in 1882, purporting to convey the premises in question to the plaintiff in pursuance of a tax-sale of non-resident lands, had in 1877, for unpaid taxes levied previous to the year 1871, in township No. 10, Franklin county. It is contended by the appellant that such deed was invalid, and conveyed no title, because, for two years previous to, and at the time of the conveyance, a small portion of such lands were in the possession of an actual occupant, who had not been served with notice to redeem, as required by the statute. This fact, if proved, would ordinarily have invalidated the deed given, and was therefore made a prominent issue on the trial. Much evidence was given on the subject on both sides. The evidence of such occupation related to an inconsiderable portion of the lot, and was in itself extremely vague, indefinite, and unsatisfactory. Its force was also much impaired by the testimony of plaintiff's witnesses. A fair question as to whether there had been any legal occupation of any part of these premises during this period was raised for the consideration of the jury upon the evidence, and we think it was properly disposed of by them. Smith v. Sanger, 4 N. Y. 577.

It was also claimed by the defendant that, by reason of certain alleged irregularities on the part of the assessors in making assessments for the years 1864 and 1867 in this township, the comptroller acquired no jurisdiction to make the sale; and an offer to prove this defense was excluded by the court, upon the ground that the comptroller's deed was conclusive evidence of the regularity of the proceedings upon which it was based. The irregularities referred to consisted of the alleged omission by the assessors to give notice of a review of the assessments in the years referred to, or to hold a meeting for such purpose, as required by 2 Rev. St. (7th Ed.) p. 992, §§ 19, 20, and closing and verifying the assessment prior to the time provided by statute for so doing. It is answered to this objection, in the first place, that there is no evidence in the case that the sale was based upon the taxes levied in the years referred to. We think it was essential to the defense attempted to be established that the defendant should affirmatively show, or offer to show, that the sale was founded upon the alleged irregular taxes. The burden of proving this fact lay upon the party alleging it; and, no attempt having been made to prove it, there was no legal defense proved, or offered to be proved, by the defendant in respect to the matter referred to. Showing, or offering to show, that there were irregularities in the assessments for some of the years prior to 1871 had no tendency to show that there were not others which were valid, upon which the sale might have been lawfully made.

A broader ground for the rejection of the evidence offered is afforded by the effect to be ascribed to a comptroller's deed, after a certain lapse of time, under chapter 448 of the Laws of 1885, (2 Rev. St. N. Y., 8th Ed., p. 1145.) That act provides, in relation to such conveyances, that ‘all such conveyances that have been heretofore executed by the comptroller, * * * after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, * * * shall, six months after this act takes effect, be conclusive evidence that the sale, and all proceedings prior thereto, * * * were regular, and were regularly given, published, and served according to the provisions of this act, and all laws directing or requiring the same; * * * and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof, from and after the expiration of two years from the date of recording such other conveyances.’ The section then further provides that ‘all such conveyances and certificates, and the taxes and tax-sales on which they are based, shall be subject to cancellation as now provided by law, on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid.’ The act, in terms, purports to preserve all existing rights of tax-payers for the period of six months after the passage of the act, and to establish a rule of evidence to govern future controversies, which made such deeds presumptive evidence of the regularity of the proceedings upon which they were based, and, after two years from the recording, conclusive evidence of the same matters. With reference to the six-months provision, it operates, as to all existing cases, as a limitation upon the tax-payer's right to assert his claims under pre-existing laws, and, as to all future cases, provides that the lapse of two years from recording shall make that which was before presumptive evidence only conclusive upon the rights of the parties. The act seems to be, in its principal aspects, one of limitation, and, as such, is within the constitutional power of the legislature to enact, as affecting future cases, and, we think, within settled rules, equally within its power as to existing rights. It gives in all cases a time for the person aggrieved to establish his rights, unaffected by the provisions of the enactment, but provides that after the lapse of a certain time the comptroller's deed shall be conclusive evidence of the regularity of the proceedings upon which it is based. Legislation of such a character has frequently been held within the constitutional power of the legislature to enact.

The power of the legislature to change rules of evidence as they exist at common law, and to limit, change, and vary existing rules for the limitation of actions, has been the subject of frequent consideration in the courts, and has been uniformly held not to be affected or restricted by the constitutional provisions prohibiting the taking of life, liberty, or property without due process of law. Rexford v. Knight, 11 N. Y. 308;Hand v. Ballou, 12 N. Y. 541;Howard v. Moot, 64 N. Y. 262;Terry v. Anderson, 95 U. S. 628;Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170;Hickox v. Tallman, 38 Barb. 608;Webb v. Den, 17 How. 576. It was held in Hickox v. Tallman that there could be no vested right in a rule of evidence, and that therefore the legislature could repeal a statute making a comptroller's deed presumptive evidence of the regularity of the proceedings upon which it was based, without affecting any constitutional right of the grantee in such deed. Webb v. Den held that a statute providing that deeds which had been registered 20 years or more should be presumed to be upon lawful authority, whether legally probated or not, was constitutional, and within the authority of the legislature to make. Considered as an act of limitation, the only question in relation thereto is whether such limitation is just, and gives the claimant a reasonable opportunity to enforce his rights. See authorities, supra. Under all of the circumstances of the case, it cannot, we think, be said, as a question of law, that the time afforded is unreasonable. Considered as establishing a rule of evidence, the only question for examination is whether property is thereby necessarily taken without due process of law. It is not contended by the defendant but that if this statute be given its natural meaning and effect the comptroller's deed vests a valid title to the land in the plaintiff; but it is claimed that the statute is unconstitutional and void, as violating that provision of the constitution which prohibits the taking of ‘life, liberty, or property without due process of law;’ and it is urged that the exercise of the power of taxation cannot lawfully be employed without giving the tax-payer, at some stage of the proceedings, a right to be heard in relation to the imposition of taxes upon his property. Conceding, for the purpose of the argument, the correctness of this proposition. (Stuart v. Palmer, 74 N. Y. 183;Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Id., 125 U. S. 356, 8 Sup. Ct. Rep. 921,) it is a matter of grave doubt whether a stranger, not being in possession of or claiming title to, the property taken, can raise the question that it has been illegally taken from another. The owner may waive the constitutional protection to his...