People v. Turner

• Decision Date: 09 April 1895
• Parties: PEOPLE v. TURNER.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 451

40 N.E. 400

PEOPLE

v.TURNER.

Court of Appeals of New York.

April 9, 1895.

Appeal from supreme court, general term, Third department.

Action of replevin by the people against Benton Turner to recover logs taken by the defendant from lands included in the forest preserve. From a judgment of the general term affirming a judgment for the plaintiff, defendant appeals. Affirmed.

Frank E. Smith, for appellant.

Albert Hessberg, for the People.

GRAY, J.

The appellant in this case is the same person whose appeal was recently under review by us. 117 N. Y. 227, 22 N. E. 1022. The decision there made must be regarded as operative in the present appeal. In the former case the action was to recover penalties for cutting trees upon certain lands in Franklin county, in this state, while in this case the action is one of replevin to recover logs taken by the defendant from other lands in that county. The facts affecting the defendant's position towards the lands differ in the two cases in this: that in the earlier case the defendant was not in possession and showed no title to the lands, and was, therefore, a trespasser, while in the present case he claims to have acquired the title, and to have been in possession. Although we might safely rest the determination of this appeal upon the decision rendered in the previous case, where the question was treated as though the defendant had a right, as an owner of the property, to rebut the plaintiff's proof of title, I will nevertheless state briefly the reasons for affirming this judgment.

The facts respecting the acquisition of title by the defendant are these, viz.: That the defendant received in 1886 a deed from one Riley, who, in the same year, had acquired an interest in the lands by a conveyance from six of the eight children of one Norton. Norton had acquired the lands in 1872 from the Barnards, who appear to have held the same by tax title. Norton died in 1882, and subsequently to his death the conveyance to Riley was made by six of his children which I mentioned. The plaintiff's title to the lands was acquired through a conveyance by the comptroller to the state October 12, 1877. He had purchased the same at tax sales made for the unpaid taxes of the years 1866 to 1870, inclusive. His deed was made June 9, 1881, and was recorded June 8, [145 N.Y. 456]1882. The two years allowed for redemption had expired October 12, 1879. Three years after the record of the people's deed, chapter 448 of the Laws of 1885 was enacted. That act provided that ‘all 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.’ The section further provided that ‘all such conveyances and certificates and the taxes and tax sales on which they are base, 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 lands in question are within what is known as the ‘Forest Preserve of the State of New York’; and the second section of the act of 1885 makes its provisions applicable to those counties which include the forest preserve. The six months mentioned in the act within which tax sales and proceedings might be open to question after the act went into effect expired December 9, 1885. The forest commission had been established in May, 1885, and, by the act creating that commission, it was given the care, custody, control, and superintendence of the forest preserve. A warden was employed by the forest commission, who discovered the cutting of the timber by the defendant, and this action was then brought, in behalf of the people, by the forest commission.

Referring now to the points taken by the appellant in objection to the right of the people to maintain their action against him, he claims that the tax sale of 1877 was illegal and void, for the reasons that the tax for the year 1867 was based on an assessment roll verified before the third Tuesday of August, and, as to the tax for the year 1870, that the tax assessors had omitted to meet on the third Tuesday of August, as required by law. He further claims that these were jurisdictional defects, which the act of 1885 could not cure, and he also asserts the unconstitutionality of the act. As to the first objection, relating to the proceedings of the tax assessors, I would observe, in the first place, that they were not jurisdictional defects in any proper sense. They were irregularities in the proceedings for the assessment of the tax. Some confusion of thought may be occasioned by the unguarded language of Chief Judge Ruger in People v. Turner, 117 N. Y. 227, 22 N. E. 1022, who speaks of the irregular proceedings by the assessors as jurisdictional defects. But it is very clear that he did not intend the full force of that expression, and that he used those words in the sense in which they were used by Judge Finch in Ensign v. Barse, 107 N. Y. 329, 14 N. E. 400, and 15 N. E. 401. In the latter case it was held that those defects only which went to the jurisdiction and authority of the assessors were not cured by the act of 1882. The defect there considered was the defective date of the assessors' certificate, and that was deemed to be in the nature of an irregularity, merely. In Joslyn v. Rockwell, 128 N. Y. 338, 28 N. E. 604, it was held that the act of 1885, now in question, did not differ, in any material respect, from the act of 1882, which was discussed in Ensign v. Barse. The defects which the appellant here points out in the proceedings of the tax assessors are not unlike, in their effect, to those which were relied upon in his former case. There they 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 the statute, and in closing and verifying the assessments prior to the time provided by law. Those irregularities of the assessors were considered by Judge Ruger in connection with the effect to be given to the comptroller's deed, after a certain lapse of time, under the act of 1885. It was held that the act, in its principal aspect, was one of limitation, and that as such it was within the constitutional power of the legislature to enact as affecting future cases, and, as well, existing rights. The appellant concedes that under that decision the act of 1885 must be regarded as a statute of limitation; but he...