Reid v. Bd. of Supervisors of Albany Cnty.

• Decision Date: 06 October 1891
• Parties: REID v. BOARD OF SUPERVISORS OF ALBANY COUNTY.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 364

28 N.E. 367

REID

v.BOARD OF SUPERVISORS OF ALBANY COUNTY.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, third department.

Action by Mary Birch Reid against the board of supervisors of Albany county. From a judgment affirming a judgment in plaintiff's favor, defendant appeals. Reversed.

William Reid became the purchaser at tax-sales in the city of Albany of certain lands sold for non-payment of taxes thereon, under the act, chapter 86 of the Laws of 1850, and he received the certificates of such sales and the deeds of the lands sold as provided in that act. The sales were made and the moneys paid by him between June, 1875, and June, 1883, both inclusive. The plaintiff has succeeded to the rights of Reid, and commenced this action September 2, 1890, to recover with interest the moneys paid by Reid upon such sales. The defense was the statute of limitations, which was overruled by the trial judge, who gave judgment to the plaintiff for the amount claimed. That judgment having been affirmed at the general term, the defendant has brought this appeal. Other facts appear sufficiently

Andrew Hamilton, for appellants.

Nadrew Hamilton, for appellants.

D. Cady Herrick, for respondent.

EARL, J., ( after stating the facts.)

All the moneys claimed in this action were paid upon the tax-sales, more than seven years before the commencement of the action, and the only question for our determination is whether their recovery is barred by the statute of limitations. Under section 48, art. 6, c. 86, Laws 1850, the purchaser at tax-sales conducted in the city of Albany, upon the payment by him of the amount of his bids, was entitled to receive certificates of such sales, and then he was immediately entitled to possess, hold, and enjoy the lands purchased for the full term mentioned in his certificates, and he was authorized to cause the occupants thereof to be removed therefrom, and the possession thereof delivered to him, in the same manner and by the same proceedings, by and before the same officers, as in the case of a tenant holding over after the expiration of his term without permission of his landlord. Then it was provided in section 52 of the same article, excepting the words in italics, as follows: ‘Whenever any purchaser under such sales shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the board of supervisors of the said county shall, at any time within six years from such sale, reimburse the purchase money so paid, with interest; and, upon their refusal or neglect to do so, the same may be recovered by an action against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose, not otherwise specifically appropriated, upon the production of a certified copy of the judgment; and, if he have no such moneys in his hands, then the same shall be added to the amount of the taxes to be levied on the city of Albany, and collected in the same manner as other contingent expenses, and, when collected, shall be paid over to such purchaser.’ The section was amended by the act (chapter 429, Laws 1889) passed June 11th of that year, by inserting therein the words in italics. It was not alleged in the complaint, and was not shown upon the trial, that any legal proceedings of any kind had been instituted by the purchaser or the plaintiff to recover possession of the real estate. It does not even appear, by allegations or proof, that the purchaser or the plaintiff ever demanded or made any efforts of any kind to obtain such possession. The plaintiff's case rests upon the allegation contained in the complaint, and not denied in the answer, that the purchaser and the plaintiff were unable to recover the possession of the real estate purchased by reason of errors and irregularities in the assessment and in the levying of the taxes, and in the proceedings for the collection thereof. The finding of the trial judge upon that branch of the plaintiff's case was based on that admitted allegation, and he found that the purchaser was entitled to demand possession of the real estate sold to him immediately upon the issuing to him of the certificates of the sales, and ‘that, by reason of errors and irregularities in the proceedings prior to the said sales, the purchaser was unable to recover possession of the parcels sold at the times of such sales, and immediately thereafter.’ The trial judge made a finding of fact based upon an allegation in the complaint, not denied in the answer, ‘that, as a result of a decision of the court of appeals of this state in a similar case, the said tax-sales were declared irregular and void on or about January 7, 1887.’ And upon that finding of fact he based a conclusion of law ‘that neither the said William Reid nor the plaintiff was entitled to demand of the defendants the reimbursement of the moneys so paid out on said tax-sales, and for such certificates and deeds above referred to, until the year 1887, and after such sales certificates and deeds had been declared irregular and void by the court, as hereinbefore found;’ and he held that the statute of limitations did not begin to run until that date. The decision of the court of appeals referred to was made in the case of Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. Rep. 564, a case which arose in the city of Brooklyn, and related exclusively to taxes imposed there. That decision had nothing whatever to do with these parties or these sales. It did not conclude or bind these parties, and simply furnished evidence of the law. It was not even absolutely binding as a precedent in any other case. The court of appeals could disregard it as authority in any subsequent case, if it believed it to be unsound. St. Nicholas Bank v. State Nat. Bank, 27 N. E. Rep. 849, in this court May 30, 1891. These tax-sales were not valid until that decision, and then thereby rendered invalid. They were from the first invalid, and the rights of the parties interested were in no way affected by that decision. The rights and the duty of the purchaser and the obligations of the defendant were precisely the same before that decision as after. Upon this point the following authorities have some bearing: Allen v. Mille, 17 Wend. 202; Parsons v. City of Rochester, 43 Hun, 258; Van Nest v. Mayor, etc., 24 Wkly. Dig. 50; White v. City of Brooklyn, 122 N....