Bandler v. Hill

“That the assessments for 1898, 1899, and 1900 [of the property involved in said application, I assume] are not set out in a separate part of the assessment rolls for said years, for the listing of property of nonresidents; that the quantity of land assessed is not set down in the column provided for the same and for such purpose in the assessment rolls; that said assessment was assessed against individuals in some cases, and not assessed as nonresident "land, the same being commingled with resident property; that the warrant attached to the assessment rolls for said years of 1898, 1899, and 1900 had the seals of the board of supervisors attached.”

At the time of the commencement of such proceeding before the county treasurer, the tax deeds to Kusch had been recorded more than seven years; and the time to redeem said lots from the tax sales expired in December, 1903, more than nine years prior to such application. In the view which I take of the case the testimony given on the trial, relating chiefly to certain improvements on the premises, is unimportant. The statement of facts concludes as follows:

“It is further stipulated that if the county treasurer had no jurisdiction -over the said proceedings instituted before him, and if his order made therein was void and of no force and effect, then the defendants are vested with title to said premises, and if said county treasurer had jurisdiction over said

proceedings and his order made therein is valid and of full force and effect, then the plaintiff is vested with title to said premises.”

There is therefore but one question for the court to determine, and I have accordingly not considered the question whether or not the conveyance to plaintiff is void as champertous, nor have I considered whether or not plaintiff is entitled to succeed in this action on account of defects in defendants’ tax titles, irrespective of the proceedings before the county treasurer.

[1-3] The Tax Law of 1896 (Laws of 1896, c. 908) contained'two sections authorizing the Comptroller of the state in certain cases to cancel tax sales. The first of these (section 132) reads as follows:

“Effect of Former Deeds—Every such conveyance (referring to conveyances authorized by section 131) heretofore executed by the Comptroller, county treasurer or county judge and all conveyances of the same lands by his grantee or grantees therein named, which have for two years been recorded in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the Comptroller, that shall have remained in force for two years after the last day allowed by law for redemption from such sale, shall be conclusive evidence that the sale and proceedings prior thereto, from and including the assessment of the lands, and all notices required by law to be given previous to the expiration of the time allowed for redemption, were regular and were regularly given, published and served according to the provisions of all laws directing and requiring the same or in any manner relating thereto, but all such conveyances and certificates, and the taxes and tax sales on which they are based, shall be subject to cancellation, by reason of the 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, or by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the Comptroller, or in an action brought before a competent court therefor; provided, however, that such application shall be made, or such action brought, in the case of all sales held prior to the year eighteen hundred and ninety-five, within one year from the passage of this act; and in the case of the sale of eighteen hundred and ninety-five and of all sales hereafter held, that such application shall be made, or such action brought, within five years from the expiration of the period allowed by law for the redemption of lands sold at the particular sale sought to be canceled.”

Section 140, the other section above referred to, reads as follows:

“Cancellation of Sales.—The Comptroller shall not convey any lands sold for taxes if he shall discover before the conveyance that the sale was for any cause invalid or ineffectual to give title to the lands sold; but he shall cancel the sale and forthwith cause the purchase money and interest thereon to be refunded out of the state treasury to the purchaser, his representatives or assigns. If the error originated with the county or town officers the sum paid shall be a charge against the county from which the tax was returned, and the board of supervisors thereof shall cause the same to be assessed, levied and collected and paid into the state treasury. If he shall not discover that the sale was invalid until after a conveyance of the lands sold shall have been executed he shall, on application of any person having any interest therein at the time of the sale, on receiving proof thereof, cancel the sale, refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money and interest thereon, and recharge the county from which the tax was returned with the amount of purchase money and interest from the time of sale, which the county shall cause to be levied and paid into the state treasury. On any such application the Comptroller may appoint a commissioner with like powers and duties as in the case of an application for redemption; provided, however, that in any county which does not include a

portion of the forest preserve, such application for cancellation may also be made by the owner of the lands at the time of the tax sale.”

These provisions were by section 157 of the same act made applicable to sales made by a county treasurer, and the county treasurer was in such cases invested with the same powers as the Comptroller. Sections 132, 140, and 157 of the Tax Law of 1896 have been substantially re-enacted in the Tax Law of 1909 '(Laws of 1909, c. 62, §§ 132, 140, 158); and hence, notwithstanding the formal repeal of tbe former tax law by the latter, the provisions of those sections must be deemed to have been continuously in force since the Tax Law of 1896 took effect (June 15, 1896), and to speak from that time, or from the time when that act became a law (May 27, 1896), at least so far as the matters involved in the present action, which have all transpired since 1896, are concerned (Gen. Construction Law, § 95; People ex rel. Donegan v. Dooling, 141 App. Div. 31 , 32, 125 N. Y. Supp. 783 ). The purpose and intent of sections 132 and 140 is not entirely plain. Section 140 seems to be prospective in its language, and there is nothing requiring a retrospective construction to be given it. Section 132, on the other hand, would appear to be wholly retrospective were it not for the use of the word “hereafter” in the last clause, which indicates that the words “all such conveyances” in the clause beginning “but all such conveyances and certificates and the taxes and tax sales op which they are based shall be subject to cancellation,” etc., refer back to section 131 and the conveyances therein provided for, rather than to “every such conveyance heretofore executed,” etc., at the beginning of section 132. Thus section 132, so far as it provides for an application to the Comptroller for the cancellation of a tax sale, is prospective as well as retrospective, and it is apparent that sections 132 and 140 to some extent overlap.

[4, 5] The application made by Sicardi, Koch, and Goetschius for the cancellation of the tax sales in question herein is stated in the agreed statement of facts to have been made under section 140, and this is obvious also from the procedure followed. It will therefore be pertinent first to inquire whether the county treasurer had jurisdiction under that section to entertain the application and make the order which he did make. The plaintiff must rely wholly on the last clause of the section, which was added in 1896; for the section as it read previous to that addition was held to authorize an application for the cancellation of a tax sale only by the purchaser and not by the owner (People ex rel. Wright v. Chapin, 104 N. Y. 369 , 5 N. E. 64 , 11 N. E. 383 ; Ostrander v. Darling, 127 N. Y. 70 , 27 N. E. 353 ; People ex rel. Hamilton Park Co. v. Wemple, 139 N. Y. 240 , 34 N. E. 883 ; People ex rel. Witte v. Roberts, 144 N. Y. 234 , 39 N. E. 85 ; People ex rel. Millard v. Roberts, 151 N. Y. 540 , 45 N. E. 941 ; People ex rel. Staples v. Sohmer, 206 N. Y. 42 , 99 N. E. 156 . The owner who is permitted to •make the application under the added clause is “the owner of the lands at the time of the tax sale.” Such an application may not be made either by'the successor in interest of the purchaser or by the successor in interest of the owner in those cases where the owner may apply. See Report of Attorney General, 1911, vol. 2, pp. 185-189.

[6] I find nothing in the recent case of People ex rel. Staples v. Sohmer, ' 206 N. Y. 39 , 99 N. E. 156 , inconsistent with the conclusion I have reached. In that case the relators, who claimed as owners of the premises, were denied relief upon the ground that the Comptroller could not cancel a tax sale, made prior to the Tax Law of 1896, without making the purchaser a party, for which section 140 contained no provision. I am therefore of opinion that the county treasurer had no jurisdiction under section 140 to set aside the tax sales in question in-the case at bar. Did he, then, have jurisdiction under section 132? This question must also, I think, be answered in the negative, because of the lapse of more than five years between the expiration of the time to redeem and the making of the application. Meigs v. Roberts, 162 N. Y. 371 , 56 N. E. 838 , 76 Am. St. Rep. 322 ; Halsted v. Silberstein, 196 N. Y. 1 , 89 N. E. 443 ; Bryan v. McGurk, 200 N. Y. 332 , 335, 93 N. E. 989 . As the sales here involved took place subsequent to 1896,. no question as to the effect of section 132 of the Tax Law of that year as a curative statute can arise; but the section must be considered, for the purposes of the case at bar, as a statute of limitations. Hence, under the authorities last above cited, the question whether or not the defects for which the county treasurer canceled the tax sales were jurisdictional is immaterial. See also Wallace v. McEchron, 176 N. Y. 424 , 68 N. E. 663 . It is urged on behalf of the plaintiff that the county treasurer is placed by force of the statute on an equal footing with a competent court, and hence that as section 132 is a statute of limitation, the fact of the lapse of the five-year period does not affect that officer’s jurisdiction to entertain the application and make the order canceling the sales, but constitutes merely matter of defense.

[7, 8] I cannot agree with the premise upon which this conclusion is sought to be founded, namely, that the county treasurer is invested with the powers and jurisdiction of a court. When an administrative

Although the action of the Comptroller or county treasurer in setting aside a conveyance on application of the owner, or taken in accordance with the statute, may be binding on the purchaser, even without notice or any proceedings judicial in their nature, where the sale has taken place since the enactment of the statute, on the ground that the purchaser takes his title “subject to just such limitations and conditions as the Legislature has prescribed” (People ex rel. Staples v. Sohmer, 206 N. Y. 45 , 99 N. L. 156), nevertheless, as the purchaser has no opportunity under the statute to defend against the application, it can hardly be said that the period of limitation is matter of defense, but rather, and for that very reason, it would seem that the provision for a limitation of time was intended to prescribe a condition precedent to the exercise of jurisdiction. That the purchaser may in fact be notified

It is also urged that the five-year statute of limitations should have been pleaded—in the proceeding before the county treasurer, I assume. What has already been said is a complete answer to that contention, for the objection of want Of jurisdiction of the subject-matter may be raised at any time. The invalidity of the order of the county treasurer, with the reason therefor, was set up in the answer in this action. The provision of section 140 relative to the appointment of a commissioner “with like powers and duties as in case of an application for redemption,” even if applicable to a proceeding under section 132, does not change the views above expressed. The powers and duties of such a commissioner are set forth in section 137 of the Tax Law, and while they include “the same power to issue subpoenas and proceed with the examination of witnesses under oath as is had by a referee in a court of record,” they do not include the power to summon as a party any person having or claiming an adverse interest. Notice to the applicant is specially provided for, but not notice to any other person, and this shows that section 140 in its present form, as well as section 132, contemplates an ex parte application to which the officer and the applicant are the only parties. The plaintiff suggests in his brief that section 141, authorizing the Comptroller (or county treasurer in a proper case) to set aside the cancellation of a tax sale on certain grounds, affords an opportunity for the purchaser, where a sale has been canceled at the instance of the owner, “to present as an affirmative defense the statutes of limitation contained in sections 131 and 132 of the Tax Law.” Section 141 specifies four grounds for setting aside such a cancellation—fraud or misrepresentation, suppression of a material fact, mistake of fact, and want of jurisdiction or legal right to entertain the application. Only the last ground is applicable to the case at bar. Unless, therefore, the lapse of over five years from the expiration of the time for redemption goes to the jurisdiction of the officer, the defendants could have had no relief under this section on that account. If, as I have held, the lapse of time did deprive the county treasurer of jurisdiction, there is no merit in the contention that defendants, in order successfully to defend this action, ought first to have applied to have the cancellation of the tax sales set aside, and this for two reasons: First, because the parties have stipulated, as above set forth, that if the county treasurer did not have jurisdiction of the proceeding before him, then defendants have title to the property, in which case they are entitled to judgment; and, second, because the section does not afford an exclusive remedy, but merely an additional remedy to a party aggrieved by a void cancellation of a tax sale. It does not deprive him of any of his common-law rights or remedies. The same argument applies to want of jurisdiction under section 140, above considered.