People ex rel. Ostrander v. Chapin — 12 N.Y. St. Rep. 402

Majority

p. 402

Re People ex rel. George W. Ostrander et al. v. Alfred C. Chapin, as Comptroller.

(Supreme Court, General Term, Third Department,

Filed December, 1887.)

Headnote

Taxes—Sale of lands—Defect in conveyance—Proceedings—To whom MONEY CAN BE REFUNDED.

It is provided by Laws 1855, chap. 427, § 85, that whenever the comptroller shall have sold lands for taxes and the discovery that the sale was

p. 403

invalid shall not be made until after the conveyance shall have been executed for the lands sold, it shall be the duty of the comptroller on receiving evidence thereof, to cancel the sale, to refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money and interest thereon. Held, that where before the discovery of the defective character of the conveyance, the lands had been the subject of conveyance by the grantee of the comptroller, the money was payable to the grantee’s assigns.

Stedman, Thompson & Andrews, for app’lt D. O’Brien, attorney-general, for resp’t.

Section 85, of chap. 427, Laws 1855, provides that whenever the comptroller shall have sold lands for taxes and “the discovery that the sale was invalid shall not be made until after the conveyance shall have been exe- * outed for the lands sold, it shall be the duty of the 'comptroller on receiving evidence thereof, to cancel the sale, to. refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money and interest thereon.”

Here, before the discovery was made, the conveyance had been executed to Orson Bichards. When the comptroller canceled the sale, if Bichards or his representatives had held the lands under the comptroller’s deed, then the purchase money and interest by the terms of the statute would have been payable to one or the other of them.

But Bichards conveyed by deed the most part of these lands,-thus, as we think, presenting the case in which, under the statute, the purchase money for the part sold is payable to “his assigns.”

It would be inequitable for Bichards to receive from the state the purchase money of the lands which he had sold to another. It is his grantee who suffers by the failure of title, and hence has a claim upon the justice of the state. Suppose Bichards insolvent, he would get double pay for this land and his grantee get nothing. The statute should be so construed as to accomplish justice and not invite dishonesty. The right of the grantee to these moneys was sustained in People ex rel., Millard v. Chapin, 40 Hun, 386 . The case was reversed, but upon other grouüds. ( 104 N. Y., 96 .)

The order of the comptroller should be affirmed, with costs. :

Fish and Parker, JJ., concur.