White v. Wheeler — 22 N.Y. St. Rep. 853

Majority

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William Augustus White v. George S. Wheeler et al.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Taxation—Tax title—Poweb of legislature—Laws 1883, chap. 114. The legislature has power to declare that a purchaser at a tax sale under chapter 114, Laws 1883, “shall take a good and sufficient title in fee

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simple absolute, to the property sold, of which the deed shall be presumptive evidence.” '

2. Same—Evidence in action to recover possession.

In an action by such a purchaser to recover possession of the property, he is bound to prove nothing but his deed, and his title is presumed The sale is deemed to be based upon an existing arrear, in the absence of proof to the contrary.

3. Same—Assessment—Reference to maps.

The charter of the city of Brooklyn provided that all ward maps ‘ ‘ made, or to be made,” should remain with the assessors, and that all assessments should refer “ to said maps.” A former map referred to the lots in controversy by one designation and number, and a later map referred to them by different numbers. Held, that the assessors were not required to refer . to the former map.

4. Same—Advertisement—Description of property.

The act required that the advertisement of sale must state the ward in which the property to be sold is situate, and shall state that further particulars could be obtained at the register’s office, and “it shall not be • necessary to include any further particulars of the property to be sold.” It is of no moment that the register as a further description to that given by the map numbers, also added the number of feet in a named street.

5. Ejectment—Evidence—Rental value—Code Orv. Pro., § 1531.

Under Code Civil Procedure, § 1531, evidence of the rental value is proper on the trial of an action to recover real property.

6. Constitutional law—Delegation of legislative powers—Taxation

—Laws 1883, chap. 114.

Laws 1883, chap. 114, conferring on the board of assessors of the city of Brooklyn power to determine what proportion of the taxes, assessments, etc., assessed on any lands thereon prior to July 1, 1882, and in arrear, should be justly and fairly charged against and collected from said- lands, and making their determination a valid tax, is constitutional. Tm'rill v. Wheeler (17 N. T. State Rep., 731) followed.

Action to recover real property in the city of Brooklyn. The issues were tried at circuit court in Kings county, and a verdict was directed in favor of the plaintiff and defendant’s exceptions ordered to be heard in the first instance at the general term.

Moore, Low & Wallace, for pl’ff; James Stillman, (John J. Townsend, of counsel), for def’ts.

—It is provided by chapter 114, Laws of 1883, under which the sale in question was made, that the purchaser shall take á good and sufficient title in fee simple, absolute to the property sold of which the said deed shall be presumptive evidence. The objection that it was not in the power of the legislature to so declare is not good. The power has been usually exercised in official sales for taxes.

The same provision exists as to state comptroller’s deed, except that the words are absolute “shall vest in the grantee an absolute estate in fee simple.” 2 R. S. (7th ed., Banks), 1028, § 63.

The court of appeals made no question of the power of

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the legislature, but permitted proof of irregularities to destroy the conveyance. Johnson v. Elwood, 53 N. Y., 431 .

Chapter 65, Laws of 1878, and chapter 263, Laws of 1880, make similar deeds on tax sales evidence of title.

The present law makes the deed presumptive evidence of title, thus in words making the conveyance conform in legal effect to the decision of the court of appeals as to deeds where the words are absolute as to the transfer of title. The plaintiff is, therefore, bound to prove nothing but his deed, and his title was presumed. If he was to prove the negative as to the non-payment of the tax to authorize the sale, the presumption of the deed is of no value to him. The uniform presumption is in favor of the performance of official duty. In the absence of proof to the contrary the sale will and must he deemed to be based upon an existing arrear. The proof shows that there had been a ward map before this assessment was levied and that a new one had been made. The charter requires that all assessments must refer “ to said maps.’"

The charter referred to maps “made or to be made” and required further that they should remain with the assessors. The old map referred to these maps by one designation and number, and the new map referred to them by different numbers, but according to the number on the new map. There was no necessity for the assessors to refer to both maps; both maps were in the office but only one was used as a basis for assessment, and that was in the assessors office for reference for any tax payer. A reference to any former map is not required by the charter. The case shows that the board of assessors made their certificate and delivered the same to the registrar of arrears. The advertisement of sale by the terms of the act must state the ward in which the property to be sold is situate, but shall state that further particulars could be obtained at the register’s office “and it shall not be necessary to include any further particulars of the property to be sold.”

If the land was assessed properly and the arrears properly determined, and advertised properly, it is of ho moment that the register as a further description to that given by the map numbers which was contained in his certificate, also added the number of feet in a named street.

It was an addition to the certificate required by law and designed to aid the tax payer by giving a more specific description. The evidence of the rental value was proper under § 1531 of the Code. The question of validity of the arrears law was decided at the September term of this court, in the case of Terrill v. Wheeler, 17 N. Y. State Rep., 731. We held in that case that the act was not in violation of the constitution, and until the court of appeals passed upon

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the question, that conclusion is controlling in all actions involving the validity of the principles of the act itself.

The exceptions should be overruled and the plaintiff have judgment on the verdict with costs..

All concur.