Levy v. Newman — 40 N.Y. St. Rep. 489

Majority

p. 489

Michael Levy and Henry May, Resp’ts, v. Emanuel Newman, App’lt.

(Court of Appeals, Second Division,

Filed October 20, 1891.)

Headnote

Taxes—Sale—Infancy—Brooklyn.

Section 9, of title 8, of chapter 803, Laws 1873, is not applicable to the sale and redemption of lands for taxes readjusted under chapter 114, Laws 1883. The title of persons owning the fee at the time of a sale under the statute of 1883, both infants and adults, is cut off by the sale, and by their failure to redeem within the time and in the manner provided by said statute.

Appeal from a judgment of the general term, of the supreme court in the second judicial department, which affirmed a judgment entered on the decision of a circuit court without a jury.

Ira Leo Bamberger, for resp’ts; Fernando Solinger, for app’lt

This action was brought to recover the purchaseThis price of land which, September 1, 1887, the plaintiffs contracted to sell, and the defendant to buy, by an executory contract to be performed October 17, 1887. The defense interposed is

p. 490

that the plaintiffs were unable to convey a perfect title. February 3, 1886, the registrar of arrears of the city of Brooklyn sold the lot in question to David J. Eisner (from whom the plaintiffs, through mesne conveyances, derived their title) for unpaid taxes pursuant to chapter 114 of the Laws of 1883. At this-time three infants owned five-ninths of the land as tenants in common with several adults, who owned four-ninths. The adults and infants were personally served with notice of the sale, but failed to redeem within the time prescribed by statute. Neither of the infants had a general guardian, and the defendant insists that their right of redemption has not been cut off.

By title 8 of chapter 863 of the Laws of 1873 (the late charter of the city of Brooklyn) a department of arrears was created and charged with the duty of selling property for unpaid taxes. By this title the procedure by which sales were to be made and redemptions effected was prescribed with particularity. Section 9 of this title provides:

“ Section 9. Whenever such registrar shall receive satisfactory information that the land as sold belongs to an idiot or insane person, for whose estate no committee shall have been appointed, or to an infant having no guardian, he shall not execute a conveyance of their lands until at least one month after he shall have legal evidence that such disability has been removed or a committee or guardian of the estate has been appointed. And until the expiration of said month such committee or guardian may redeem such land in the same manner as hereinbefore provided.”

On the 16th of March, 1883, the taxes in arrear in this city exceeded $10,000,000, and on that date chapter 114, Laws 1883, was passed, by which the board of assessors was authorized to determine the proportion of the taxes in arrear assessed prior to July 1, 1882, which ought to be paid. The amounts found to be equitably chargeable to each piece of property were to be a lien on the land, and a complete scheme was provided for collecting the readjusted taxes, and in case of their non-payment for the sale of the property against which they were assessed, and for the redemption of the property sold pursuant to the act. It is not asserted, and could not be successfully, that the readjusted taxes could be collected by the procedure prescribed by the charter of 1873, but they could only be by the mode provided by chapter 114, from which § 9, above quoted, is omitted. This section was not repealed by the act of 1883, but by the terms of the statute the section became wholly inapplicable to the sale and redemption of land for taxes readjusted under the statute of 1883.

The right to redeem lands sold to enforce the collection of taxes assessed against it is purely statutory, and statutes providing the procedure for assessing and collecting taxes, for the sale of land for their non-payment, and for the redemption of lands sold, are applicable to infants and persons under disabilities unless they are excepted from their operation. Metz v. Hipps, 96 Penn. St., 15 ; Smith v. Macon, 20 Ark., 17 ; 2 Black. Tax Titles (5th ed.), § 713; Cooley Tax. (2d ed.), 533, 534; Burroughs Tax., 362: Ang. Lim. (6th ed.), § 194.

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It is a general rule that statutes limiting the time in which, and prescribing the procedure by which, rights shall be enforced, are applicable to persons under disabilities, and unless expressly excepted. Bucklin v. Ford, 5 Barb., 393 ; Bank of the State of Alabama v. Dalton, 9 How., U. S., 522; The Sam Slick, 2 Curtis C. C., 480; The U. S. v. Maillard, 4 Ben., 459 ; Howell v. Hair, 15 Ala., 194 ; Ang. Lim. (6th ed.), § 194.

The title of the persons owning the fee at the time of a tax sale, both infants and adults, was cut off by the sale, and by their failure to redeem within the time and in the manner provided by the statute under which the sale was made. It follows that the plaintiffs tendered to the defendant a good title, and they are entitled to recover the purchase price.

The judgment should be affirmed, with costs.

All concur.