People v. Hagadorn

The pleadings in this ease on both sides seem to be inartificially drawn, and, if the proper objections had been taken, it is by no means certain that a defense could have been proved; but, under the liberal rules established by the Code of Civil Procedure and the course c-f the trial, we are constrained to determine the case upon the, facts proved, and the issue thus apparently made and tried. Not only the complaint, but also the answer, was argumentative in character; th^ plain tiff deducing its title to the property in dispute as the result of its alleged ownership of the lands, and the defendants claiming to have controverted the fact of such ownership as the .necessary consequence of its denials of the plaintiff’s title. Tbs plaintiff did not claim to have had actual possession of the land, lor of the lumber in dispute, but based the action wholly upon q constructive possession arising out of its claim as being the; real owner of the land. The defendant controverted this fact of possession by proof, and, when possession is relied on to sustain the action, it was always competent for a defendant, in an action of trover, to show that the plaintiff did not have possess ion. If, however, the plaintiff ha/d once established the fact of; its possession, it would have behn incompetent for the defendant to show title in a third persoiji without connecting himself vjith it. All parties assumed tli«5 sufficiency of the defendant’s answer, and the trial proceeded upon rhe theory that the action depended upon the validity of the comptroller’s deed under which the plaintiff claimed!. B'' material objection was raised to a -y of the evidence qifer-T by the defendants, and no question made throughout.rbus fshu upon the form, sufficiency, 01 effect of the defendants''[1] pi vbing.

The plaintiff claimed tlnax die proof of the so • ■ bier's deed established its title to the laud, and that the iq?ñt of possession of the lumber cut thereon i'«>Mowed as a maessary deduvethva from such title; and the dr-f.'udants contended that the plaintiff never had possession, or tine right thereto, because' the deed shown by them had no legal validity. The plaintiff’s right of recovery having been thus made to rest .exclusively upon the validity of its title, and the legal inferences to be drawn therefrom, we must examine the objections to the comptroller’s deeds with a view of determining whether its title was thus established.

It was admitted on the trial that the sale under which the comptroller assumed to execute the deed in question was based upon the non-payment and return of taxes on the land in ques

Wei are quite clear that this proceeding constituted a fatal irregularity in the proceedings to levy the taxes in question. The proceedings by which the annual assessment roll is to be formed are specially pointed out in the statute, and, whenever the requirements are material, they cannot safely be omitted by the officers charged with their performance. It is an elementary ruler that public officers, exercising^ the right of selling the property of the citizen by statutory) authority, are required to pursue the requirements of the[ statute strictly. Thus, the statute requires that the town ¡assessors shall mate annual em mieration and assessment of the pV.rsons and property liable to taxation in the several towns, and «enter the same upon an assessment roll consisting of, four cokftmns, in the first of which shall be entered the names of taxable inhabitants, in the second the quantitjr of land to be taxed to évach person, in the third the value of such land, and in the fourth the value of personal property. When the roll is sworn to [by the assessors, and thus prepared for the action of another bo/dy, it is to be delivered to the supervisor fol transportation ho the board of supervisors. The 'board of supervisors are theiii required, after equalizing valuations in ¿he several assessment rolls in the county, to prepare a fifth column upon the-assessment roll, and estimate and set ¿own therein, opposite to the several sums set down as the valuation of real and personal estate, the' respective sums in 'dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon. Sections 9, 27, 33; 2 Rev. St. (7th Ed.) 990, 996. They are also required to deliver the corrected assessment roll, or a fair copy thereof, to the collectors of the respective towns, and before doing so to annex to such roll a warrant,

It is quite obvious, from the chronological order in which the proceedings are directed to be taken, that the duty of computing and entering the amount of the tax upon the assessment roll is imperative. Legal validity could not be given to a warrant requiring the collector to collect the sums entered in the last column of the assessment roll when none are entered therein, nor could the board of supervisors inform the county treasurer of the aggregate amount of the tax to be collected when it had not been ascertained. Each of these directions requires a completed assessment roll, and the united action of the board of supervisors while they are still in actual session, and capable of corporate and co-operative action. Bradley v. Ward, 58 N. Y., 401 .

The proper assessment of a tax requires, not only the establishment of a ratio upon which the tax is to be based, but also the computation and entry in the roll of the amount of tax levied. Without this, no tax has been levied, and the board of supervisors have failed in the performance of the duty which the statute specifically enjoins upon them. Whatever clerical duty may properly be devolved upon third persons, it is clear that it can be such only as is to be performed in the presence of the board, and under their supervision : and that the duty of • passing upon the question of a corrected assessment roll, and certifying to its accuracy and completeness as a perfected roll, is a judicial duty which cannot be delegated. Bellinger v. Gray, 51 N. Y., 610 .

We are therefore of the opinion that the rolls for the several years 1868, ’69, and ’70, in the town of Stratford, and the warrants attached thereto, were fatally defective, and imposed no, liability upon the persons taxed. It is also equally clear that a return of the non-payment of taxes so levied conferred no authority upon the comptroller to sell the land thus taxed. Thompson v. Burhans, 61 N. Y., 52 ; Whitney v. Thomas, 23 Id. 281.

It is, however, claimed that the taxes for the respective years 1866 and 1867, having been lawfully imposed, and there having been default made in the payment thereof, the comptroller acquired jurisdiction to sell and convey such lands, although the

Under our scheme of taxation,- the tax for each year is separately levied, and returned to the comptroller, and he is under no legal obligation, in making a sale of lands, to join the taxes of different years, or to sell for the aggregate sum of all of the taxes due for separate years upon such parcel of land. The necessary effect of such a joinder of taxes is, therefore, to make the payment of an illegal tax the condition of the owner’s right to retain his property, and subjeqt him, contrary to the meaning and spirit of the statute, to the payment of an unjust and illegal exaction as the price of his legal right to redeem his property. Upon the sale the purchaser is required to bid sufficient to cover all of the taxes claimed against the land, and, upon redemption, the owner is required to pay the same amount, with interest. The sale being for an entire sum, it cannot be legal beyond the amount for which the comptroller was log-ally authorized to sell the land. There can be no division of the sum payable, and no separation which can validate

Many other cases might be cited from these and other states, but sufficient have been referred to to show that the doctrine stated has the support, not only of the federal courts, but also those of every state in the union, except where statutory regulations interfere. We therefore conclude that the comptroller’s deed, under which the plaintiffs sought to make claim to the lumber in question, was wholly void, and the plaintiff’s claim must fail.

The ground suggested by the appellant that the plaintiffs might still recover under their title, as having the original and ultimate property in all of the lands in the state, is quite untenable. The proof of the comptroller’s deed having, as against the state, shown that it had once parted with its original right of property, and assumed to sell the land as that of a citizen for taxes, precludes it from claiming that its original proprietorship still remains in it.

We are therefore of the opinion that the judgment should be affirmed.

All concur.