People ex rel. Marsh v. Campbell — 62 N.Y. St. Rep. 332

Majority

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The People ex rel. P. J. Marsh, App’lt, v. Frank Campbell, as Comptroller, etc., Resp’t.

(Court of Appeals,

Filed October 16, 1894.)

Headnote

1. Taxes—Sale—Redemption.

On application to comptroller to redeem tract of land, sold for unpaid taxes, occupancy of a log house on an island in a lake, included in the tract, as a hunting camp at irregular intervals, without any use of the mainland, except to roam over it in pursuit of game, does not constitute actual occupancy within the meaning of the statute.

2. Same.

The provisions of section 70, chap. 427 of 1855 does not permit a stranger to the title to intervene.

Appeal from order of the general term of the supreme court in the third judicial department, which affirmed a determination of the comptroller of the state of New York denying an application for the redemption of certain lands from a sale for unpaid taxes.

" A. JD. Wait, for app’lt; T. E. Hancock, Attorney-General, for resp’t.

This is an appeal from an order of the general term, third department, upon certiorari to review a determination of the comptroller of the state of New York denying an application for the redemption of certain land sold for unpaid taxes, affirming the decision of the comptroller The tax sale of some five thousand four hundred and fifty-five acres in Hamilton county took place in 1881, and premises were bid in by the people of the, state. A subsequent tax sale of a larger tract of land in 1885 included the same premises as sold in 1881, and the people of the state were the purchasers at the sale. The comptroller conveyed to the people, under separate deeds, the premises sold at eacli of these sales. The relator seeks to redeem the five thousand four hundred and fifty-five acres, upon the ground that one Alvah Dunning had been the actual occupant of a part of said premises from 1875 to a period subsequent to the delivery of the comptroller’s deeds, and that no notice had been served upon said occupant affording the opportunity to redeem as required by law. Ch. 427, Laws 1855, §§ 68, 69, 70; 2 R. S. [Banks’ 8th ed.] 1141.

The decision of the general term,- that the occupancy by Dnnning of a loghouse located on a island in the Eighth lake of the Fulton chain as a hunting camp, at irregular intervals and without any use of the mainland, except to roam over it in pursuit of game, did not constitute actual occupancy under the statute, meets with our approval, and we should adopt the opinion below did we not deem it our duty to call attention to an additional reason for affirming the order appealed from.

The application to redeem the premises in question was made to the comptroller by P. J. Marsh, the relator, who signs the same “P. J. Marsh, Agt.” The application does not disclose that Marsh had any interest in the premises sought to be redeemed, nor does the record show the meaning of the word “Agt.” after the signature of the relator to the application to redeem. The

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relator’s right to intervene is rested upon § 70 of chap. 427, Laws 1855, already referred to. This section reads : ‘‘The occupant or any other person may, at any timé within the six months mentioned in such notice, redeem the said land,” etc. It is insisted that the proper construction of this section entitles any person to redeem, although an entire stranger having no interest in the premises.

This section "admits of no such construction, and is general phraseology was designed to include any other person than the occupant having, or claiming in good faith to have, such substantial interest in the premises as would entitle him to redeem. The pernicious practice that obtains of permitting a stranger to the title to intervene and set the machinery of the comptroller’s office in motion in order that he may redeem lands sold for taxes has no foundation in law.

We affirm this order on the grounds that no part of the premises sought to de redeemed had an actual occupant in contemplation of law, and that the relator has no legal stauding in this proceeding and is not entitled to redeem.

The order should be affirmed, with costs.

All concur. Order affirmed.