People ex rel. Chase v. Wemple

On the 28th of March, 1893, a writ of certiorari was sued out of the Supreme Court on the petition of Ferdinand "W". Chase,

To this writ separate returns were made by the Comptroller and late Comptroller, and such returns, together with the petition, disclose that in the years 1871, 1877 and 1881 the tract of land in controversy was sold for unpaid taxes, and at each sale was bid in by the State, and a conveyance therefor was duly executed by the Comptroller to the State. That about the 30th of March, 1882, the State of New York, by letters patent,.granted and conveyed all of its interest in such lands, and soon thereafter assigned to the relator the certificate of sale for 1881, and the íelator thereupon entéred into possession of the land so conveyed to him. About the 15th day of June, 1889, Charlotte Gf. Ilall caused an application in her behalf to be made to Edward "Wemple, then the Comptroller of the State, to redeem the lot of land in cpiestion from such tax sales on the ground that the same or some portion thereof was actually occupied at the expiration of the time to redeem from such sale, and that notice had not been served on such occupant, and the relator appeared before the Comptroller by his counsel in opposition to such motion to redeem.

Pending the application for redemption, and before the same was determined, Charlotte G-. Ilall commenced an action of ejectment against the relator to recover the possession of this land.

It is insisted on the part of the relator, and there is some proof in support of -that contention, that, pending that action and before the determination of the motion for the redemption of this land was made, there was an understanding or agreement between the Comptroller or his deputy and the relator, that, as the ejectment suit would determine effectually the right of Hall to redeem, no action would be taken on this application to redeem until the determination of that action, and the petitioner alleges in his petition that, relying upon such understanding, he submitted no affidavits to the Comptroller in opposition to the motion to redeem.

The case discloses that that action was tried December, 1890, and resulted in the determination by the trial court against the plaintiff and in favor of the relator herein, and judgment "was entered accordingly on the 18th day of September, 1891, and that no determination of the motion to redeem these lands was made by Comptroller

After procuring the allowance of such redemption, Charlotte G. Hall moved for a new trial of the action of ejectment, under section 1525 of the Code of Civil Procedure, which motion was granted February 23, 1893.

The return of Comptroller Wemple discloses that after the judgment in favor of the relator in the ejectment case, one of relator’s-attorneys informed the deputy comptroller of the judgment in favor of the relator in that action, and that the deputy informed such attorney that such judgment was practically conclusive against the rights of the applicant to redeem.

The return of Comptroller Campbell shows that he entered upon the duties of his office January 1, 1892; that he found pending in his office the application of Monroe Hall, dated June 15, 1889, to-redeem lot No. 181 from the tax sales of 1871,1877,1881 upon the ground that the land was occupied at the expiration of the two years allowed by law for redemption from each of said sales, and that notice had not been served upon the occupant, and that in support of such application there were on file with the same four affidavits to establish the facts upon which the application was grounded, and no-affidavits were on file or submitted by the relator Chase in opposition to such motion, and that no proof was submitted by Hall that notice had been given to Chase of the application to the Comptroller to redeem, nor did the Comptroller give him any such notice. The return also shows that Comptroller Campbell on his own motion, and without notice from him to either party, on the 28th of November, 1892, made an order allowing the redemption as asked for by the application.

Upon these facts the relator asks upon this certiorari that the order of the Comptroller, allowing a redemption of these lands, be set aside.

Charlotte G. Hall, who made the application in this case to redeem, through her father, Monroe Hall, as her attorney, claims to-be owner of this lot through a deed from the original patentee

The right of Miss Hall to redeem upon these tax sales, through an a2>plication to the Comptroller, is purely a statutory right, and the powers and duties of the Comj>troller, upon an ap2fiication to redeem, are all regulated by statute; and while it is true that the party claiming rights under such a statutory proceeding must show that the requirements of the statute have been strictly complied with, it is equally true that when, by a strict compliance with the requirements of the statute, rights have been established and fixed, the courts, when applied to for that purpose, must protect the party in the enjoyment of such rights.

Nor do we think that in a strict statutory proceeding of this character the court can look beyond the plain requirements of the statute for the purpose of subserving some supposed equities that may seem to exist in favor of one or the other of the parties not embraced within the letter or spirit of the statute.

The Comptroller, having jurisdiction of the parties and subject-matter of these proceedings to redeem, expressly conferred on him by statute, we are not permitted to look beyond the proceedings taken by and before him in determining the validity of his acts.

Section 74 of chapter 427 of the Laws of 1855, as amended by section 1 of chapter 556 of the Laws of 1890, provides as follows: tc In all cases of tax sales heretofore made by the Comptroller, where the land sold was in the actual occupancy of any 2>erson at the expiration of the two years,' * * """ shall become absolute,” etc.

This amended section is a qualification of the provision of the act of 1855, under which a redemption from a tax sale was allowed, and a redemption can now be made only in the manner indicated by section 74 of that act, as amended by the Laws of 1890. The limitation of time for making an a25plication seems to be made to depend upon the 23urchaser under a tax sale serving the notice specified in section 68 of obiter 427 of the Laws of 1855, and it requires the service of that notice to set the Statute of Limitations running, and a party having a right to redeem may do so at any time within the six years allowed for the redenrption thereof, if the purchaser or per

In this case it does not appear to be claimed that any such notice was actually given or any proof of the service of such notice was-filed in the office of the Comptroller.

So far as appears the only thing before Comptroller Campbell at the time of ordering this redemption was the timely application for the same, the undisputed evidence of occupancy within the time which authorized the granting of an application to redeem, and the-proofs that no notice of the sale and conveyance had been given by the purchaser to the party in possession and no proof of the same filed in the Comptroller’s office as required by section 68 of chapter 421 of the Laws of 1855. Under suck circumstances it became the-duty of the Comptroller to act, and it would seem that by chapter 463 of the Laws of 1892 he was required to take action on the application on or before the 1st day of December, 1892.

But it is urged by the relator that the evidence of occupation at the time claimed in the motion to redeem was too slight and that the Comptroller erred in allowing a redemption on the same. The-proof was made in the application and was supported by the affidavits of four apparently disinterested affiants. Evidence in that form was admissible, and it was the duty of the Comptroller to pass upon its sufficiency. It was a question of fact for him to find upon the proofs whether or not this lot was occupied, and upon evidence satisfactory to him he found that fact in favor of the applicant, and this court in reviewing his action and determination ought not,.

Hnder such circumstances it can hardly be said that the Comptroller, by allowing this redemption, was, by an ex parte action or proceeding, depriving the citizen of his property within the case of Ostrander v. Darling ( 53 Hun, 190 ).

It is quite true that loss and inconvenience may result to a purchaser against whom a redemption is allowed; and yet until all •chance of redemption has been removed by the giving of the notice required by statute, and the lapse of time that bars redemption, the purchaser’s title must be regarded as inchoate to such an extent that .a prudent man would not take the hazard of making valuable and expensive improvements until his title had become perfect; and on the other hand, the penalties and requirements on redeeming are so .severe, under the provisions of section 68 of chapter 427 of the Laws of 1855, that a party incurring the same should not be deprived of the fruits of his redemption except it be shown that his redemption falls short of the legal requirements to effect a redemption.

In this case we fail to see any defect in the acts of the Comptroller in allowing this redemption which calls for its reversal.

The order of the Comptroller must be affirmed and the writ quashed, with fifty dollars costs and disbursements against the relator.

Putnam and Herrick, <T<L, concurred.

Order of Comptroller affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.