#### James J. Bennett, Plaintiff, *v.*Frank Kovarick, Defendant.

(Supreme Court, Suffolk Trial Term,

March, 1898.)

1. Ejectment — Proof of right to possession.

Actual occupation, by the mesne grantor of the plaintiff in an action of ejectment, of a part of a tract of woodland under an absolute conveyance, when accompanied by acts of dominion in cultivating the cleared land and in cutting timber from the woodland, sufficiently establish a legal right of possession.

*2.*Same — Assessment of an ¡individual tract containing numbered full lots.

The failure of assessors to comply with the statutory ¡requirement (1 B. 'S., pt. 1, chap. 13, tit. 2, art. 2, § 12), that they designate, upon their roll, a subdivided tract by its name and each full lot by its number and that they set down opposite the number of each lot, in ¡the second and third columns of the roll, respectively, the quantity of land in the lot liable to ¡taxation and its valuation, is a fatal defect and a tax purchaser of one of the lots acquires no title by the sale.

*743. Same — Failure of mortgagee to file a notice of his mortgage, in order to redeem from a tax sale.

Where an assessment for taxes is .invalid, the rights of a mortgagee, under whom ¡a plaintiff in ejectment claims, are not affected by his failure to file a notice and description of his mortgage in the manner provided by section 1 of chapter 280 of the (Laws of .1870, a proceeding made requisite by the statute in order to redeem from a tax sale.

4. Same — Special statute as to effect of a county treasurer’s deed — Be-peal by implication.

Where an unrepealed special statute (Laws Of 1873, chap. 620, § 9, as amended by Laws of 1875, chap. .80) declares that the deed of a particular county treasurer shall be merely presumptive evidence of the fact that the proceedings prior to the tax salei were regular, the provisions of the Tax Law (Laws of 1896, chap. 908, § 132) declaring such a deed to be conclusive evidence of that fact, are' inapplicable, as the two statutes are independent, and a repeal by implication is not favored.

Trial of an action of ejectment without a jury.

T. F. Neville & T. M. Griffing, for plaintiff.

W. H. Jaycox, for defendant.

Maddox, J.

This is an action of ejectment, plaintiff seeking to recover possession' of lots 11 and 12 in block -11 on sheet 3 of *“*Map of property at Wellwood, Long .Island, on ¡South Side railroad,” made by J. Sammis, surveyor, in 1869, which formed part of the woodland embraced in the tract of about 400 acres of land conveyed by Jones, as trustee, to Hannah H. Hone, by deed bearing date December '8, 1857, and recorded May 30, 1862, and plaintiff claims title through mesne conveyances.

The deed to Hone was an absolute, conveyance and constituted color of title. 3 Am. & Eng. Ency. of Law, 276; Thompson v. Burhans, 61 N. Y. 60.

The tract conveyed was known as the “Hone farm,” and she resided on it. It was not inclosed, and the actual occupation of a part was constructive possession ¡of the balance of the grant.

The actual occupancy by Hone, by her son-in-law, Anthony, and by her grantee Wellwood, their acts of dominion and of ownership, viz., residence thereon, cultivation of the cleared land and the cutting, from various parts of the woodland, including that *75part embracing the lots in question, of timber for firewood, for use upon the farm and for sale, were all open, visible and notorious and continued until the plotting of the tract into lots by Wellwood and the making of the aforesaid map in 1869. Then followed the laying out of streets, the staking out of lots, the erection of houses and sales of lots by Wellwood until the conveyance to Schleier in 1879, and the continuance of possession by Schleier is presumed up to the time of the conveyance, under the mortgage foreclosure, to this plaintiff.

Such actual, visible, notorious and continuous occupation and use of land, under color of title, is sufficient to establish a legal right of possession, a seizin. Miller v. L. I. R. R. Co., 71 N. Y. 384.

Defendant is in the occupancy of said two lots, el aiming title under a deed, dated March 24, 1893, and recorded in the Suffolk county clerk’s office, in which county said lands are situated on April 15, 1893, from the county treasurer of that county, conveying (§§ 4, 5, chap. 620, Laws of 1873, as amended by chap. 80, Laws of 1875), after a sale, in March, 1891, for unpaid taxes for .the year 1889, land “ Situate in the town of Breslau, County of Suffolk^ viz.: 2 lots 11 and 12, Block 11, Sheet 3; ” and it appears that the lots so sold and conveyed had been entered and assessed upon the *“*assessment-roll of the town of Babylon, Suffolk county, N. Y., for the year 1889, • Nonresident property (of lots) owners unknown,” as one plot or parcel, *i. e., “*2 Lot, 11, 12, Bk. 11, St. 3.”

It is in evidence that there are three other maps of property in that vicinity known ¡as sheets 3, but it does not appear that there are on any of such maps lots bearing and having the same designations as the two in question, viz., 11 and 12 in block 11, sheet 3, nor was it shown that there is upon such assessment-roll, any other entry of lots having those distinguishing numbers, and this case has been presented by counsel upon the theory that the land in dispute is the same as that so entered upon the assessment-roll and afterwards sold and conveyed to the defendant.

As the premises in question were full lots, having each a dis¡tinguishing number and embraced in a subdivided tract, it was the duty of the assessors to designate the tract by its name, the lots by their respective numbers, and opposite the number of each lot to set down in the second ¡and third columns of said roll, first: the quantity of land in such lot liable to taxation and, in the third, the valuation thereof. B. S., part 1, chap. 13, tit. 2, art. 2, § 12. .

*76This has not been, done and such failure to comply with the plain requirements of the statute rendered the assessment void. They were fatal omissions. Tallman v. White, *2*N. Y. 70; Zink v. McManus, 121 id. 265; Matter of N. Y. C. *&*H. R. R. R. Co., 90 id. 349; May v. Traphagen, 139 id. 478.

Defendant contends that his title is valid and effectual as against the plaintiff, because of the failure to file the notice and description of the mortgage to Whiton and Smith, as provided by section 1, chapter 280, Laws of 1870, since it is through the foreclosure of that mortgage plaintiff traces his title.

To this proposition I cannot give assent, for, as appears above, the assessment was invalid and hence the' mortgagee’s rights were not divested and the lien of the mortgage remained undisturbed. Cromwell v. MacLean, 123 N. Y. 485.

Defendant also urges that the county treasurer’s deed to him, having been recorded more than two years, has, pursuant to. section 132 of the “ Tax Law ’’.(chapter 908, Laws of 1896), become “ conclusive evidence that the sale and the proceedings prior thereto, from and including the assessment of the lands * * * were regular.”

Ror can this contention be sustained, since the special statute, chapter 620, Laws of 1873, as amended by chapter 80, Laws of 1875, relating-to that county, section 9 of which provides that the “ conveyance shall be conclusive evidence that the sale iwas regular and also presumptive evidence that all the previous proceedings were regular ” has not. been repealed, ¡and the rule of construction that a special statute is not repealed by a general act, unless the intention to repeal is manifest, appfies. Buffalo Cem. Assn. v. City of Buffalo, 118 N. Y. 66; Weiler v. Nembach, 114 id. 39.

The fact, that the act of 1873 is not included among the repealed laws enumerated in the schedule annexed to the act of 1896 may well be referred to as negativing any legislative intent to repeal the same. It will be seen that the act of .1873 makes the conveyance conclusive evidence of the regularity of the sale and presumptive evidence only of the regularity , of the prior proceedings, and the general act of 1896 cannot be referred to for the purpose of removing that'limitation nor of extending or enlarging the prescribed effect of a conveyance given pursuant to the provision of the act of 1873 as amended.

*77The two statutes can and must stand alone and separate. The later act, that of 1896, is not amendatory of the former.

There was no valid assessment of the lots in question, no title was conveyed hy the deed to the defendant, and hence the act of 1896, section 132, even if it applied here, would not have the legalizing effect contended for by the defendant. Cromwell v. MacLean, 123 N. Y. 489; Ne-ha-sa-ne Park Assn v. Lloyd, *7*App. Div. 365.

Judgment is, therefore, directed for plaintiff with six cents damages, since no proof of damage was introduced.

Judgment for plaintiff.