#### Josiah Lockwood, Resp’t, v. Edward Gelert, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May*24, *1889.)*

1. Taxes and assessments — Sale of property for non-payment of — When notice served—Laws 1882, chap. 410, § 943.

Where a sale has been made of property for the non-payment of taxes and water rents, it is only after the conveyance of the property has been made to the purchaser that he has under section 943 (Laws 1882, chap. 410), any authority to serve the notice therein provided for, upon the owner or occupant, for its redemption.

3. Same—When notice given by purchaser inoperative—Laws 1882, chap. 410, § 941.

Ás provided by section 941 (Laws 1883, chap. 410), an essential act for the necessary completion of the conveyance is that it shall be delivered either to the grantee or to some person for him, and where neither is done, a notice given by a purchaser is inoperative.

*2463. Same—Comptroller’s certificate—Form of—3 R. S. (7th ed.), 1030, §§ 68, 73, 73

When the comptroller shall he satisfied that the proper notice has been served, and the moneys required to be paid have been paid, “he shall under his hand and seal certify such facts, and the conveyance before made shall thereupon become absolute, and the occupant and all others interested in the lands shall be forever barred of all right and title thereto.” *Held,*that a certificate subscribed by the name of the comptroller, but not sealed by him, does not comply with the act directing what shall take place to complete the title of a purchaser.

4. Same—Certificate—When defective.

A certificate made on the day, and not before the day of the delivery of the case is defective.

5. Same — Substantial compliance — When owner not deprived of RIGHT TO REDEEM.

What the law has required .to divest the title by reason of a sale of land for taxes is substantial compliance with all that has been required to complete the sale, and perfect the title of the purchaser. If any material defect intervenes in the proceedings, the title will fail, and the owner will not be deprived of the right to redeem his property, and hold it against a purchaser under the sale.

Appeal from a judgment, recovered on trial before the court.

*A. J. Ditterihoefer,*for app’lt; *John Townsend,*for resp’t.

Dartels, J.

By the judgment in the action the plaintiff was adjudged entitled to recover the possession of land situated on Fourth avenue near One Hundred Twenty-sixth street, in the city of New York. The action was originally commenced in the name of Charles Fremont Willis, and the present plaintiff having succeeded to his interest and title in the property, was substituted in his place as the plaintiff therein.

The evidence proved, and the proof so far was not con- ’ troverted, that the plaintiff was the owner of the legal title to the property in dispute; but the defendant resisted his right to recover possession of the premises, under a sale made for the non-payment of taxes and croton water rents. After the making of the sale the clerk of arrears, under the direction of the comptroller, caused an advertisement to be published for six weeks successively, as that was required to be done by section 941 of chapter 410 of the Laws of' 1882, that unless the lands sold should be redeemed by a date therein mentioned, they would be conveyed to the purchaser. This section further provided, that in case of a failure to redeem the lands from the sale after the expiration of two years, by the payment of the amount mentioned in the certificate of sale, together with interest thereon at the rate of fourteen per cent per annum from the date of the certificate, the comptroller, in the name of the mayor, etc., at the expiration of two years, should execute to the purchaser or purchasers, his, her or their heirs, *247or assigns, a lease, under the common seal of the city, of the lands so sold, for the term of years for which the sale had been made. These lands were not redeemed within the two years, and on or about the 18th of January, 1884, a lease was made out and subscribed as the statute required that to be done, for their conveyance to the defendant as the purchaser thereof. The purchaser on that day procured to be served upon the owner and the occupants of the land, notice in writing, stating the sale on the 24th of December, 1881, to him for the taxes of the year 1871,, to and including 1876, and the croton water rents for the year 1872, to and including the year 1875. This notice contained the statement that the lands had been conveyed to the defendant for the term of one thousand years, the period for which they were sold, and that the amount then owing and required to be paid for the redemption of the land was $743.90, together with three dollars for the notice, advertisement and lease.

•A notice was thereby also given that unless the consideration money mentioned in the conveyance, with the addition of forty-two per cent thereon, together with the sum of three dollars for the notice, advertisement and lease, should be paid to the clerk of arrears in the finance department of the city of New York for the defendant’s benefit, within six months after the service of the notice, that the conveyance would become absolute, and the owners and all others interested in the lands would be barred from all right and title during the term of years for which the sale had been made.

At the time when these notices were served the lease had not been delivered to the defendant, neither was it delivered to him until the 24th of March, 1885.

The statute contains no provision making the lease operative as a conveyance of title prior to the time of its delivery, but it requires, by section 941, that it shall be executed to the purchaser, or purchasers, his, her, or their heirs, etc.; and this language could only be conformed with by the formal executiomof the instrument, and its delivery to the defendant or to some person to hold it for his use. No such delivery was proved upon the trial, for the evidence went no further than to maintain the fact of the formal execution of the lease, and then its detention until the time when it was finally and actually delivered. This failure to deliver the lease must exercise an important effect over the defendant. For as the premises would not be conveyed until the lease was delivered to or for the defendant, he had no authority, under section 943 of the same act, to give notice to the legal owner and occupant of the property, requiring them to redeem it from the sale to save the title. *248What this section of the statute has provided is, that when the lands are conveyed, and shall, at the time of the conveyance, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such lands, tenements, and in' all cases oh the person owning the property so conveyed, whether it be occupied or not, provided the owner resides in the city of New York, requiring the redemption within the six months already mentioned, by the payment of the amount for which the premises may have been sold, with the expenses and forty-two per cent interest.

It is only after the conveyance of the property has been made to the purchaser that he has, by this section any authority .to serve this notice for its redemption.

And the same legal principles must be applicable to, and control the facts, constituting the conveyance, as it would be necessary to observe in the execution of any other-effectual conveyance of the title to land. And an essential act for the necessary completion of the conveyance is that it shall be delivered either to the grantee or to some person for him. Neither was done in this instance, and as the defendant could only give the notice for the six months’ redemption after the title had' been conveyed, the notice which he did give was not operative, for it was given before the title under the lease had become vested in him. The court, at the trial, found all the proceedings to be regular down to and including the notice by the clerk of arrears, but did not find a compliance on the part of the defendant, with the law prescribing the service of the final six months’ notice upon the occupant and owner.

After the service of this notice, either personally, or by leaving it at the dwelling-house of the occupant, or of the person owning the property conveyed, with an individual of suitable age and discretion, an affidavit has been authorized to be made of such service, and it has been further provided by section 945 of the act, that to complete the title to the land conveyed, the person claiming it shall file with the clerk of arrears the affidavit of some person residing in the city of New York, who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice had been duly served, specifying the time, manner and mode of service.

The next section then provides that if the comptroller shall be satisfied by the affidavit that the notice has been duly served, and if the moneys required to be paid for the redemption of the lands shall not have been paid, he “shall, under his hand and seal, certify the fact, and the conveyance shall thereupon become absolute, and the owner *249and all others interested in the lands or tenements shall be barred of all rights thereto, during the term of years for which the same shall have been conveyed.” This affidavit was filed in the office of the comptroller, and on the 24th of March, 1885, the comptroller made and subscribed the certificate in this manner provided for, but he did not seal it.

These sections of the act of 1882 are substantially similar to those contained in the general laws relating to the redemption of lands sold for state taxes. The notice required to be served upon the occupant when the premises shall be occupied, is substantially the same, and after the service thereof, the grantee in the conveyance, in order to complete his title, is required to file with the comptroller of the state a copy of the notice served, together with the affidavit of some person, who shall be certified as credible by the officer before whom it shall be taken, that such notice was duly served, and specifying the mode of service. And when that is done, and the comptroller shall be satisfied that the proper notice has been so served, and the moneys required to be paid have not been paid, “He shall, under his hand and seal certify such facts, and the conveyance before made shall thereupon become absolute, and the occupant and all others interested in the lands, shall be forever barred of all right and title thereto. 2 B. S. [7th ed.], 1030, §§ 68, 72 and 73. What the legislature endeavored to do in the enactment of this part of chapter 410, of the Laws of 1882, was to conform the proceeding to that required to perfect a tax title upon the sale made by the comptroller of the state. And for that reason, the construction which has been given to the general laws is applicable to these sections of the act of 1882, and by that construction, it has been held that the title of a purchaser at the tax sale, which will exclude the owner’s right of redemption, must be completed and certified in this manner. *Lucas*v. McEnerna, 19 Hun, 14; *Stewart*v. *Crysler,*21 id., 285.

This last case, it is true, was reversed in the court of appeals (100 N. Y., 378). But this reversal proceeded upon a ground leaving this principle entirely unaffected. The case of *People*v. *Cady*(105 N. Y., 299; 7 N. Y. State Rep., 505), contains no statement or reference which will justify the omission of the certificate for a completion of the title.

The statute in question has been enacted in such language as to exclude that construction. For it has provided that upon the certificate being made under the hand and seal of the comptroller the conveyance shall become absolute, and all persons interested in the land barred of *250of all right thereto. It is only in this manner that the conveyance can be made absolute. The clear implication of the statute is to that effect. For by providing what shall be done to complete and make the conveyance absolute, it has excluded all grounds for supposition that it could become absolute in any other manner.

Why the legislature should have required this certificate to be sealed is not manifested in the section of the act of 1882. Neither is it in the section of the general law using the same language. But that the certificate shall be both subscribed and sealed, has been clearly required. Its effect, when regularly made, would be to divest the title of the owner of the property, and the legislature no doubt intended that so important an event should not be permitted without observing both these formalities. The act is one to be followed by grave consequences that of forfeiting the estate of the owner for the period, as the sale was in this instance, of one thousand years, and -the legislature intended that the law should be carefully and formally observed to produce this result.

'For that reason, in each of the statutes, it has required that the certificate of the comptroller of the state in the one instance, and of the city in the other, shall be under his hand and seal. This certificate did not comply with what this section of the act directed should take place to complete the title of the purchaser at the tax sale. For while it was subscribed by the name of the comptroller of the city, it was not sealed by him, but was sealed under the authority and direction of his successor in office.

This section of the act required both to be concurrent and by the same officer. It must be under his hand and seal, and not under the hand of one officer and the seal of another. A still further and as grave a defect in the certificate consists in the fact that it was so made on the day, and not before the day, of the delivery of the lease.

Because of these defects in the title of the defendant, the owner of the property had the right to redeem, as he actually did, on the 16th of February, 1888, by paying to the collector of assessments and clerk of arrears the sum of $1,059.34, for the benefit of the defendant. This redemption, it is true, was made under the authority of a judgment of the superior court in an action brought by the , plaintiff against the clerk of arrears, but of which the de- • fendant before its trial had notice. It is not necessary to decide that he was by reason of this notice concluded by the judgment, although the case of *Heiser*v. *Hatch*(86 N. Y., 614), would indicate the law to be that he might be held to> be bound.

What the law has required to divest the title by reason ■ of a sale of land for taxes, is a substantial compliance with . all that has been required to complete the sale and perfect *251the title of the purchaser. If any material defect intervenes in the proceedings, the title will fail and the owner will not be deprived of the right to redeem his property and hold it against a purchaser under the sale.

The judgment in this case is right, and it should be affirmed, with costs.

Van Brunt, Ch. J., concurs in result; Brady, J., concurs.