#### John W. Olmstead, Plaintiff, *v.*James A. Roberts, as Comptroller of the State of New York, Defendant.

(Supreme Court, Hamilton Trial Term,

December, 1910.)

Taxes — Tax titles: Tax deeds—Presumption of regularity of sale — Unrecorded deed; Effect of curative acts — Jurisdictional defects or irregularities — Extension of tax without resolution — Assessment of lands as non-resident: Actions to try title or for possession; Right of action for possession — Defenses — Ownership of interest by State; Evidence —Facts inferable — Irregularity of cancellation.

A deed given by the State Comptroller pursuant to the Tax Law of 1859, which has never been recorded in the clerk’s office of the county in which the lands are situated, raises no presumption of regularity. ,

From the mere fact that upon the cancellation of a tax sale the refund was paid to the wrong person, it may not be inferred that the cancellation was irregular or void.

The owner of an undivided one-half of a tract of land cannot maintain ejectment against the State, where it appears that the State is the owner of the other undivided half part of the tract.

The fact that the tax for which the lot was sold was not extended upon the roll in pursuance of a resolution of the board of supervisors is not a jurisdictional _ defect but an irregularity, merely, which is reached by the curative provisions of chapter 448 of the Laws of 1885.

The assessment of lands as nonresident lands which should have been assessed as resident lands is also an irregularity within reach of a curative act.

The Statute of Limitations contained in chapter 448 of the Laws of 1885 began to run from the time that publication of notice of possession in the Comptroller was complete, and at the expiration of two years became a complete bar to an action against the State to recover the lands.

The limitations of chapter 448 of the Laws of 1885 having run and constituted a bar to recovery, their effect is not destroyed by'the provisions of section 132 of chapter 908 of the Laws of 1896, but remains conclusive.

Action to recover the possession of real property.

*642Griffin *&*Ostrander, for plaintiff.

Edward R. O’Malley, Attorney-General, for defendant.

Van Kirk, J.

. This action was begun in April, 1897; it was brought on for trial in April, 1910. It is an action in ejectment. In the complaint- the plaintiff asks to recover all of lot 340 and 217 acres of lot 4, townships 10' and 2©' of Totten & Crossfield’s Purchase. ■ At the trial leave was given to the plaintiff to -amend, -setting up that he is the owner of an undivided one-half interest in lot 340- and' an undivided three-quarters interest in the -said 217 acres of lot 4. Hereafter said 217 acres will be spoken of for convenience as lot 4. On December 13, 18-94, the notice, under section 13, chapter 711 of the Laws of 1893, was published, declaring the lands in question here wild, vacant and forest lands, and the 'Comptroller in possession thereof.

Plaintiff claims title to 1-o-t 4 under a deed in pursuance to a tax -sale of 18-59 to Daniel L. Jones. This conveyance does not appear of record and was never recorded in the clerk’s office of the county in which the lands were situated. Hot being recorded, -there is no presumption of regularity as to the proceedings leading up to the sale and the execution of the deed under the statutes. The record does later show that Joneis conveyed his interest.to Patrick J. Hanley and Albert- J. Smith in 186©, and still later the title of Hanley and -Smith is conveyed to- Olmstead and -Ostrander. The only record with reference to the cancellation of -the taxes and of the deed to Daniel L. Jones is contained in the plaintiff’s exhibit 8, which shows the date of cancellation as to lot 4 to be January 31, 1885, and the date of the refund, June 16, 1887. An -affidavit of Daniel .L. Jones, claiming the refund is attached, stating' that “ the -sale and conveyance * * * ha-s been canceled.” As both parties hereto claim, there was a cancellation of said sale under which the deed went to Jones. There could be no refund until the -sale was canceled. People ex rel. Ostrander v. Chapin, 109 N. Y. 179. The proof shows that the refund was made, apparently upon an -affidavit incorrectly stating the facts, to -the wrong *643person. But this cancellation was made by -an officer having authority so to do-. The cancelation has never been vacated, nor have -any proceedings been instituted to that end -as provided by the Tax Law. There is not before the court any evidence upon which it can be found that, if attacked, the cancellation would be -set -aside. There is no evidence showing that the cancellation was irregular or void. That the money was refunded to a person n-o-t -entitled thereto, as seems to be the case (People ex rel. Ostrander v. Chapin, 109 N. Y. 177), does not demonstrate the irregularity of the cancellation proceedings. It rather shows that the cancellation proceedings were complete, but that -the refund was no-t made to the person -entitled thereto. If the person entitled to the refund has -any cause to complain it is not that the cancellation w-as irregular or void, but that he was no-t reimbursed. There being no evidence upon which the court here can find that said cancellation was irregular and void, and the plaintiff’s title depending absolutely upon said cancellation -being void, the plaintiff cannot recover in ejectment; and therefore the complaint must be dismissed as to lo-t 4. The plaintiff cites Ostrander v. Darling, 127 N. Y. 70, upon the proposition that the proceedings for cancellation were irregular -and void, but I do not think such decision is -applicable here, because the facts disclosed in Ostrander v. Darling are not disclosed in this ease. In the opinion Judge Haight recites the -defects in the proceedings for cancellation. In. this casé we are not at all informed -a-s to what those proceedings were or by whom instituted.

As to -lot 340 the plaintiff attempts to show title by the record, .beginning with letters patent to Gerrit Smith and tracing by mesne conveyances an undivided -half interest into himself. The plaintiff has not attempted to- show possession in himself or any of his grantors. Lot 340- was sold for taxes, and sales were had in 1881, 1885 and 1890. If these tax sales are not void because of defects in the proceedings, then the title to lot 340 is in the State, to whom the conveyance was made after said sale. The' s-aid sales are attacked only as to the undivided half interest claimed by the plaintiff. The parties, if there be such, claiming to own the other *644undivided half interest, are not before the court and da not dispute the State’s title thereto. So that the plaintiff, although he owns an undivided one-half interest, cannot maintain ejectment against the State, which owns the other half. I think the title of the State under the tax sales must be upheld.

There are two defects urged against the State tax sales of lot 340: The first is that the board of supervisors failed to pass a resolution extending the tax. The evidence does-not show that the figures were not extended upon the tax roll; but it fails to show that said extension was made under a resolution of the board, -and it is claimed that the board can act only by a resolution. While this would be a fatal defect, I think it is an irregularity, the effect of which is destroyed by the curative acts in the statute, -chapter 448 of the Laws of 18-85. The defect- is not a jurisdictional defect, nor is it a defect that affected in any direct way the rights or interests of -the taxpayer. People v. Holmes, 32 App. Div. 631; see also the Tax Law as it then existed, with reference to the requirement for extending the tax, which is as follows: “ They, the board of supervisors, shall estimate and set down in the fifth column, to be prepared for that purpose, in the a-ssessment rolls, opposite to the several sums to be set down as the valuation of real and personal estate, the respective amounts in dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon.”

The second defect claimed is that the lands were assessed as'nonresident lands, when in fact they should have been assessed as resident lands, the owners of interests in said lands being residents of the tax district-. _There are decisions in this State -holding that such a defect is fatal. The reasoning, however, in Halsted v. Silberstein, 196 N. Y. 7, in which Judge Haight speaks for -the court, would indicate that the defect was not jurisdictional but was rather an irregularity, although this .point is not decided. The assessment as nonresident lands gave a lien upon the real estate itse-lf, while the assessment as resident lands would have given a claim -against the owner or occupant, to be collected out of his personal property. Still, I know of no reason why the Legis*645lature could not have modified these provisions as it saw fit, without interfering with the rights of the landowner. The rule laid down in Ensign v. Barse, 107 N. Y. 329, is that the Legislature may by statute cure defects which do not extend to -matters of jurisdiction or to constitutional grounds, if the defect is such as could be dispensed with by tbe Legislature in its -original statute providing for the proceedings. And the statute, as it now stands, provides how, if the taxes are not p-aid by the owner or occupant or are not collected out of his personal property, in the succeeding year the tax may be -made a lien upon -the real estate. So that my impression is that this defect is one which might be erased by a curative act.

Rut, whether or not it -be -an irregularity cured by chapter 448 of the Laws of 1885, or by the act -of 1893, I think the Statute of Limitations is a bar to the prosecution by the plaintiff and to the setting aside of the tax deeds, because void -on -account of said defect. The publication of notice of possession in the Comptroller was complete on the 4th -day of January, 1895. Thi-s action was begun in April, 1897. Erom the time said publication was complete action could have beeu br-ougbt to eject tbe Comptroller from these lauds by the owner thereof. Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303; Halsted v. Silberstein, 196 id. 1. After the expiration of said publication, under the statute, >a pai’ty was permitted to bring action against the State or against the Comptroller representing the State; therefore, the party against whom the statute was running was given his day in court, and chapter 448 of the Laws -of 18-85 contains the Statute of Limitations -applicable. This action was begun after the time limited.

The plaintiff, however, urges that, although the statute had run,under the law of 1885, the law -of 1896 nullified the limitation in said act of 1885 -and gave further time to a plaintiff within which he could prosecute his action -of ejectment. I do not think that this was the intent of the Legislature in passing that section 132 of chapter 908 of the Laws of 1896. It cannot be presumed tbat the Legislature had intended to revive -an action which had -already become barred by the *646statute. If the parties had time and -opportunity to appear in -court -and the statute had run against them the limitation was conclusive; the act of 1896 applied only to those cases -against which the statute- had not run and in which the parties had not had opportunity to seek redress in the courts, because the notice had not been published or for other reasons. McDougall v. State, 109 N. Y. 73; Gates v. State, 128 id. 221, 227, 229; People v. Morgan, 45 App. Div. 19, 24. Plaintiff’s -action -to recover an undivided interest in lot 340 I hold, therefore, to be barred by the Statute of Limitations in chapter 448 of the Laws of 18-85.

There is no -conflict between this holding and the holding made in People v. Golding, 55 Misc. Rep. 425, because in that ease there was no proof of publication of notice of possession in the Comptroller.

Bindings and a decision may be prepared accordingly.

Ordered accordingly.