#### The People of the State of New York, Applt’s, *v.*Dwight Hagadorn, *et al.,*Respt’s.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. TROVER — WHEN POSSESSION RELIED ON, DEFENDANT MAT SHOW POSSESSION IN A THIRD PERSON.

, In an action of trover when possession is relied on to sustain the action it is always competent for the defendant to show that the plaintiff did not have possession. Should the plaintiff, however, establish the fact of possession it would be incompetent for the defendant to show title in a third person without connecting himself with it.

2. Taxes — Provisions of statute must be complied with in levying.

The sale under which the comptroller assumed to execute a deed of lands was based upon the non-payment and return of taxes on the land in question for the years 1866 to 1870 inclusive.

Eor the years 1868, 1869, 1870 the hoard of supervisors for the county in - which the lands in question were situated did not compute, enter or extend upon the annual assessment rolls, the aggregate amount of the town and county tax levied upon any of the lands in the town in which the said lands were situated. The supervisor of that town after the final adjournment of the board of supervisors, and after they had signed and attached the collector’s warrant to the uncompleted assessment roll, carried the same home, and in the absence of the board of supervisors, computed the amount of the tax for each of the years in question upon the several pieces of land therein described, and entered it in the roll, and thus filled out, handed the roll and warrant to the collector for collection. The board of supervisors, before adjourning, had in each year fixed the ratio of tax upon the aggregate amount of valuation, and had authorized the supervisor of the town to compute and enter the amount of the tax in the roll. *Held,*that this proceeding constituted a fatal irregularity in the proceedings to levy the taxes in question. That the proceedings by which the annual assessment roll is to be formed are specially pointed out by statute, and whenever the requirements are _._Tnaterial cannot bn s“S-¿ty omitted by the officers charged with their perform-

■3. Same — Salí for non-payment*!»?, statutory provisions must be STRICTLY COMPLIED WITH.

Public officers, exercising the right of selling the property of the citizen by statutory authority, are required to pursue the requirements of the statute —^_sti'ictíy. The rolls for the several years 1868, 1869, 1870 in the said town, and the warrants attached thereto were fatally defective and imposed no liability upon the person taxed, and a return of the non-payment of taxes so levied conferred no authority upon the comptroller to sell the land thus taxed.

*A.*Same — When part of taxes are invalid, sale is void.

• ■ The sale of the said lands having been made for the taxes of the years 1866 to 1870 inclusive, and the taxes for the years 1868, 1869,1870 being void, the sale was an excess of jurisdiction in the officer, making it void. <■

-6. Same — Proprietary right in state — Estoppel.

The proof of a comptroller’s deed having as against the state shown that it had once parted with its original right of property in the said lands and assumed to sell them as that of a citizen for taxes, precludes it from claiming that its original proprietorship remains in it.

*783Appeal from judgment of general term, third department, affirming judgment in favor of defendants, entered on trial of action without jury.

*Dennis*O'Brien, Atty. Gen., for appl’ts ; *Geo. W.*Smith, for resp’ts.

1

 Affirming 36 Hun, 610.

Ruger, C. J.

The pleadings in this ease on both sides seem to be inartificially drawn, and, if the proper objections had been taken, it is by no means certain that a defense could have been proved; but, under the liberal rules established by the Code of Civil Procedure and the course c-f the trial, we are constrained to determine the case upon the, facts proved, and the issue thus apparently made and tried. Not only the complaint, but also the answer, was argumentative in character; th^ plain tiff deducing its title to the property in dispute as the result of its alleged ownership of the lands, and the defendants claiming to have controverted the fact of such ownership as the .necessary consequence of its denials of the plaintiff’s title. Tbs plaintiff did not claim to have had actual possession of the land, lor of the lumber in dispute, but based the action wholly upon q constructive possession arising out of its claim as being the; real owner of the land. The defendant controverted this fact of possession by proof, and, when possession is relied on to sustain the action, it was always competent for a defendant, in an action of trover, to show that the plaintiff did not have possess ion. If, however, the plaintiff ha/d once established the fact of; its possession, it would have behn incompetent for the defendant to show title in a third persoiji without connecting himself vjith it. All parties assumed tli«5 sufficiency of the defendant’s answer, and the trial proceeded upon rhe theory that the action depended upon the validity of the comptroller’s deed under which the plaintiff claimed!. *B''*material objection was raised to a -y of the evidence qifer-T by the defendants, and no question made throughout.rbus fshu upon the form, sufficiency, 01 effect of the defendants''1 pi vbing.

The plaintiff claimed tlnax die proof of the so • ■ bier's deed established its title to the laud, and that the iq?ñt of possession of the lumber cut thereon i'«>Mowed as a maessary deduvethva from such title; and the dr-f.'udants contended that the plaintiff never had possession, or tine right thereto, because' the deed shown by them had no legal validity. The plaintiff’s right of recovery having been thus made to rest .exclusively upon the validity of its title, and the legal inferences to be drawn therefrom, we must examine the objections to the comptroller’s deeds with a view of determining whether its title was thus established.

It was admitted on the trial that the sale under which the comptroller assumed to execute the deed in question was based upon the non-payment and return of taxes on the land in ques*784tion for the years 1866 to 1870, both inclusive. The defendants thereupon gave evidence, without objection, tending to show that for the years ¡1868, 1869, and 1870, the board of supervisors for Fulton county had never computed, entered, or extended upon the annual assessment rolls the aggregate amount of the town and county tax levied upon any of the lands in Stratford, Fulton county, for either of the years named. It appeared that the supervisor for that town after the final adjournment of the board of supervisors, and after they had signed and attached the collector’s warrant to the incompleted assessment roll, carried the same home, and, in the absence of the board of supervisors, computea the amount of the tax for each of the years in question upon tie several pieces of land therein described, and entered it in the roll; and, as thus filled out. handed the r«¿l and warrant to the collector for collection. It was also proved that the board of supervisors, before adjourning, had in.éachyear fixed the ratio of tax upon the aggregate amount of valuation, and had authorized the supervisor of the town feo compute and enter the amount of the tax in the roll.

Wei are quite clear that this proceeding constituted a fatal irregularity in the proceedings to levy the taxes in question. The proceedings by which the annual assessment roll is to be formed are specially pointed out in the statute, and, whenever the requirements are material, they cannot safely be omitted by the officers charged with their performance. It is an elementary ruler that public officers, exercising^ the right of selling the property of the citizen by statutory) authority, are required to pursue the requirements of the[ statute strictly. Thus, the statute requires that the town ¡assessors shall mate annual em mieration and assessment of the pV.rsons and property liable to taxation in the several towns, and «enter the same upon an assessment roll consisting of, four cokftmns, in the first of which shall be entered the names of taxable inhabitants, in the second the quantitjr of land to be taxed to évach person, in the third the value of such land, and in the fourth the value of personal property. When the roll is sworn to [by the assessors, and thus prepared for the action of another bo/dy, it is to be delivered to the supervisor fol transportation ho the board of supervisors. The 'board of supervisors are theiii required, after equalizing valuations in ¿he several assessment rolls in the county, to prepare a fifth column upon the-assessment roll, and estimate and set ¿own therein, opposite to the several sums set down as the valuation of real and personal estate, the' respective sums in 'dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon. Sections 9, 27, 33; 2 Rev. St. (7th Ed.) 990, 996. They are also required to deliver the corrected assessment roll, or a fair copy thereof, to the collectors of the respective towns, and before doing so to annex to such roll a warrant, *785under their respective bands and seals, commanding tbem to collect from the several persons named in tbe assessment roll the several sums mentioned in the last column of such roll opposite to their respective names, (section' 36, Rev. St.,) and, finally, said board, as soon as they shall have sent or delivered to such collector such roll and warrant, are required to transmit to the county treasurer a statement containing the names of the several collectors, the amounts they are respectively to collect, and the purposes for which they are to be collected, (section 38, p. 997.)

It is quite obvious, from the chronological order in which the proceedings are directed to be taken, that the duty of computing and entering the amount of the tax upon the assessment roll is imperative. Legal validity could not be given to a warrant requiring the collector to collect the sums entered in the last column of the assessment roll when none are entered therein, nor could the board of supervisors inform the county treasurer of the aggregate amount of the tax to be collected when it had not been ascertained. Each of these directions requires a completed assessment roll, and the united action of the board of supervisors while they are still in actual session, and capable of corporate and co-operative action. *Bradley*v. *Ward, 58*N. Y., 401.

The proper assessment of a tax requires, not only the establishment of a ratio upon which the tax is to be based, but also the computation and entry in the roll of the amount of tax levied. Without this, no tax has been levied, and the board of supervisors have failed in the performance of the duty which the statute specifically enjoins upon them. Whatever clerical duty may properly be devolved upon third persons, it is clear that it can be such only as is to be performed in the presence of the board, and under their supervision : and that the duty of • passing upon the question of a corrected assessment roll, and certifying to its accuracy and completeness as a perfected roll, is a judicial duty which cannot be delegated. *Bellinger*v. *Gray,*51 N. Y., 610.

We are therefore of the opinion that the rolls for the several years 1868, ’69, and ’70, in the town of Stratford, and the warrants attached thereto, were fatally defective, and imposed no, liability upon the persons taxed. It is also equally clear that a return of the non-payment of taxes so levied conferred no authority upon the comptroller to sell the land thus taxed. *Thompson*v. *Burhans,*61 N. Y., 52; *Whitney*v. Thomas, 23 *Id.*281.

It is, however, claimed that the taxes for the respective years 1866 and 1867, having been lawfully imposed, and there having been default made in the payment thereof, the comptroller acquired jurisdiction to sell and convey such lands, although the *786sale was also made for an aggregate sum, including the illegal taxes for other years. In other words, it is claimed that the comptroller, haying in his hands unpaid reported taxes for a number of different years, some of which were legal and some invalid, can enforce the payment of the illegal taxes by taking proceedings to collect the legal ones, and that the owner of real estate can only regain possession of his property by paying a sum of money which the state has no legal right to demand. We do not think such a proposition can be supported. It appeal's that the sale • of the land in question was made by the comptroller in 1877, and was predicated upon the aggregate of the taxes thereon for all of the years from 1866 to 1870, inclusive, and that the same was bid in on such sale by the state at a gross sum sufficient to cover the entire taxes. No such sale can become perfect, so as to vest title in the purchaser, until after an opportunity has been given to the owner to redeem his land and reclaim the title. *Westbrook*v. Willey, 47 N. Y . 459; *Doughty*v. *Hope,*3 Denio, 594. By the statute in force at the time of this sale, such redemption might be made at any time within two years after the last day of sale, by paying to the state treasurer, for the use of the purchaser, the sum mentioned in the certificate of sale, with 10 per cent, interest thereon; and it was further required that the comptroller should give notice stating specifically the parcel of land unredeemed, and the amount required to redeem the same, and publish the same for six weeks in certain designated newspapers in the county, and finish such publication at least 18 weeks before the final period of redemption. This notice is said to be for the benefit of the *owners,*and no title passes until it has been properly published, and the time of redemption has expired. *Westbrook*v. *Willey, supra.*

Under our scheme of taxation,- the tax for each year is separately levied, and returned to the comptroller, and he is under no legal obligation, in making a sale of lands, to join the taxes of different years, or to sell for the aggregate sum of all of the taxes due for separate years upon such parcel of land. The necessary effect of such a joinder of taxes is, therefore, to make the payment of an illegal tax the condition of the owner’s right to retain his property, and subjeqt him, contrary to the meaning and spirit of the statute, to the payment of an unjust and illegal exaction as the price of his legal right to redeem his property. Upon the sale the purchaser is required to bid sufficient to cover all of the taxes claimed against the land, and, upon redemption, the owner is required to pay the same amount, with interest. The sale being for an entire sum, it cannot be legal beyond the amount for which the comptroller was log-ally authorized to sell the land. There can be no division of the sum payable, and no separation which can validate *787a part and reject tbe rest. It is either wholly bad or absolutely good. The invalidity of such a sale has been the subject of frequent discussion among text-writers and in the cases, and the authorities seem to be quite uniform on the subject. Burroughs, Tax’n, § 113 : Cooley, Tax’n, 345. It has been repeatedly held that a sale of land for the taxes of several years, one of which is void, is an excess of jurisdiction in the officer making the sale, and renders his proceedings void. *Moulton*v. Blaisdell, 24 Me. 283; *Wallingford*v. *Fiske,*Id. 386; *Hardenburgh*v. Kidd, 10 *Cal.*402; *Elwell*v. Shaw, 1 Greenl. 339 ; *Hall*v. Kellogg, 16 Mich. 135*; Santa Clara Co.*v. *Southern Pac. R. R.,*18 Fed. Rep. 394*; Riverside Co.*v. *Howell,*113 Ill. 256.

Many other cases might be cited from these and other states, but sufficient have been referred to to show that the doctrine stated has the support, not only of the federal courts, but also those of every state in the union, except where statutory regulations interfere. We therefore conclude that the comptroller’s deed, under which the plaintiffs sought to make claim to the lumber in question, was wholly void, and the plaintiff’s claim must fail.

The ground suggested by the appellant that the plaintiffs might still recover under their title, as having the original and ultimate property in all of the lands in the state, is quite untenable. The proof of the comptroller’s deed having, as against the state, shown that it had once parted with its original right of property, and assumed to sell the land as that of a citizen for taxes, precludes it from claiming that its original proprietorship still remains in it.

We are therefore of the opinion that the judgment should be affirmed.

All concur.