Opinion
March 6, 1912.
Merle I. St. John, for the appellants.
Thomas Carmody, Attorney-General, James A. Parsons and Valentine Taylor, for the respondent.
Relators' claim that mandamus issue is apparently based upon section 140 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), which provides that the Comptroller upon discovering that a sale of lands for unpaid taxes is for any cause invalid may cancel the sale upon receiving proof thereof and upon the application of any person interested. The statute was formerly construed as applying only to purchasers at tax sales ( People ex rel. Witte v. Roberts, 144 N.Y. 234; People ex rel. Millard v. Roberts, 8 App. Div. 219; affd., 151 N.Y. 540), but by the amendment of 1896 the application for cancellation may also be made by the owner of the lands at the time of the tax sale. (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 140; now Tax Law, § 140.) Such application is without notice to interested parties, but by section 141, as amended in 1897 (Chap. 392) and re-enacted in Tax Law of 1909, any person aggrieved may apply on notice to set aside any cancellation of sale so made. ( People ex rel. McGuinness v. Lewis, 127 App. Div. 107, 109, 110.) The Comptroller contests this appeal upon the authority of People ex rel. Sudam v. Morgan ( 45 App. Div. 19), which was a claim by the representatives of a purchaser at tax sales in 1848 and 1852 for reimbursement under section 140, on the ground of certain jurisdictional defects including a claim of indefiniteness in the description. It was there held that the obligation of the Comptroller to refund was barred by lapse of time under the provisions of article 7, section 14, of the Constitution of 1874, which are revised in article 7, section 6, of the present Constitution of 1894. The Comptroller now claims that this decision is a bar to the present application, although made not by a purchaser but by an owner, on the ground that the Comptroller would be compelled if he should cancel this tax deed to refund the moneys received on the tax sale, which refund is prohibited by the constitutional provision mentioned. But this proceeding calls for a return of no money. The deed may be held void at the instance of the owner, even though the purchaser has lost his right to reimbursement for the moneys paid. The constitutional provision creating a limitation of time in which the purchaser can obtain from the State his money does not by indirection create a limitation of the right of an owner to apply for cancellation.
The respondent further claims that the present proceedings were long since barred by section 132 of the Tax Law and the statutes from which it has been derived.
Section 132, in effect June 15, 1896, provides that all tax deeds heretofore issued by the Comptroller "and the taxes and tax sales on which they are based, shall be subject to cancellation * * * by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the Comptroller; * * * provided, however, that such application shall be made, * * * in the case of all sales held prior to the year eighteen hundred and ninety-five, within one year from June fifteenth, eighteen hundred and ninety-six." An imperfect description, as alleged by relators, in the assessment rolls sufficient to avoid the tax deed seems to fall within the class "any defect in the proceedings affecting the jurisdiction," so that any application now based thereon is barred by the statute. ( Shea v. Campbell, 71 Misc. Rep. 222, 230.) Section 132 and the statutes from which it is derived have frequently been before the courts and have been held to be both curative laws and statutes of limitations. ( Meigs v. Roberts, 162 N.Y. 371, 377, 378.) Curative acts may affect irregularities or informalities, not jurisdictional defects, but "in the operation of a statute of limitations, otherwise valid, there is no difference in its effect on jurisdictional defects or on irregularities." ( Bryan v. McGurk, 200 N.Y. 332, 335; Meigs v. Roberts, supra, 378.) "A statute of limitation to be valid must give a reasonable time after its enactment to enforce existing rights." Section 132 as applied to tax proceedings had prior to 1895 gave the owner one year from the date of its enactment in which to enforce his rights on account of jurisdictional defects in the proceedings and is, therefore, a valid statute of limitations. ( Bryan v. McGurk, supra, 338.) It follows that in the case at bar the relators, not having within the year limited by law instituted proceedings for cancellation of the tax sale and deed on account of the alleged imperfect description in the assessment rolls, are now barred from attempting such cancellation upon the ground mentioned. But this argument assumes the invalidity of the assessment. The assessment roll is not in the record. The allegation of insufficiency in the petition states no facts and is only allegation of a legal conclusion. The description of the property in the assessment roll cannot even be presumed to be the same as in the deed. Section 132 of the Tax Law creates a presumption of sufficiency and in the case at bar a conclusive presumption.
The further question remains, however, whether relators may now apply to cancel the tax sale upon the ground that the description in the tax deed is imperfect under the broader classification stated in section 140, "that the sale was for any cause invalid or ineffectual to give title to the lands sold." If, as claimed, the tax deed does not sufficiently describe any tract of land the sale represented by such tax deed is obviously invalid and conveys no rights whatever. This would seem to be a situation not covered by section 132, but one which may be attacked at any time under section 140, which specifies no period of limitation within which application for cancellation may be made. Is the description in this tax deed insufficient? The test in tax titles is "whether the description is sufficiently definite to enable the owner and all persons interested to know and ascertain, by inquiry at the appropriate office or examination of the assessment roll, what premises are assessed and to identify them, with reasonable certainty, so that it may be fairly said that a particular tract or parcel of land is the parcel or tract assessed and to which the purchaser on the tax sale is entitled to possession." ( Hennepin Improvement Company v. Schuster, 66 Misc. Rep. 634, 648, 649; Shea v. Campbell, supra, 230; Cone v. Lauer, 131 App. Div. 193.) The description in the tax deed here is one-fourth acre of land in the county of Westchester "being lot No. 66 in the Village of Unionport." The relators' claim is that no particular map or tract is mentioned or referred to, so that "lot No. 66" was incapable of ascertainment, and this description consequently failed to give proper notice to the then owner of the premises sold. The deed that relators stand on is no more definite as to metes and bounds than the one they question, but their deed does refer "lot No. 66" to a certain described map presumably capable of identification. Does the fact that the tax deed contains no such reference in connection with "lot No. 66" render this deed invalid? The petition itself shows that there is a definite map on file in the county clerk's office upon which this lot is numbered "66." It is not probable that there are other maps on file with numbered lots which could cause confusion. If such a state of facts does exist it would seem to be for the petitioner to so show. The test of sufficiency of the description in this deed is the same as in the case of ordinary deeds. Under such a description with one map only recorded in the county clerk's office with numbered lots according to which sales were ordinarily made, I think the grantee would be deemed a record owner of the title. The description on its face uncertain is made certain by extraneous facts.
Nor do we think that our views as expressed are in conflict with the decision in the case of People ex rel. National Park Bank v. Metz ( 141 App. Div. 600), upon which the relators rely. That was an application for a writ of mandamus made by an owner of lands in the borough of the Bronx, formerly in the town of Westchester, to compel the comptroller of the city of New York and the collector of assessments and arrears of the same city to accept payment of a void tax and to cancel the sale based thereon. The sale was made in 1889 by the town supervisor, but it did not appear that any tax lease had been issued to the purchaser upon the sale. The sale having been made by the town supervisor is not protected by section 132 of the Tax Law, nor did the lease then considered come within the section. ( Matter of Ritter Place, 139 App. Div. 473.) The question there considered was the validity of the assessment roll, which is the subject of strict statutory direction. The rule for the construction of deeds was not discussed or decided. The decision, therefore, is not helpful in determining the questions here presented.
The order appealed from should be affirmed, and the motion denied, with costs to respondent.
Order unanimously affirmed, with costs.