Summary
In Zink v. McManus, 121 N.Y. 259, the description contained in the assessment in question was as follows: "feet front 872, feet deep 290, N. line, name of street Military R, side E. Feet 918.60, course N. Street Hertel Avenue.
Summary of this case from McInnis v. City of New RochelleOpinion
Argued April 16, 1890
Decided April 29, 1890
LeRoy Parker for appellants. Moses Shire for respondent.
This is an action of ejectment brought to recover certain lands in the city of Buffalo. The plaintiff proved title to the premises described in the complaint under a deed executed to him in 1874, by the owners of the lands, and this entitled him to recover, unless his title was subsequently divested by proceedings for the sale of the lands for taxes.
The defendant claimed to have obtained title under a deed from the comptroller of the city of Buffalo, dated May 25, 1886, which recites that in 1883, the land was assessed for taxes which remained unpaid, and that proceedings were instituted under the statute for the sale of the same; and that it was duly advertised and sold for the taxes levied for that year to the defendant, and that it had not been redeemed by the plaintiff.
Under the statute prescribing the proceedings for the sale of land for unpaid taxes in the city of Buffalo this deed is made conclusive evidence of the regularity of the sale, and presumptive evidence that all previous proceedings were regular according to law and the provisions of the act. (Laws of 1880, chap. 275, §§ 8, 9.)
It appears that the lands in question were not assessed to the plaintiff, although he was the actual owner, but to other parties for the reason that about the year 1876, the plaintiff executed and acknowledged a deed of the premises in form, conveying them to P. and J. Zimmerman. This deed, however, was never actually delivered to the grantees named therein; but under the provisions of the charter of the city of Buffalo, requiring the assessors to note upon every deed of lands in the city presented to them the fact of such presentation, and prohibiting the county clerk from recording any deed which shall not have been so marked by the assessors, under a penalty of ten dollars, the deed after execution and acknowledgment was presented to the assessors, stamped by them as required by the statute, and the names of the grantees mentioned in the deed entered upon a map kept by the assessors; and thereafter, although the deed never became operative as a conveyance of the land, the premises were assessed to the Zimmermans.
On the trial of the action the court directed a verdict for the defendant, holding that the title to the premises had become vested in her under the comptroller's deed. Upon appeal to the General Term this judgment was reversed upon the ground, as appears by the opinion, that the assessment not having been made against the plaintiff, who was the true owner of the lands, was invalid, and all subsequent proceedings for the sale of the lands were unauthorized and void.
If the sale and conveyance of the lands to the defendant by the comptroller were in other respects valid, we should hesitate to hold that the assessment was made without jurisdiction. The lands were assessed to the Zimmermans because the plaintiff, under the provisions of the statute, caused to be delivered to the assessors a deed in which they were named as grantees, and the assessors thereupon treated the deed as operating to change the title, and thereafter, without any notice or objection from the plaintiff, or anyone else, they continued to assess the lands to the Zimmermans. We think that when the owner of real property, under such circumstances, and in view of the statute applicable to the city of Buffalo, procures it to be assessed to other persons, he cannot be permitted to claim that the assessment is invalid because the assessors acted upon the information thus given to them, and assessed the land to the persons who appeared as grantees in the deed.
It is not necessary, however, to pass upon that question in this case, as we are of opinion that the conveyance by the comptroller to the defendant is fatally defective for other reasons.
The lands to which the plaintiff proved title, and which he sought to recover in the action, are described in the complaint as follows:
"All that certain piece or parcel of land situate, lying and being in the city of Buffalo, county of Erie, aforesaid, and state of New York, bounded and described as follows:
"Beginning at stake in the New York State Reservation line distant one hundred and thirty-nine (139) feet southerly from a stake set at a point where the northerly line of William A. Bird's farm intersects the New York State Reservation line; thence running westerly two hundred and ninety-seven (297) feet to a stake set thirty-three (33) feet southerly from the point at which the northerly line of William A. Bird's farm crosses the northerly line of the Military road; thence running southerly along said road eight hundred and seventy-two (872) feet to a stake; thence running easterly and at right angles with the said Military road, four hundred four and eighty-eight hundredths (404 88/100) feet to the New York State Reservation line; thence running northerly on said reservation line, nine hundred fifty-nine and five-tenths (959 5/10) feet to the place of beginning."
This land was not described or sufficiently identified by the entry actually made upon the assessment-rolls, or in the advertisement of sale, the notice to redeem, or the conveyance itself. The only description contained in the assessment-rolls, the notice of sale and of redemption, is as follows:
=============================================================================================================== "No. | To Whom | Block | Feet | Feet | Name | | | | | of | Assessed. | or | Front. | Deep. | of | Side. | Feet. | Course | Street. | Tax. | | Lot. | | | Street. | | | | | --------------------------------------------------------------------------------------------------------------- | Jos. and Peter | Bird | | 290 | Military | | | | Hertel | 31363 | Zimmerman. | Farm | 872 | N. | R. | E. | 918.60 | N. | Ave. | $24.07" | | | | Line. | | | | | | =============================================================================================================== In the conveyance by the comptroller to the defendant the only description is the following:"And whereas, the said party of the second part became entitled, by assignment of the certificate issued at such sale, to the following parcel of land in the Twelfth ward of the city of Buffalo, to wit: Part of Bird farm, eight hundred and seventy-two (872) feet front, two hundred and ninety (290) feet north line deep, on the easterly side of Military road, commencing nine hundred and eighteen and sixty one-hundredths (918 60/100) feet northerly from Hertel avenue."
It was the duty of the assessors to designate or describe the land "by boundaries, or in some other way by which it may be known." (1 R.S. title 2, part 1, chap. 13, art. 2.) When we compare the description in the comptroller's conveyance to the defendant with that contained in the complaint, it is plain that they do not agree, and that no sufficient words or suggestion is contained in the former identifying or calling attention to the latter. A reasonably accurate designation or description of the land assessed and sold is necessary in order to give validity and effect to the conveyance. There are but two boundary lines contained in the description of the lands in the comptroller's deed. No land is actually inclosed by it. It is impossible, from the description, to ascertain the form or shape of the lot or how far, either to the west or to the south its actual boundaries extend. It is impossible, as it seems to us, to locate or identify the lands thus described with any degree of certainty. We are, therefore, of opinion that under the rules applicable to the assessment and sale of land for taxes, the defendants' deed from the comptroller was void for uncertainty. ( In re N.Y.C. H.R.R.R. Co., 70 N.Y. 191; 90 id. 342, 349; Dike v. Lewis, 4 Den. 237; Hill v. Mowry, 6 Gray, 551; Tallman v. White, 2 N.Y. 66, 72; Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, id. 92.)
It would be difficult, even in a conveyance between individuals, to hold that the description contained in the comptroller's deed embraces or sufficiently identifies the land described in the complaint. In proceedings in invitum, where public officers undertake to convey, under statutory power, the property of individuals, such a description is fatally defective.
It is provided by the charter of the city of Buffalo that any action or proceeding to test the validity or regularity of a tax or assessment, shall be commenced within one year from the time of the delivery of the roll, in which said tax or assessment is contained, to the treasurer. It is urged on behalf of the defendant that this statute bars the plaintiff's right to maintain this action. We are of opinion, however, that this statute has no application to an action of ejectment brought by the true owner to recover lands from a person in possession and claiming under a void conveyance from the city authorities, based upon an assessment and sale without jurisdiction.
The order of the General Term reversing the judgment of the trial court should, therefore, be affirmed and judgment absolute directed for the plaintiff, with costs.
All concur.
Order affirmed and judgment accordingly.