Opinion
December, 1904.
Robert F. Livingston, for the appellant.
George W. Ward, for the respondent.
This is an action in equity, brought to restrain the removal of certain logs and timber from lands belonging to plaintiff, who claims under a tax title.
Plaintiff received a certificate of sale December 10, 1900, and his tax deed January 23, 1902.
The owners of the premises at the time of sale in December, 1900, were John Kreig, Henry Merz and Henry Freygang, as executors, etc. On December 6, 1900, said owners entered into an agreement with the defendant Breckwoldt by which said Breckwoldt was given the right to cut and remove timber from the premises for the term of three years at a stipulated price of two dollars per thousand stumpage, but not less than two hundred dollars in any year, and the further privilege of purchasing said premises within three years at a price of five thousand dollars.
Defendant Breckwoldt had no notice or knowledge of either non-payment of tax, the advertisement of sale nor the sale of the premises prior to the commencement of this action. No notice prohibiting the despoliation of the lands, as specified in section 129 of the Tax Law (Laws of 1896, chap. 908), was ever served. The amount of the plaintiff's bid at the tax sale was thirty-six dollars and seventy-six cents. The first notice of the tax sale and of plaintiff's purchase received by any of the defendants was the bringing of this action on February 17, 1902.
At the time plaintiff received his deed (January 23, 1902) there were certain logs and timber upon the premises which had been cut and piled prior to the delivery of the deed by the defendant Breckwoldt or those under him under the agreement with the owners. The plaintiff obtained an injunction pendente lite, restraining the defendants from removing any of the timber or logs from the premises. The trial court dissolved the preliminary injunction and restrained only further cutting of timber, holding that defendant had a right to remove such timber as had been cut before plaintiff obtained his deed. It did not appear that defendant threatened or intended to cut any more timber.
We think the judgment of the trial court was right.
The purchaser at a tax sale has, during the period allowed for redemption, no estate in the land. He has consequently no constructive possession of the premises and no right to go upon them or to make use of them. His entry upon the premises would be a trespass upon the possession actual or constructive of the owner, who might recover against him for any injury committed. (Cooley Taxn. [2d ed.] 542.)
It follows that the owner still having the legal title and being entitled to possession of the premises, is entitled to the full enjoyment of the land and all rents and profits accruing. It is his right to cut and remove timber and generally to exercise all rights incident to ownership, and this right continues until the time for redeeming the land has fully expired. A tax title claimant cannot, therefore, maintain an action to recover the possession of timber cut on the land before the issuing of a tax deed. (Black Tax Tit. [2d ed.] § 324, and cases cited.)
The purchaser before receiving his deed has a lien for the payment of the purchase money and the interest. (Black Tax Tit. supra.)
There are other features of this case which justify the judgment of the trial court. A court of equity will not impair the right of an owner to the enjoyment of his property further than may be necessary to protect the rights of the parties. The plaintiff, until he received his deed, had a lien for thirty-six dollars and seventy-six cents and interest; there is no evidence that he was not amply secured, notwithstanding the cutting of the timber. He has bought for an almost nominal consideration a tract of land for which defendant Breckwoldt was under the agreement to pay $5,000, if he purchased. In the absence of proof showing injury to plaintiff's lien, a court of equity ought not to destroy the property of defendant and turn over to plaintiff a large amount of property for which defendant has paid several hundreds of dollars. It does not appear that plaintiff has suffered any injury. He fails to show equities.
Plaintiff cites section 129 of the Tax Law. We think he is not in position to avail himself of that section. The section evidently contemplates that an owner, or another who has notice of a purchase by another shall not be permitted to despoil the land. It is not intended to interfere with the usual enjoyment or the reasonable use of the land. It further contemplates a fair notice to the owner that his land has been sold for taxes and if then he shall persist in despoiling the land he may be restrained. It can have no application to the case at bar, for neither the owner nor the defendants had any notice of the sale and plaintiff waited until the time for redemption had expired before any intimation was given to any party interested that he had or claimed any interest in the premises. Section 129 of the Tax Law requires the notice as a prerequisite to the maintenance of an action.
The trial court awarded costs to defendant Breckwoldt. Plaintiff was not entitled to enjoin the removal of the timber and the injunction was not necessary to prevent further cutting by defendant, as the court has found that he did not intend to violate plaintiff's right and the action was unnecessary.
The judgment of the trial court was right and should be affirmed.
All concurred.
That portion of judgment appealed from affirmed, with costs.