Witherhead v. Ort

Hinman, J.

This action was brought to set aside two mortgages owned by the respondent as clouds on the appellant’s title to about eighty acres of farm land in the town of Johnstown, county of Fulton in this State.

On November 18, 1914, Minnie A. Witherhead gave to the appellant a warranty deed of this property which was duly recorded in the Fulton county clerk’s office on January 12,1915. In December, 1920, the State Comptroller sold said property for non-payment of taxes levied prior to the year 1916. The sale was made to Fay C. Baker of Gloversville. On the assessment roll for 1915 the prop, erty appeared in the names of George H. and Minnie A. Witherhead. The year given by statute (Tax Law, § 127) for the redemption of the property from said sale expired December 22,1921. Within the year from the expiration of the time to redeem, it seems that Baker served notice of the tax sale on George H. Witherhead. No notice was served on the appellant. There having been no redemption, the State Comptroller deeded the premises to Fay C. Baker. Baker conveyed the land to one Alfred Allen, On March 3, 1924, Allen executed a mortgage on the land for $1,000 to the respondent and on May 16, 1924, another mortgage of $1,350 to the respondent. The appellant contends that the tax title was defective, in that the land was assessed to George H. Witherhead and Minnie A. Witherhead, instead of to Peter H. Witherhead, the appellant herein, and also because no notice of the tax sale was served on the appellant as “ occupant ” of the premises as required by section 134 of the Tax Law. Thus the appellant urges that Allen obtained no title and that the mortgages given by him were clouds on the appellant’s title which the court should direct to be removed.

Assuming that the appellant held the record title to the property at the time of the assessment, which does not clearly appear, the tax sale was valid even though the property was assessed to George H. and Minnie A. Witherhead. “ In all cases the assessment shall be deemed as against the real property itself, and the property itself shall be holden and liable to sale for any tax levied upon it.” (Tax Law, § 9, as amd. by Laws of 1911, chap. 315; re-enacted as amd. by Laws of 1916, chap. 323.) “ The entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll.” (Tax Law, § 55-a, as renum. re-enacted and amd. by Laws of 1916, chap. 323, being formerly § 63, as amd. by Laws of 1911, chap. 315. See, also, Smith v. Russell, 172 App. Div. 793, 797.)

The tax deed to Baker is made, by the statute, “ presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions of law relating thereto.” (Tax Law, § 131.) The burden of proof was on the appellant to show that the land was “ occupied ” and that he was the person upon whom, as “ occupant,” it was necessary to serve notice of the tax sale, pursuant to section 134 of the Tax Law. (Wells v. Johnston, 55 App. Div. 484, 486; Cary v. Given, 144 id. 221, 224.) Said section 134 provides that if any lot or separate tract of land sold for taxes shall, “ at the time of the expiration of one year given for the redemption thereof, be in the actual occupancy of any person,” the grantee shall serve a written notice on the person occupying such land.

The year for redemption in this case expired December 22, 1921. The appellant resided on a farm near Ogdensburg, about 170 miles distant from the property. He testified that he visited the farm in question in 1916 and again in 1923, Apparently he never lived there and he was not upon the farm at all during 1921, nor in fact during the period from 1916 to 1923. He would not say that anybody was on the farm during 1921. He did not know whether it was cultivated between 1917 and 1923. He did not engage anybody to look after the farm during that period. So far as he knew nobody looked after it during that period unless his brother, George H. Witherhead, did, and there is no proof that George, who lived at Gloversville, a short distance from the property, did. The appellant had had some trouble with his brother George in relation to the property and he had told George he did not want him to look after the farm. He could not get any revenue from the farm and apparently abandoned it. The respondent, who was the only other witness, testified that he lived three or four miles away from the property in question “ across the country ” and occasionally drove past it. He could not remember “ for sure ” whether the house was vacant in 1921 but did not know of any one living at the farm.

The proof falls far short of establishing that the appellant was the “ occupant ” of the farm and entitled to written notice to redeem. Indeed there is a lack of proof that the farm was occupied at all at the time of the expiration of the redemption year or for years prior or subsequent thereto. The term “ occupant,” as defined in section 134 of the Tax Law, means “ a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person.” And, as defined by the same section, the term “ occupancy ” means “ the actual lawful and exclusive use and possession of such lands and premises by such an occupant.” Moreover, by a long line of decisions an “ occupant ” under the Tax Law has been held to be one who has been in “ actual possession as distinguished from legal possession.” (People ex rel. Turner v. Kelsey, 96 App. Div. 148, 149; revd., on other grounds, 180 N. Y. 24.) The appellant contends, however, that section 134 of the Tax Law has been amended since the facts arose which were involved in the decision in People ex rel. Turner v. Kelsey (supra) and cases cited therein, and refers to Laws of 1902, chapter 171 (amdg. Tax Law of 1896, § 134), by which the following provision was added to said section and continued in section 134 of the present Tax Law as follows: “ If the occupant does not reside in the tax district in which the real estate is situated the notice may be served by mail in the manner required by law in respect to notices of nonacceptance or nonpayment of notes or bills of exchange. Service on one joint tenant or tenant in common shall be service on all the joint tenants or tenants in common. Service on a tenant shall be service on his landlord.” We need not make a comprehensive interpretation of the legislative intent in including in the term “ occupant ” one who is not a resident of the tax district in which the property is situated. It is sufficient to note that “ odcupancy ” is nevertheless required and it must be “ actual occupancy.” The section was not amended in that particular. If there is actual occupancy either through agent, employee or tenant, or by a joint tenant or tenant in common, a fact readily ascertainable upon the premises, there exists no difficulty in giving the proper notice under the statute. In such a case the statute prescribes that “ notice may be served by mail ” upon the non-resident owner. In the case at bar the appellant has wholly faded to prove that the land was in fact occupied by anybody “ at the time of the expiration of one year given for the redemption.” Therefore, he has failed to prove the necessity of serving any one.

During the trial the appellant offered in evidence judgment rolls in certain ejectment actions which he had brought against Alfred Allen and certain grantees of Allen, involving the premises in question. The appellant had been permitted to enter judgment in his favor in each of these actions, upon stipulation and without trial. The respondent Ort was not a party to any of these actions and there is no proof that he knew anything about them. The judgments in such actions do not bind the respondent and cannot avail to cut off his rights as the bona fide holder of mortgages for value executed prior to such ejectment proceedings.

The appellant has not raised any other issue upon this appeal except the refusal of the court to make certain findings in conformity with the contentions of the appellant already considered. The requested findings were properly refused and the dismissal of the complaint was properly ordered.

The judgment should be affirmed, with costs.

Van Kirk, P. J., and Whitmyer, J., concur; Davis, J., dissents with an opinion in which Hill, J., concurs.