Howell v. Rowe

Kelby, J.

The plaintiff is in possession of certain premises situated in G-reenport, Suff olk county, against the defendants, the widow and daughter of Thomas,, Howe, who died in 1864, seized of the property in fee simple. He holds under a tax title based on an assessment for the year 1879. The sale was in 1885. A deed was delivered by the county treasurer in 1886, and then recorded. The issue is the validity of such title. While the lands were taxable, the assessors had no jurisdiction of the person of nonresident owners, and, by the inclusion of the name of the widow as a nonresident, there was an attempted personal assessment. Plaintiff expressly concedes, in his brief, that in this respect this assessment was similar to that condemned in Sanders v. Downs, 141 N. Y. 422. He furthermore does not question the proof that there was no return of the tax as unpaid to the county treasurer. This was a jurisdictional defect. Thompson v. Burnhans, 61 N. Y. 63. So, also, was the inclusion of three lots in a single assessment. French v. Whittlesey, 30 N. Y. Supp. 363. To overcome this, reliance is placed upon chapter 422, Laws of 1885, as a statute of limitations, which it has been held to be. People v. Turner, 117 N. Y. 227. The operation of this statute was, by chapter 217, Laws of 1891, extended to all the counties in this state, except Cattaraugus and Chautauqua, and it fixed a limitation of six months, from the time of its passage, for the purpose of vacating any tax sale, or any conveyance or certificate of sale made thereunder. This period of time has been held to be reasonable. Halsted v. Silberstein, 196 N. Y. 1. No action to cancel the present tax deed was begun until the service of the answer, in April, 1913, containing a counterclaim for that relief. The defendants contend that the statutes of 1885 and 1891, above referred to, are not to be considered because they were repealed by the enactment of section 132 of the Tax Law of 1896, and this latter, it is pointed out, has been held to be ineffective to cure or protect a deed upon a sale for which there; was lacking the fundamental basis of a verified return of an unpaid tax. Wallace v. McEchron, 176 N. Y. 427. That the enactment of the Tax Law did repeal the earlier statutes has been definitely settled since this case was submitted. Petersen v. Martino, 210 N. Y. 412. But the proposition that, therefore, the earlier statutes are not to be considered is not correct. There is a distinction, as to the effect of repeal, between, statutory bars, such as supplied by the acts of 1885 and 1891, operating to invest persons with property, and statutory bars, such as was involved in Hulbert v. Clark, 128 N. Y. 295, operating merely as a defense to personal demands. As to the latter, the legislature may, by repeal even after the right of action is barred, restore the remedy, but as to the former, the rule is directly to the contrary. Campbell v. Holt, 115 U. S. 620. See, also, oases cited 25 Cyc. 989. Within thi-s distinction, the repeal of the earlier statutes, by the enactment of the Tax Law, did not interfere with the rights of the plaintiff which had become vested and fixed by virtue of the earlier statutes prior to that time. Hennepin Improvement Co. v. Schuster, 66 Misc. Rep. 634, 647 ; affd., 150 App. Div. 12. See, also, Olmstead v. Roberts, 69 Misc. Rep. 641, 645. It follows that there must be a judgment for the plaintiff.

Judgment for plaintiff.