Citation Numbers: 31 N.Y.S. 565, 82 Hun 360, 89 N.Y. Sup. Ct. 360, 64 N.Y. St. Rep. 155
Judges: Mayham
Filed Date: 12/4/1894
Status: Precedential
Modified Date: 1/13/2023
The plaintiff sued the defendant for the alleged conversion of a cow and wagon, of which she claimed to be the owner, and replevies the property, and, the same not being reclaimed by the defendant, the sheriff delivered the possession to the plaintiff. The defendant, in his answer, sought to justify the taking of the property under a warrant for the collection of taxes, issued to him as collector of taxes for the village of Port Plain. The tax roll and warrant were put in evidence, and directed the defendant, as collector, to collect from the persons therein named the several sums set opposite their respective names on the last column on such roll. ■ On such roll was a tax assessed against Fidelia Waddell, as executrix of the last will of Hannah W. Kellogg, deceased, for real and personal estate, which tax amounted to the sum of $82.97, to collect which, as the evidence tended to show, the defendant levied upon the property in dispute in this action. The defendant never reduced the property to his actual possession, but, while the same was constructively under such levy, the plaintiff replevied the same. The evidence shows that the defendant had, at a previous year in which he acted as collector, levied upon the same property on a tax against the same party, and sold the same in satisfaction for such tax, and that, the property was bid off on such sale by one George Hawn at the request of Mrs. Waddell, and was, with other property, by him sold to the plaintiff under a written bill of sale, which was put in evidence on this trial. The evidence also tended to show that the real estate of which Mrs. Waddell’s testator died seised—the land for which this tax was in part assessed and levied—was in the joint possession of the executrix and a tenant of such executrix, who was working the same under contract with -her on shares, and that such executrix resided upon a portion of such premises, and that the property in dispute in this action was, at the time of the levy by the defendant on such premises, in the possession of such tenant or such executrix, or both. This evidence, or some of it, was disputed by the evidence on the part of the plaintiff; but it seems conceded that the executrix was the owner of this land, either in her own right or as executrix, so that the occupancy and possession by the tenant working such farm on shares, was the occupancy and possession of the executrix for the purpose of the collection of taxes assessed against the executrix upon such lands. Taylor v. Bradley, 39 N. Y. 129. The possession of. the farm under such an agreement is so far joint that one cannot maintain trespass against the other. Decker v. Decker, 17 Hun, 13. It would seem, therefore, that under the circumstances of this- case it was a question of fact
We cannot agree with the contention of the appellant that a demand by the plaintiff of this property was a prerequisite to maintaining an action for these goods. If they were liable for this tax, no demand would relieve them from that liability. If they were not, then the defendant was liable for the original wrongful taking, and replevin in cepit would lie. ¡Nor can we agree that the sale of these chattels for a former tax by this defendant is an estoppel as against him. That sale was not directly from the defendant to this plaintiff, but to George Hawn, a son of one of the occupants of Waddell’s premises. It does not appear that the defendant had any knowledge of a sale by Hawn to the plaintiff. We think the learned judge erred in taking the case from the jury, and that he should, as requested by the defendant, have submitted the question of the ownership by, and of possession in, Mrs. Waddell, under proper instructions, to the jury. Judgment reversed, and a new trial granted; costs to abide the event. All concur.