Opinion
Argued June 16, 1875
Decided June 25, 1875
D.H. Bolles for the appellant.
H.E. Sickels and M.B. Champlain for the respondents.
The action was brought to procure a decree declaring void a deed executed by the comptroller of the State to one Marsh on the 19th day of December, 1868, upon a sale of a lot of land for unpaid taxes, and to require the defendants, who claim title under said Marsh, to convey the premises to the plaintiff. Various objections are urged to the title of the defendants, all of which relate to the regularity of the proceedings by virtue of which the land was sold for taxes, and conveyed by the comptroller. By law (S.L. of 1855, ch. 427, § 65), the comptroller's deed for land sold for taxes is made "presumptive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land," etc., were regular, and in accordance with the law. The party assailing them, therefore, is bound to establish, by sufficient and satisfactory legal evidence, the illegality or defect which vitiates and renders them nugatory and void. The objections urged must be considered, having in view the principle referred to.
In regard to the tax roll of 1856 of the town of Portville, it is insisted that it was void, because of a failure to comply with the statute in regard to the highway tax. The first objection is, that the notice to non-residents which is required by the statute (1 R.S., 509, § 34), to be posted by the overseers of highways was not affixed to the outer door of the building where the last preceding town meeting was held. The judge found that the said notice was affixed as the law requires, and I think that the finding was justified by the evidence.
The tax was laid seventeen years before the trial, and every presumption is in favor of the fact that the statutory provision was complied with, and that the officer performed his duty. The testimony of the overseer, to the effect that he does not remember whether or not he posted the notice in the year 1856, and the circumstances which he states as to his posting a notice one year at the town hall during the several years in which he filled the office, does not establish affirmatively that no such notice was posted. Nor is the fact made out by proof, that search had been made at the town clerk's office, and with the clerk of the board of supervisors, which failed to disclose any such notice for the year last named. Equally unreliable and uncertain is the testimony of the former owner of the premises, that during that year he inquired and looked for said notice, and failed to find it, or to learn that it had been posted. After so long a period of time had transpired, with changes of public officials having charge of such papers, it is not remarkable that no notice could be found, and it would have been unsafe to rely upon either the want of recollection of the overseer, as to posting the notice, or the uncertain and indefinite evidence which failed to establish a neglect to do so. As the testimony stood, with no affirmative testimony to establish the alleged defect, the judge was not authorized to find that the officer had neglected his duty in this respect. Nor is there sufficient evidence to establish that no list of non-resident lands was made out by the overseer, delivered to the supervisor of the town, and by him laid before the board of supervisors, as the statute requires. (1 R.S., 5, 11, §§ 47-50.)
It is further insisted, that the comptroller's sale was void, in respect to the general tax carried out, in the non-resident part of the roll of 1856. It is said that this part of the roll is not verified by the assessors because the affidavit precedes the non-resident assessments, and merely verifies the "foregoing roll." The statute (S.L. of 1851, chap. 176, § 8) provides, that when the assessors, or a majority of them, shall have completed their roll, they shall appear before one of the justices of the peace, of the town or city in which they shall reside, subscribe an oath in the form therein stated, and in which they are required, among other things, to swear that they have "set down in the foregoing assessment roll, all the real estate situated in the town," thus including the lands of non-residents as well as others. It also provides, that "the oath shall be written on said roll," without designating the particular part of the roll in which it shall be thus written. It would seem to be sufficient, if it was anywhere upon the roll, unless it is apparent that it did not cover the entire list. There is no proof whatever, and no claim made, that the assessment roll as made out, signed and sworn to by the assessors, did not contain the lands of non-residents, and as the affidavit shows it covered all the real estate in the town, it was within the statute. Such is the legal presumption unless we assume that the assessors swore falsely, which is unwarranted by the facts presented. Without proof that the non-resident names were added afterwards, it must be presumed, I think, that the verification was of the entire roll, and that the statute was literally and substantially complied with.
The roll is said to be defective, because it was made up and verified by two of the assessors, and does not contain a certificate stating the fact and the reason thereof.
The statute, in case of the neglect of any assessor, from any cause, to perform his duties, authorizes the other assessors to do so, and they are required to certify with the assessment roll the name of the delinquent, and the cause of the omission. (1 R.S., 394, § 30.) There is no doubt of the authority of the two to act where a third one neglects to do so. The form of the assessors' oath by statute, does not include any such certificate as is provided for by section 30, and the statute of 1851 (§ 8, supra), shows, I think, that the oath therein stated was all which the law required to make the roll complete and perfect for the purpose of assessing and collecting the tax. It was intended no doubt as a substitute for 1 Revised Statutes, 393, section 26, which provided the form of an official certificate for the assessors, and which was followed by section 29, which imposed a penalty upon an assessor for a willful refusal or neglect to perform his duty. The certificate, therefore, of the delinquency was not then necessarily a part of the assessment roll, but to be furnished "with their assessment roll." It was not a portion of the official oath of the assessors, but a separate and distinct statement, which the statute does not require shall be verified, or in any way form a part of the verification required by the act of 1851. It would be adding to the oath provided for, to insert therein a certificate of the delinquency of an assessor. But independent of the considerations suggested, it is apparent that the object of the legislature in enacting the provision cited, was to furnish evidence of the nature of the neglect or omission, so that if a proper case was made out, the delinquent could be brought to punishment. This is made manifest by subsequent provisions of the statute (1 R.S., 419, § 2), by which boards of supervisors are required, at every annual meeting, to transmit to the comptroller of the State the names and places of abode of assessors, who have "willfully refused or neglected to perform the duties required of them." In Bellinger v. Gray ( 51 N.Y., 610), which is relied upon by the appellant's counsel, the question now raised was not decided, and the case was disposed of on another ground.
It is said that the affidavit was defective for want of a venue, and because it does not appear that the so-called justice, by whom the oath was administered, was a justice of the peace of the town. The paper signed by the assessors was not an affidavit but an oath, the form of which was prescribed by the statute. There is nothing in the statute which requires a venue; and if there was, as the oath was affixed, as the case shows, to the assessment roll of the town of Portville, it is to be assumed that the preliminary statement not only stated the town but the county in which the lands were located. As nothing to the contrary was proved, the legitimate inference is that it was made and subscribed before a justice of the peace of the town, in accordance with the provisions of the statute.
Objections are also urged to the roll of 1858, in regard to the non-resident tax upon the lot in question. First, it is said that it fails to designate the tract in which the land is situated. There is, I think, no ground for this objection. The Revised Statutes (vol. 1, § 12, p. —) declare that "if the land to be assessed be a tract which is subdivided into lots, or be part of a tract which is so subdivided, the assessors * * * shall designate it by its name, if known by one," etc. The intention of the statute was that the assessment should contain a true designation or description of the land, so that the purchasers at the sale might be able to find and locate the same, and that the owner might know that his land was advertised. ( Tallman v. White, 2 Comst., 70.) The lot in question was a "part of a tract" which had been subdivided. It appears from the statute (Laws of 1837, chap. 268) that the town of Portville was a part of the territory of the Holland land purchase, and it is recognized in the public statutes of the State that this tract is divided into townships and ranges, and then subdivided into lots, which are numbered. By giving the known name of the part which is divided into lots the spirit and intent of the statute is fully carried out. The designation of this lot as "number fifty-four, town one, range three, acres 150," is a statement of all that the law requires, and furnishes full information to all parties interested as to the lot intended to be assessed. In Dike v. Lewis (2 Barb., 347) CADY, P.J., says, that "the number of the lot is the only designation which, by law, is made necessary, as to lands not occupied." It appears that there were two townships of land in the Holland purchase, in Portville; and there could be no mistake, I think, as to what lot was intended. There is nothing in the cases cited by the appellant in conflict with these views. Second. It is further said as to the tax of 1858, that the entire non-resident part of the roll was not made by the assessors and the board of supervisors, but by the supervisor of the town. It appears, and is found by the court, that at a meeting of the board of supervisors the tax was levied and carried out, but after the board adjourned, the supervisor of the town took from the roll the leaves upon which the non-resident lands and taxes had been placed, and copies of the same made by him were incorporated into the roll in their place. By statute (1 R.S., 395, § 36) the board are required to cause the corrected assessment roll of the town, or a fair copy thereof, to be delivered to the collector. The testimony is not very clear as to the time when the copying was done, and the supervisor who was sworn is not very positive on the subject. It appears to have been done, because the leaves taken out had become defaced. It is a fair presumption that the assessment roll was delivered to the supervisor of the town to copy the whole, or such part thereof as might be necessary to make it legible; and because a portion only was copied instead of the whole, it does not vitiate the entire roll. The statute (§ 37) does not require the warrant to be annexed by the board; and it was not a fatal defect because a part of the roll was copied. In Bellinger v. Gray ( supra) the supervisor inserted the figures as to the corrected valuation, total amount of property and the amount of tax, after the roll had been fully completed and the board had finally adjourned; and that case is not in point.
The objection that the returns of the collector as to this land in the years 1856, 1858 and 1860, are in excess of the taxes carried out, is not, I think, well founded. By section 16, chapter 455 Laws of 1847, the collector is authorized to add five per cent to the sums returned by him, "which shall go to the credit of the county, and be collected with said unpaid taxes." This constitutes the alleged excess, and was properly added under the statute cited. A point is made that this provision does not apply to taxes on lands of non-residents, but after a careful examination, I see no reason why it is not applicable. It is broad enough to cover all taxes, and neither the act of 1845, which was amended by the act of 1847, nor the Revised Statutes, volume 1, 397, 398, sections 1, 2, 3 and 4, and page 399, section 10, are inconsistent with section 16 of the act of 1847.
These provisions may all be carried out in harmony, and there is no valid reason why an owner of non-resident land should be exempted from the payment of the five per cent. more than any other delinquent. The right to add the five per cent. is also recognized. ( Overing v. Foote, 43 N.Y., 290.) Whether it is commingled with the tax itself, or made a separate item cannot affect its legality, so long as the amount does not exceed what the law authorizes.
It is further insisted that the sums added were, in two instances, in excess of the five per cent, in one instance three cents too much, and in the other four cents. This is a very trifling variance, and cannot affect the proceedings. The maxim applies " De minimis non curat lex."
The certificates of the county treasurer, transmitted to the comptroller, are also objected to as not being in compliance with the statute. (S.L. of 1858, 781 and 782, § 4.) The answer to this position is: 1st. That the statute does not require that the certificate to be made and signed, when the collector returns his account, should be transmitted to the comptroller, and for anything that is proved, it may have been made. 2d. That the last named certificate comprehends substantially all the facts which the certificate first mentioned contains, and therefore is sufficient.
The objection that the notices published under the direction of the comptroller, preliminary to the sale, were not published, or the publication proved according to law, is not well taken. The statute (S.L. 1855 chap. 427, § 34), provides, that the notice shall be published "for the space of ten weeks prior to the commencement of the sale." It was not necessary that the proof should show when the publication commenced, or when it ended; and it was sufficient that it appeared that the notice had been published, prior to the sale, the number of weeks required by law. It is difficult to see how a statement of the time when the publication commenced, or when it ended, could add to the strength of the proof. Nor was proof required that it should be next prior to the sale. The statute does not demand this, and, practically, it would be essential that the comptroller should have some time before the sale, and after the proofs were received, to ascertain and make up a statement of the expenses of publication and other matters connected with the sale, which usually embraces a large number of lots located in different parts of the State. The cases cited by the appellant upon this point are not in conflict with this interpretation of the statute, and do not aid the plaintiff's case. (See Westbrook v. Willey, 47 N.Y., 457; Bunner v. Eastman, 50 Barb., 640.)
Nor does the act require (S.L. 1855, § 33, supra), that the comptroller should proceed to advertise and sell immediately after the expiration of two years. It does not say when he shall proceed, thus vesting in the comptroller a discretion as to the time when he shall perform the duty which is to be exercised, having in view the interests of the public. No time is named within which the duty is to be performed, and hence it is to be determined by the officer. It would be contrary to the usual rule of construction in such cases to hold that such a statute was peremptory and positive in its requirements.
There was no error, and the judgment should be affirmed with costs.
All concur.
Judgment affirmed.