Summary
In Levy v. Newman, 130 N.Y. 11 (N.Y. Ct. of Appeals 1891), the plaintiff sought to recover the purchase price of land which the defendant agreed to buy.
Summary of this case from City of Newark v. YeskelOpinion
Argued October 8, 1891
Decided October 20, 1891
Fernando Solinger for appellant. Ira Leo Bamberger for respondents.
This action was brought to recover the purchase-price of land, which September 1, 1887, the plaintiffs contracted to sell and the defendant to buy, by an executory contract to be performed October 17, 1887. The defense interposed is that the plaintiffs were unable to convey a perfect title. February 3, 1886, the registrar of arrears of the city of Brooklyn sold the lot in question to David J. Eisner (from whom the plaintiffs, through mesne conveyances, derived their title) for unpaid taxes, pursuant to chapter 114 of the Laws of 1883. At this time, three infants owned five-ninths of the land as tenants in common with several adults who owned four-ninths. The adults and infants were personally served with notice of the sale, but failed to redeem within the time prescribed by statute. Neither of the infants had a general guardian, and the defendant insists that their right of redemption has not been cut off.
By title 8 of chapter 863 of the Laws of 1873 (the late charter of the city of Brooklyn), a department of arrears was created and charged with the duty of selling property for unpaid taxes. By this title, the procedure by which sales were to be made and redemption effected was prescribed with particularity. Section 9 of this title provides:
"SECTION 9. Whenever such registrar shall receive satisfactory information that the land so sold belongs to an idiot or insane person, for whose estate no committee shall have been appointed, or to an infant having no guardian, he shall not execute a conveyance of their lands until at least one month after he shall have legal evidence that such disability has been removed or a committee or guardian of the estate has been appointed. And until the expiration of said month, such committee or guardian may redeem such land in the same manner as hereinbefore provided."
On the 16th of March, 1883, the taxes in arrear in this city exceeded ten millions of dollars, and on that date chapter 114, L. 1883, was passed, by which the board of assessors was authorized to determine the proportion of the taxes in arrear assessed prior to July 1, 1882, which ought to be paid. The amounts found to be equitably chargeable to each piece of property were to be a lien on the land, and a complete scheme was provided for collecting the readjusted taxes, and in case of their non-payment, for the sale of the property against which they were assessed, and for the redemption of the property sold pursuant to the act. It is not asserted and could not be successfully, that the readjusted taxes could be collected by the procedure prescribed by the charter of 1873, but they could only be by the mode provided by chapter 114, from which section 9 above quoted is omitted. This section was not repealed by the act of 1883, but by the terms of the statute, the section became wholly inapplicable to the sale and redemption of land for taxes readjusted under the statute of 1883.
The right to redeem lands sold to enforce the collection of taxes assessed against it, is purely statutory, and statutes providing the procedure for assessing and collecting taxes for the sale of land for their non-payment, and for the redemption of lands sold are applicable to infants and persons under disabilities, unless they are excepted from their operation. ( Metz v. Hipps, 96 Penn. St. 15; Smith v. Macon, 20 Ark. 17; 2 Black Tax Titles [5th ed.], § 713; Cooley Tax. [2d ed.] 533, 534; Burroughs Tax. 362; Ang. Lim. [6th ed.] § 184.)
It is a general rule that statutes limiting the time in which, and prescribing the procedure by which, rights shall be enforced, are applicable to persons under disabilities, unless expressly excepted. ( Bucklin v. Ford, 5 Barb. 393; Bank of the State of Alabama v. Dalton, 9 How. [U.S.] 522; The Sam Slick, 2 Curtis C.C. 480; U.S. v. Maillard, 4 Ben. 459; Howell v. Hair, 15 Ala. 194; Ang. Lim. [6th ed.] § 194.)
The title of the persons owning the fee at the time of a tax sale, both infants and adults, was cut off by the sale, and by their failure to redeem within the time and in the manner provided by the statute under which the sale was made. It follows that the plaintiffs tendered to the defendant a good title, and they are entitled to recover the purchase-price.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.