Argued October 7, 1885
Decided November 24, 1885
John P. Hunt for appellant.
Homer Weston for respondents.
The duty of assessors in subjecting real estate to taxation is prescribed by the statute, which carefully bounds and restricts their jurisdiction. (2 R.S. [7th ed.] 989, §§ 1, 2, 3.) Before the amendment of 1878 (Chap. 152), the proper construction of the enactment had been determined in this court. ( Buff. State Line R.R. Co. v. Supervisors of Erie Co., 48 N.Y. 101.) It was ruled that when the owner and occupant both reside in the town where the land is situated it may be assessed to either; where the owner does not reside in the town but there is an occupant who does, it must be assessed to the occupant; and when neither of them reside in the town, it must be assessed as non-resident land. The statute as amended passed under our review in Hilton v. Fonda 86 N.Y. 346). The result of that review was stated to be "that the assessors of a town have no power by law to assess lands, though lying in their town, to one who is not a resident of that town or of their county;" nor does the jurisdiction of the assessors to value the lands for the purpose of a tax draw to them "such further or other power as that an unlawful act of assessing them to a person, who, though the owner, was not a resident of the town or county, nor an actual occupant of the lands, can be excused as an erroneous exercise of power." Such is the rule under the general statute. The county of Onondaga has a tax system in many respects peculiar to itself and differing in numerous details from that prescribed for the State at large. (2 Laws of 1867, p. 2156, chap. 858.) But the changes begin at that point in the ordinary process where the work of the assessors is ended, and the tax-rolls have been delivered to the collector. By the terms of section 12 the general laws of the State in relation to the assessment and collection of taxes are made applicable where the Onondaga act makes no specific provision. And in the charter of the city of Syracuse as amended, (2 Laws of 1868, 1034), it is provided as to assessors that they shall perform all the duties, and possess all the powers conferred upon assessors in the different towns of the State, and be subject to all their obligations. So that, in determining the fundamental question in this case, whether the assessment sought to be canceled is valid or void, we must be governed by the general law applicable to the State at large.
It is proven in this case that the plaintiff is the owner of the land assessed, and is a non-resident of the State; that the land was actually occupied by one Savage, who resided in the town, using the lot in question for the storage of lumber. It follows that the sole jurisdiction of the assessors was to value the land against the resident occupant and so initiate a charge upon him personally. They had no jurisdiction to value the lands as against the owner, since he was a non-resident, nor could they be assessed as non-resident lands since they were not unoccupied. (2 R.S. [7th ed.] 989, § 3.) Now, no assessment was made against the occupant which alone was lawful. On the contrary, the lands were valued against the plaintiff by name and as owner, and so a charge upon her personally was initiated. It is true that such assessment appears in the part of the roll devoted to non-resident lands, but that cannot alter the legal effect of the assessment as establishing a personal charge. By the city charter the warrant to the collector commands him "to collect from the several persons named in the assessment-rolls the several sums mentioned in the last column opposite their respective names." Wherever in the roll there is a name with a tax opposite, that tax becomes a charge against that person, which the officer must collect of him if possible. The same mode of assessment appeared in Johnson v. Learn, (30 Barb. 618), and, while the general doctrine of that case has been made inapplicable by later amendments and decisions, its reasoning as to the effect of naming the person assessed appears to be sound. But in any event the lot here assessed could not be lawfully assessed either to the plaintiff, or as lands of a non-resident, and the assessment was equally void whichever construction should be adopted.
There was thus a void assessment against the lands of the plaintiff. The case shows a sale for non-payment of the taxes; a purchase by the defendants; the execution and delivery of a deed from the county treasurer of Onondaga county to them; and the record of such deed in the proper clerk's office. In that condition of affairs this action was brought in equity to set aside and cancel the tax deed as a cloud upon the plaintiff's title. The respondents further contend that the action cannot be maintained because, upon the plaintiff's own theory, the deed is void upon its face, and the intervention of equity is not essential. So far as this contention is sought to be supported by a claim that the time for redemption had not expired and the plaintiff might have redeemed, the answer is that she was not bound to redeem from a void assessment, and such remedy only tended to enforce and perpetuate the wrong. The Onondaga act makes the deed conclusive evidence that the sale was regular, and presumptive evidence that all the previous proceedings were regular according to the provisions of the act (§ 10). By section 9 it is made the duty of the county treasurer to execute the deed if the lands are not redeemed as in the act provided, and the deed may be recorded in the same manner and with like effect as a deed acknowledged or proved. The resultant inquiry is, whether the respondents, in seeking to enforce their title, would be obliged to develop the fatal defect in the assessment. ( Clark v. Devenport, 95 N.Y. 477.) We think not. By the Onondaga act the bare production of the deed carries with it a presumption that all the prior proceedings were regular. The expiration of the time to redeem and the fact of no redemption are conditions under the law which must precede the giving of the deed, and are included in the presumption which is attached to it. It is claimed, however, and such was the ruling of the General Term, that the general act (Laws of 1855, chap. 427) providing for notice to the occupant to redeem, and the record of the official certificate of non-redemption are essential to the validity of the deed, and their absence would leave the purchaser without a prima facie right. The question whether these general provisions apply to the Onondaga act is one of no little difficulty; but assuming that they do apply, the deed is yet prima facie evidence of the right to recover possession. The general act relates to lands returned as non-resident lands and so presumed to have been unoccupied when the assessment was made. But since at the later period of the sale an actual occupancy may have arisen, in such case notice and proof of its service are required. But as against the grantee in the tax deed there is no presumption of such actual occupancy, and when he puts that deed in evidence his case is made, and the burden falls upon the adversary of developing a defect in the deed by showing that at the time of sale or within the allotted period of redemption there was an actual occupancy which made the deed, standing alone, ineffectual. The cases cited by the General Term went upon the ground that actual occupancy at the date of the comptroller's deed was conceded or fully established. ( Jackson v. Esty, 7 Wend. 148; Bush v. Davison, 16 id. 550; Lucas v. McEnerna, 19 Hun, 14.) There is no doubt about that, but, especially under the provisions of the Onondaga county act, the deed is prima facie valid, and the plaintiff may rest upon it until the fact of occupancy is developed by his adversary. That is an extrinsic fact to be proven by the defendant to destroy the force of the deed with which he is confronted, and it cannot be said that the respondents here, in ejectment against the plaintiff, could not succeed in making a prima facie case without developing the defects in their title. There was thus a cloud upon plaintiff's title. Under the Onondaga act the deed carried with it all necessary presumptions and imposed upon the plaintiff the need of establishing either that there was an actual occupancy when the assessment was made or when the deed was given. Each of these were extrinsic facts, outside of the record, and the plaintiff has established them both.
The judgment should be reversed and a new trial granted, costs to abide the event.