This is an action of ejectment, or in the language of the Code of Civil Procedure, an action to recover real property. The property in controversy is an island about fifteen acres in extent known as Osprey island, situated in Raquette lake in the Adirondack region. It is also known as Murray island, having been the camping place of the Rev. W.H.H. Murray, sometimes called Adirondack Murray. The plaintiff's title is based on three tax deeds dated in 1875, 1881 and 1884, and respectively recorded in 1877, 1882 and 1887. Each of these deeds was made by the state comptroller for the time being, and purports to have been given as the result of a tax sale duly made under chapter 427 of the Laws of 1855 and the acts amending the same. That statute provided and the tax laws ever since have provided for the service of a written notice on the person occupying land thus sold for taxes, by the grantee or any person claiming under him, that the conveyances would become absolute within a specified time (then six months, now one year) unless the consideration money together with a statutory percentage thereon should be paid into the treasury for the benefit of the grantee. It also expressly authorized the occupant or any other person, at any time within the period mentioned in such notice, to redeem the land by making the prescribed payment; and it further in terms provided that "no conveyance made in pursuance of this section (namely, section 68) shall be recorded until the expiration of such notice and the evidence of the service of such notice shall be recorded with such conveyance." It should be noted here that the referee expressly finds that no notice of the tax sales made by the comptroller in 1871, 1877 and 1881 was served upon the occupant of Osprey or Murray island, and that the deeds issued to the plaintiff upon the said sales were recorded without evidence of the service of such notice.
The defendant proved title to the island in question by adverse possession against the original owner. One Alva Dunning entered upon the island in 1869, and actually occupied *Page 359 it under claim of title continuously until he transferred it to Charles W. Durant by a deed dated December 22, 1881. Durant remained in possession until he conveyed the premises to the defendant Joseph H. Ladew by a deed dated May 11, 1891, at which time the defendant entered into possession, and he has ever since actually occupied the island. The referee held in substance that the defendant had established a title by adverse possession as against the original owner, but that nevertheless the plaintiff was entitled to succeed by virtue of the tax deeds. He conceded that the title of the plaintiff based upon these deeds was subject to jurisdictional defects which would invalidate it if the defendant was in a position to raise the question. He took the position, however, that the defendant was a mere stranger claiming no interest derived from the purchaser at the tax sale or from the original owner; and he deemed his interest as an actual occupant of the land claiming title thereto at the time of the tax sales insufficient to give him any right to question the title asserted by the state or to question the sufficiency of the tax title by reason of the failure to give the notice to redeem which the statute required to be served upon an occupant of the lands.
In my opinion this view is incorrect. At the time when the first tax deed was placed on record Dunning was the actual occupant of the island and at the times when the two later deeds were recorded Durant was an actual occupant. Unless the requirement of the statute is to be wholly ignored, Dunning was entitled to be served with a notice to redeem from the first sale and Durant was entitled to be served with a notice to redeem from the two later sales. Furthermore, evidence of the service of such notice was expressly required to be recorded with the conveyances under the tax sale and the statute expressly prohibited the recording of the conveyances until the expiration of such notice. Therefore, in the case of occupied land, such as this was, the record, without evidence of service of the notice, was absolutely void. Hence it seems to me that the tax deeds from the comptroller are to *Page 360 be regarded as though they had not been placed upon the record books at all.
The so-called curative acts (Laws of 1885, chapter 448, Laws of 1896, chapter 908) did not help the plaintiff out of this difficulty. Section 132 of the statute last cited, which is substantially a re-enactment of the acts of 1885, does provide that a conveyance executed by the comptroller which has for two years been recorded in the office of the clerk of the county in which the lands conveyed thereby are located shall be conclusive evidence that the sale and proceedings prior thereto and all notice required to be given to the expiration of the time allowed for redemption were regular and regularly given, published and served. Even if we give to this provision the broadest possible effect it plainly cannot apply to a record which was wholly void.
In Meigs v. Roberts (162 N.Y. 371) it was held that the act of 1885 making the comptroller's conveyance upon a tax sale conclusive evidence of the regularity of the proceedings was primarily and essentially a statute of limitations although in some aspects a curative statute. That was a suit in ejectment against the state comptroller who had been in possession of the lands in controversy for two years prior to the commencement of the action. The plaintiff did not prove any actual possession in himself or in his grantors; and it was held that his right to maintain the suit was barred after the expiration of two years from the time of the comptroller's notice that the state had resumed possession of the lands. In that case Judge CULLEN, writing for the court, declared that it was questionable whether as to an owner in actual possession of land the record of a hostile conveyance in the clerk's office was sufficient to set a statute of limitations running against him so as to destroy his title. The same doubt was expressed by Judge PECKHAM in Joslyn v. Rockwell (128 N.Y. 334) in language which conveys the impression that if the learned judge had been required then to solve that doubt he would have held that the conveyance was ineffective. It is not necessary, however, to decide this question in disposing of the *Page 361 present appeal, if I am correct in the view which I have expressed to the effect that the record of the tax deeds upon which the plaintiff relies in the present case was a nullity.
In his oral argument counsel for the respondent placed considerable reliance upon the case of People v. Turner (second appeal, 145 N.Y. 451) in which Judge GRAY wrote for a unanimous court. The only part of the opinion which seems to me to have any bearing upon the present controversy is on page 461 where Judge GRAY deals with the final point of the appellant that there was an actual occupancy of part of the lands and as no notice was served on the occupant no title was acquired under the same. Judge GRAY disposed of this objection by showing that the finding of the referee before whom the case was tried really negatived any such actual occupancy of the lands as required service of a notice to redeem under the statute. This in no wise conflicts with the view which I have taken as to the proper disposition of the case at bar.
For the foregoing reasons I advise a reversal of the judgment and that a new trial be granted, costs to abide event.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, VANN and HISCOCK, JJ., concur; HAIGHT, J., absent.
Judgment reversed, etc.