[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 109
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 112 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 114 Many questions were made on the trial, as to the proof of the original patent, and as to the proof of the proper title of the plaintiff. We do not think any one well taken, but if either were, it became immaterial, by the further proof, that the defendant held under and subject to that title. The patent contained some 22,000 acres, besides lands for roads, etc., therein. A large portion of the lots embraced in the patent, were held by grantees of the original patentee or their assigns, under grants in fee reserving rent. This lot was so held, and rent had been paid thereon. Another portion had been sold in lots in fee simple absolute.
It is also insisted here, that the plaintiff showed herself to be a tenant in common with the defendant in this lot, as she showed title to only one-sixth of the rents reserved; and her co-owners not having elected to enforce their forfeitures, she would be a tenant in common with defendant under certain circumstances, and was bound to prove an ouster.
It is a sufficient answer to this to say that no such point was presented at the trial, where the defective evidence might have been supplied, and it cannot now be raised. *Page 116
The defendant further insists that the court erred in directing a verdict, and in not submitting the case to the jury. We think not. The facts were undisputed and the rights of the parties were mere matters of law, which the court was bound to decide.
The plaintiff's right to one-sixth of the premises being established at the trial by proof of title, and of rent being due and unpaid; the defendant proved that this lot had been sold by the sheriff under a warrant issued by the treasurer of Delaware county, for the non-payment of a tax claimed to have been imposed upon plaintiff and others as owners of the rents reserved by the authorities of the town of Kortright, where the lot was situate, and that the time to redeem had expired before the commencement of this suit. It was conceded that no deed had been executed by the sheriff on such sale, but only a certificate of sale, and it is urged that that proceeding showed title out of the plaintiff. The title never was perfected, and though it be a good defence, if held by the party in possession, yet when held by another, it does not show title out of the plaintiff. It is merely an equitable title, a right to have a legal and perfect title; but not having it until perfected, such a title would not enable its possessor to maintain ejectment. Such is the substance of the statute, and so are the authorities. (2 R.S., 373, §§ 61, 62.) The last clause of section 62, says, "which conveyance (the sheriff's deed) shall be valid and effectual to convey all the right, title and interest, which was sold by such officer." (Wright v. Douglass, 2 N.Y., 373; Miller v. Lewis,4 N Y, 554; Thomas v. Crofeet, 14 N.Y., 474.)
But waiving this answer to the defence, the point is presented, whether this alleged tax sale was void, by reason of failure to comply with the directions of the statute in imposing the tax, and in the proceedings thereafter.
The statute authorizing this tax, makes it "the duty of the assessors of each ward and town, while engaged in ascertaining the taxable property therein, by diligent inquiry, to ascertain the amount of rents reserved in any leases in fee, *Page 117 or for one or more lives, or for a term of years, exceeding twenty-one years, and chargeable upon lands within such town or ward, which rents shall be assessed to the person or persons, entitled to receive the same, as personal estate, which it is hereby declared to be, for the purpose of taxation under this act." (S.L., 1846, p. 466, § 1.)
The second section requires the board of supervisors to assess such taxes "upon the person or persons, entitled to receive such rents within the town or ward, where the lands upon which such rents are reserved, are situated, in the same manner and to the same extent as any personal estate of the inhabitants of such town."
The third section makes it the duty of the collector, if it be not paid, to levy said tax by distress and sale of the goods, etc., "of the person against whom the same is assessed" within the town, etc.
The fourth section requires the county treasurer, when the collector returns the tax unpaid, to issue "his warrant to the sheriff of any county, where any real or personal estate of the person" taxed may be found, commanding its collection.
The fifth section requires the sheriff to proceed with such warrant, as with executions issued by the county clerk upon judgments, etc.
This act was amended in 1858, so as to require the assessor in "all cases of assessment" under the act of 1846, above referred to, to specify in the assessment rolls "each rent so assessed," and gives power to the board of supervisors to reduce the assessment of any "person" assessed under said act so as to make it just. (Laws of 1858, p. 600, § 1.)
In assessing the tax, under which this lot was sold by the sheriff, the assessors put it down in their roll as follows: "The Kortright patent, John Kortright and others legal heirs of John Kortright, late of the city of New York, deceased, or their heirs or assigns, for rent reserved in the town of Kortright, in the county of Delaware, subject to taxation, estimated at a principal sum, which at a legal rate *Page 118 of interest will produce an income equal in amount to such rents. $26,195; $632.41, personal."
The county treasurer's warrant described the persons entitled to receive the rent as "John Kortright and others, legal heirs of John Kortright, late of the city of New York, deceased," and commanded the sheriff to make the tax of their property. The notice of sale simply described the Kortland patent, which lay partly in the town of Kortright, and partly in the town of Davenport, and then the sheriff sold the separate lots therein without any separate advertisement.
The separate lots contained 150 acres each, were about 112 in number, and were all sold by the sheriff under said warrant.
The first objection to these taxes is, that the assessors have not "assessed them upon the person or persons entitled to receive them," as they are required to do by the statute.
The assessment must be made in this case upon these persons, "in the same manner, and to the same extent as any personal estate of the inhabitants of such town."
The statute as to assessment for personal estate requires the name of the person taxed to be put down in the roll in one column, and the full value of his personal property in another. (1 R.S., 390, § 9.) It is not denied that the names should be put down, but it is insisted that they were sufficiently inserted on the tax roll. The statute in this particular must be substantially complied with. Its entire omission would be fatal to the validity of the tax.
Where the assessment of a tax for land was made against a person neither "owner or occupant" of the land as required by the statute, the assessment has been held to be absolutely void. (Whitney v. Thomas, 23 N.Y., 281, at 284.) This, it must be remembered, is an assessment for personal property against these parties.
Is the statement made here any better than if none had been made as to the names of the persons assessed? Only one person is named in the assessment roll, "John Kortright," *Page 119 and he had been dead five years before this assessment was made. He was a son of John Kortright, once owner of the patent, who died in 1810.
It cannot be pretended that it was sufficient to name him who had been dead five years. The other designations are mere alternative classes. "Other legal heirs of John Kortright, deceased, or their heirs or assigns."
It is said that the assessors acted judicially, and that this may be likened to a judgment. Such a judgment against one of these classes would scarcely be claimed to be valid, especially a judgment entered without process or notice to any one.
It is, perhaps, not necessary to say, that the persons should literally be named in all cases; but they clearly should be as distinctly identified, as if named.
In Wheeler v. Anthony (10 Wend., 346), it was held that a district school tax assessed upon "the widow and heirs of Zopher S. Wheeler, deceased," imposed upon them as owners and occupants of a farm, was properly imposed in that form. It was said by the court in that case, that "when property is owned by a single individual, it is proper and necessary that the name of such individual should be inserted in the tax bill; but when a farm is owned or possessed by a mercantile or other firm, the assessment to such firm would answer the same purpose as well as writing out each name.
If this were true, in that case, as to such a tax for a farm, a tax can scarcely be imposed for personal property against tenants in common in any such form, as the statute authorizes no such tax.
If tenants in common of personal property were taxed as a body for so much personalty, it would afford no opportunity to any one of them to swear it off on account of debts that he might owe.
The statute says that the roll must state, first, "the names of all the taxable inhabitants, and fourth, the full value of the personal property owned by such person, after deducting the just debts owing by him." (1 R.S., 390, § 9.) *Page 120
Such a taxation to a body of tenants in common complies with neither of these provisions, and affords no opportunity to an individual to have his tax corrected. A firm is not a person, like a corporation. Hence the tax as to personal property should be upon each individual, including his interest in the firm, as in all other taxable personal property. But if the tax be valid upon a firm, it does not follow that it would be valid when imposed upon a body of tenants in common, in personalty, as a body.
It is also insisted that part of these names or classes inserted in this tax roll may be rejected as surplusage.
The difficulty is, that there is nothing by which to determine what is surplusage, which end may be struck off. Besides, it is not a case of a thing or person already sufficiently described with a superfluous inaccuracy added. This tax is imposed as much upon one of these three classes as upon either of the others.
It is also urged that these persons are estopped from questioning this tax now, because they have been assessed in this form for eighteen years prior to this assessment, and have always paid it.
The payment of a tax for any number of years without legal proceedings, will not give validity to such proceedings when they are questioned, if taken without authority of law. One might almost as well defend an action for an assault and battery, by pleading that he had beaten the plaintiff every year for many years, and that this was the first time the plaintiff had ever complained.
It is further objected to this assessment, that it was made in gross for all the rents reserved in the whole patent, instead of "specifying such rent, so assessed," as required by the act of 1858.
One object of this amendment of the act was probably to afford greater security to the party entitled to receive the rent, affording him greater facility in correcting erroneous assessments. *Page 121
If the assessment were made for "each rent" separately, and the rent upon one or two lots had been extinguished, the party could readily show it, without going over the whole patent to show that the gross sum assessed was too large. So of any other mistake as to any particular rent.
The county treasurer seemed to think the assessment illegal, and in issuing his warrant, he cut off two classes named in the assessment, and issued it against the only person named, who had been dead for years, and others, heirs, etc.
If the assessment were void, the county treasurer could scarcely make it valid by his warrant.
It is insisted that the assessors, in making this assessment, acted judicially; that they had jurisdiction of the subject-matter, the rents, and of the persons entitled to receive them, and although they committed errors, yet their action was not void, but only voidable. The liability of assessors is not here in question, and it is perhaps not necessary to discuss it.
But, if the purchaser, in this case, were a defendant claiming to hold this property under these proceedings, he would fail. He would fail even upon the ground assumed by the defence.
Surely it will not do to say, that because there are rents reserved in the town, and they are receivable by some one, therefore whatever the assessors may do in relation to an assessment in such case is valid, whether it be in substantial compliance with the statute or not. The assessment must be made to some one. It is not sufficient to say generally to the persons entitled to receive the rents. They must be named and indicated. Until that is done, the assessors have passed no specific judgment have really exercised no jurisdiction.
It is a rule well established by authority, that when one claims to hold another's property under statutory proceedings, as under a sale for taxes, he must show that every material provision designed for the security of the persons taxed, for their protection, has been substantially complied with, otherwise the claim will fail. In fact the rule is generally laid *Page 122 down with much more strictness. (Bloom v. Burdick, 1 Hill, 131; Sharp v. Spier, 4 Hill, 76; Doughty v. Hope, 3 Denio, 594; Whitney v. Thomas, supra; Van Rensselaer v.Witbeck, 3 Seld., 517; People v. Chenango Suprs., 1 Kern., 563; Thacher v. Powell, 6 Wheat., 119.) The cases of Swift v. The city of Poughkeepsie, (37 N.Y., 513), and Barhyte v.Shepherd (35 N.Y. 251) have not changed this rule.
In Torrey v. Millbury (21 Pick., 64 at 67), Ch. Justice SHAW, in delivering the opinion of the court, said: "In considering the various statutes regulating the assessment of taxes, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely. One rule is very plain and well settled, that all those measures which are intended for the security of the citizen, for insuring an equality of taxation, and to enable every one to know with reasonable certainty for what polls, and for what real and personal estate he is taxed, and for what all those who are liable with him are taxed, are conditions precedent, etc., and if not observed, he is not legally taxed.
"But many regulations are made by statute, intended to promote method, system and uniformity in the modes of proceeding, the compliance or non-compliance with which, does in no respect affect the rights of tax-paying citizens. These may be considered directory."
These remarks apply with great force to the entire omission by the assessors, to tax each rent separately, as absolutely required by the act of 1858. We regard that act as imperative, and not directory merely.
For the reasons above stated, we think the purchaser under this assessment took no title.
There are other defects insisted upon not deemed necessary to consider.
The judgment is affirmed.
All the judges concurring judgment affirmed. *Page 123