[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 427 The Code, as enacted in 1848, made no provision respecting the determination of the claims to real property to which title 2 of chapter 5 of part 3d of the Revised Statutes related. But, in 1849, a section was inserted in the Code, as follows: "Proceedings to compel the determination of claims to real property, pursuant to the *Page 428 provisions of the Revised Statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those statutes." This section of the Code, has ever since remained unaltered.
On behalf of the appellant, it is argued that these proceedings and the judgment therein, are erroneous, because the court obtained no jurisdiction to try any claim to the lands in question, through the service of the notice of the plaintiff, or the defendants' answer thereto. That the proceeding, by notice, authorized by the Revised Statutes, is abrogated by the above quoted section of the Code. On the other hand, it is claimed by the respondent, that the remedy by action is cumulative merely, and this section of the Code only permissive, and the proceedings according to the statute may be pursued, if the party so prefer.
Shortly after this section was introduced into the Code, it was held that, notwithstanding the express language thereof, there was so great difficulty in adopting the proceedings in an action to the proceedings contemplated by the statute, that the Code was in this respect impracticable, and an attempt to commence the proceedings by summons and complaint was set aside. (Crane v.Sawyer, 5 How. Pr. R., 372.) But in 1854, it was held in the Supreme Court in Hammond v. Tillotson (18 Barb., 332), that these difficulties were not insuperable, and that the action might now be brought by summons for the purpose of determining such claims; and such an action was held regular, if the summons required an answer in twenty days. The opinion expressed by Judge STRONG, was, in effect, that the Code had superseded the statute, but that was not necessary to the decision.
The language of the section taken literally, is plainly permissive and not imperative. And I perceive no reason for deeming the enactment a repeal of the statute mode of conducting the proceedings, unless the continuance of both works some inconsistency.
Legislative declaration of the continued existence of the statute proceedings is entitled to much weight, if the question *Page 429 were otherwise doubtful, and that is found in the act of 1854, which, in terms declares that "all the provisions of that title" are hereby extended to corporations * * and "corporations are hereby authorized to proceed under said title in the same manner as individuals," and "the notice mentioned in the second section thereof, shall be subscribed," c, c.
This enactment is, though perhaps not tantamount to a revival of a repealed statute, a very palpable assertion of its continued force and operation. (Laws of 1854, Ch., 116.)
And again in 1855, section 4 was repealed, and very many provisions were added, some of which amount to affirmative re-enactments.
Thus section 5: "Any person on whom such notice may have been served, may appear by serving notice of appearance on the person on whose behalf the notice mentioned in the second section shallhave been served, or on his attorney.
And still more pointedly section 6. If such person shall not appear and answer within forty days after the service of such notice * * * the person who caused the said notice to be served * * * may enter a judgment of the Supreme Court as of course, whereby the person on whom the said notice was served, and all persons claiming under him by title accrued subsequently to theservice of such notice, shall be forever barred, c., c. Other provisions of like effect are contained in subsequent sections, and section 20: "Upon the proof of the service of such notice * * such court * * may render judgment for the plaintiff," c., c.
I can hardly conceive of anything short of direct and explicit re-enactment more conclusive than this. If there was doubt before, whether the proceedings might be commenced by notice, this statute declares that it may be, and that the person served with notice must appear and answer, or judgment may be entered; and on proof of such service, c., judgment may be entered.
I think that apart from this statute, I should be of opinion, that an action under the Code was a cumulative remedy; but under the acts of 1854 and 1855, it is, I think clear that the *Page 430 proceeding herein was rightly instituted, and the court had jurisdiction to entertain it in the form in which it was commenced.
2. The next objection is in the three forms in which the defendant moved to dismiss, that the statute has no application to the defendant's claim, which is not within the statute because such claim is a mere lien or right to make a title, and he at present makes no claim, "in fee, or for life, or for a term of years not less than ten."
The statute only authorizes a judgment which shall bar the defendant of all claim to any estate of inheritance or freehold, or (by the statute of 1848), for a term of years not less than ten. If then, the defendant made no such claim, then obviously all that his answer amounts to is a disclaimer of any such claim as the proceeding was intended or was effectual to bar. No other claim could be barred by the proceeding.
As no evidence was given by the defendant in support of his answer, we have no knowledge that he had any title or interest, legal or equitable, prospective or future. All that the court say is, that in a notice duly authorized by statute, the defendant was charged with unjustly claiming title to the premises, and that unless he appeared and asserted his claim in the manner provided by law, he would be barred from all claim to any estate of inheritance or freehold, or for a term of years less than ten in possession, remainder or reversion. Now, if he made no such claim, his appearance and answer was unnecessary; the statute, as amended in 1855, does not warrant appearance for the mere purpose of disclaiming.
The answer, if, in truth, the title set up therein did not constitute such a claim as the statute contemplates, and so the defendant in the answer itself declares, should have been struck out as frivolous. I give no opinion on that question, because the title was not proved, and therefore, the question is not before us.
The course taken by the defendant produces this alternative. The claim of the defendant, as his title is set up in the *Page 431 answer, is either such a claim as is contemplated by the statute, or it is not.
If it is not, then it is not barred by the proceeding.
If it is, then the defendant should have proved his title on the trial.
The plaintiff had regularly instituted his proceeding. If he was mistaken, and the defendant neither had nor claimed to have a claim of title which would under the statute be barred, if he did not appear and assert it, then he was not called upon to appear and assert it at all, because no judgment to his prejudice was authorized, and this statute does not authorize him to put the plaintiff to expense by appearing and putting in a disclaimer. The design of the statute, was to clear up doubtful or uncertain claims, and make the title free, and not to invite litigation by a defendant who, disclaiming such claim, might submit to judgment.
On the other hand, if the defendant had a claim which was within the statute or which was of such a nature as would or might be prejudiced by a judgment, barring him in the terms of the statute or even a claim upon which he desired to insist that its existence furnished no warrant for instituting the proceeding at all, he should have proved it. Not having done so, the question whether a claim under a certificate of sales for taxes or assessments is or is not one which warrants the plaintiff in taking proceedings under this statute was not before the court below, and is not before us on this appeal. Of the nature of the defendant's claim, or of its extent or validity, whether it be of a present or future estate, no evidence is before us and no adjudication thereon, is here for review.
I think the judgment should be affirmed.