I agree with Mr. Justice Putnam that the plaintiffs proved a paper title to five-sixths of the lands described in the complaint under the patent to Alexander Macomb of 1787. But I think that such title was divested by the Comptroller’s deed to the State under the tax sale of 1843, for the reason that chapter 448, Laws of 1885, and chapter 711, Laws of 1893, limited the time in which the presumptive evidence of the validity of the title given by that deed to the State could be controverted, and that time having expired before this action was commenced, the deed has become conclusive evidence of the validity of the title thereby conveyed to the State. Such, I think, is the effect we must give to the statutes of 1885 and 1893 under the authority of People v. Turner (145 N. Y. 451; affd., 168 U. S. 90).
The Comptroller’s deed is dated November 4, 1845, and was recorded in the office of the Secretary of State. September 27, 1855, the People of the State, by letters patent, conveyed the premises to the Sackett’s Harbor and Saratoga Railroad Company. The *36defendant-is the grantee of the said railroad company’s grantees, by deeds duly recorded more than two years before the commencement of this action. .
The Comptroller’s sale was made in 1843 and was irregular, and could have been vacated if it had been seasonably attacked. Prior to the statute of 1885, the Comptroller’s deed was only presumptive evidence-of the regularity, and, consequently, of the validity of the sale. (Laws of. 1855, chap. 427, § 65.)
The return to- the Comptroller of the unpaid taxes for the years 1836, 1837, 1838 and 1839 shows the assessment to have been upon the entire township No. 38,'containing 20,000 acres, except certain designated parts thereof, which either were not embraced in the assessment, or upon which the taxes had been paid. Among the excepted parcels for the years 1836, 1837 was the northeast quarter — 5,000 acres — which quarter embraces the locus in quo, upon which the taxes for 1836,1837 were paid before return was made to the Comptroller.
But the taxes upon the northeast quarter for the years 1838, 1839 were unpaid, and the Comptroller, therefore, had the right to sell the quarter. But as the township was wild forest land, with no visible allotments into the respective parcels of the several owners thereof, the northeast parcel was taxed as part of the larger parcel from which it was not visibly separated. This was permissible.. Upon other portions of the larger parcel the taxes of 1836, 1837 were unpaid, and also the taxes for 1838, 1839! The Comptroller sold the larger parcel embracing the northeast quarter, and thus the locus in quo for all the unpaid taxes for the years'1836, 1837, 1838 and 1839.
Under the laws then existing, the owner of the northeast quarter could not have redeemed it by paying the amount properly chargeable upon it, but would have been obliged to pay the proportion of the unpaid taxes upon all the parcels which his acreage bore to the whole acreage;. and' as that- amount was increased by the taxes of 1836, 1837 upon the other parcels, the owner of the land would have been obliged to pay more than he owed. . The sale, therefore, was invalid, and, no doubt) it would have been so held if it had been seasonably attacked. (People v. Hagadorn, 104 N. Y. 516.)
Section 12,'chapter 711, Laws 1893,. is as follows :
*37“ Effect of former deeds. Every such conveya/nce heretofore executed by the Comptroller, county treasurer or county judge, and all conveyances of the same lands by his grantee or grantees therein named, which have for two years been recorded in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the Comptroller, that shall have remained in force for two years after the last day allowed by law for redemption from such sale, shall be conclusive evidence that the sale am,d proceedings prior ' thereto from and including the assessment of the lands, and alb notices required by law to be given previous to the expiration of the time allowed for redemption, were regular and regularly given, published and served according to the provisions of all laws directing and requiring the same or in any manner relating thereto, but all such conveyances and certificates, and the taxes and tax values on which they are based, shall be subject to cancellation on direct application to the Comptroller, or in an action brought before a competent court therefor by reason of the payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid, or by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds.”
Every objection urged in this case to the validity of the Comptroller’s sale of 1843 is covered by the terms of this statute.
The State was the purchaser at that sale, and if the Comptroller could have canceled the sale, the owner had his opportunity to have his day in court before that officer. The distinction between the case where the State is the purchaser and where an individual is the purchaser, is stated by the Court of Appeals in the Turner case, and referred to as unimportant in the opinion in the Supreme Court of the United States in the same case, referring to the case of People v. Roberts (151 N. Y. 540), since the owner had his opportunity to seek his remedy in the Supreme Court, whether he had one before the Comptroller or not. The answer to the plaintiffs’ contention that it is sought to deprive them of their property without due process of law is, that the State gave.them, or their grantor, the opportunity to protect their land by due process of law, and they would not resort to it.
*38But can a person upon whose estate an unlawful charge has been placed be put to the costs and trouble of a proceeding to remove the charge under peril of losing his estate % Yes. When danger threatens, we must resort to whatever measures are needful to avert it, or abide its perils. The State must collect its taxes; it may-make mistakes in doing so, and it is not unreasonable, especially in respect to unoccupied lands, that the owners of such lands should be charged with the burden of showing the mistake within a reasonable timei In such case, the land is taxed, not the owner; the owner knows his land is subject to taxation, and that he must protect it from sale or lose it.
If the owner had been in possession of the lands, then I think it quite probable that a different rule would apply, for the' reason that statutes of limitation do not give validity to bad or imperfect titles as against a possessor who is not given notice to defend against them until after the limitation has expired. They are shields for the defense of the possessor, not weapons for his eviction. (Joslyn v. Pulver, 59 Hun, 129; affd., sub nom. Joslyn v. Rockwell, 128 N. Y. 834.) But when he is out of possession, non constat but that he is out because he has no right to be in ; and hence there is no apparent reason why, when he is absent arid-silent- during all the time the statute allows him to protect his title against the proceeding of the State to confiscate it, he should not be held to have abandoned it, or to have admitted the right of the State to divest him of it.
There is in this case no constitutional question respecting the imposition of the taxes. There is no constitutional provision respecting any particular procedure to be pursued by the Comptroller in selling lands upon the non-payment of' taxes thereon. There is none in respect to redemption. This sale was not upon account of tlie taxes which had been paid, but for- the unpaid taxes. I concede that if the sale had been upon account of the taxes for 1836, 1837, which had been paid, the sale would have been void beyond the power of any statute to cure or validate it. The purpose of these statutes is to collect unpaid taxes, and, if the taxes have been paid, the statutes do not apply. If the Comptroller should make a salé, it would not be for unpaid taxes, and he has no jurisdiction to sell, and can be given none to make.a tax sale when *39'there is no tax unpaid. Calling it a tax sale would not make it such. I doubt whether the statute quoted declares that the Comptroller’s deed is evidence that the tax had not been paid. But if it does so declare, I think the fact may be shown to be otherwise, upon the same principle that you may attack a judgment by proving that no summons was served, or jurisdiction otherwise acquired. The same rule should apiply if the tax was unconstitutionally laid, because a constitutional-tax and its non-payment lie at the foundation of the power to sell; and you cannot, in such cases, by a subsequent statute, give jurisdiction mono pro tuno so as to supply the original lack of it, however it may be with a curative statute, that still preserves for a reasonable time, before another forum, the party’s constitutional rights. Of course, these questions are not before us. I refer to them in the hope that they serve to make my meaning clearer upon the question that is before us.
But the taxes for 1838, 1839 were not paid, and the sale was for such unpaid taxes. The Comptroller had jurisdiction to make that sale, and ought to have observed the statutory regulations then in force. He made the sale, and it is now challenged because he did not observe the statutory regulations, b.ut disregarded them by selling this land in a parcel which embraced other lands upon which the taxes for four years — 1836, 1837, 1838 and 1839 •— were unpaid.
Thus, the form and manner of the sale are now attacked. That means that the Comptroller, in making the sale, abused his jurisdiction as to form and manner, or erred in exercising it — nothing more. The unpaid taxes were like a judgment, and the Comptroller’s sale is like a sheriff’s sale upon execution, which may be vacated if not made in proper form and manner. But the owner, like the judgment debtor, may waive the irregularities. Neither can get' rid of the tax or judgment except by paying it, and it may not be worth his while to take the trouble to move when the successful result of his motion will still leave the tax or judgment unsatisfied. It is obvious that these irregularities are not jurisdictional, in the sense that they lie at the foundation of the Comptroller’s power to sell, or that they take it away from him altogether, but only in the sense that his power to sell in this form and manner may be challenged arid such sale set aside. (Ensign v. Barse, 107 N. Y. 329.)
*40This is very different from a sale where there are no taxes unpaid. The one cannot be made at all, and the other ought to be made in due form and manner. The one cannot be cured, the other ought to be, and, after a reasonable lapse of time, it should be regarded as cured, if the owner meantime makes no objection. It is proper, to have evidence of this waiver, and this the Comptroller’s deed, two years after its record, affords.
In this ca§e, the time allowed for the owner to complain expired,’ and the owner did nothing. The statutes declare in effect that his day has gone by, and that the Comptroller’s deed is, therefore, conclusive evidence of the maternal facts which the plaintiffs now seek to controvert.
I do not think the. Comptroller’s deed to the State was void on its face for uncertainty of description. The alleged uncertainty is in regard to the land excepted from the grant, namely, “ 250- acres in the northeast corner of the northeast quarter.” Suppose the exception void for uncertainty; then there is no exception from the grant. But the exception in a tax title should he construed most favorably to the owner, since no more land should be sold than is necessary, and the-excepted land should be located, if possible, and in tire manner as favorable as possible to the owner. The corner is a base point from which two sides of the land excepted can extend an equal distance along the intersecting boundaries so as to include by parallel lines the 250 acres. (Jackson v. Vickory, 1 Wend. 407; Dolan v. Trelevan, 31 Wis. 147; Bowers v. Chambers, 53 Miss. 259; Doe ex dem. Hooper v. Clayton, 81 Ala. 391.) I think this location was intended and should be adopted.
As to the exception from the Comptroller’s deed of the lots 2, 3, 6, 7, 8 and 9 in Gorton’s tract, the deed is not void on its face for lack of certain description. The uncertainty arises from the lack of extrinsic evidence locating the tract and the lots. The defendant did not need to furnish it. ■ The action is ejectment, and plaintiffs must show title to the lots before defendant could be put to its proof. If plaintiffs had shown such title, they would have shown the certainty of the description.
I advise a reversal.
All concurred, except Putnam, J., dissenting.