(dissenting). The State appeals from a judgment declaring its tax deed invalid and the pla.irit.iff appeals from so much of the judgment as determines that he should pay to the State the sum of $3,065.87 as an apportionment of taxes.
Plaintiff’s title to the south half of Lot 91, Jerseyfield Patent, extends to 1845. The north half of this parcel was separately owned. The entire lot was assessed as nonresident lands for the years 1861-1863. For the years 1864 and 1865 the south half was assessed as resident land and the taxes paid. For the same years the north half was assessed as nonresident land and the taxes were not paid. In the tax sale of 1871 the entire lot was sold as one parcel for failure to pay the taxes on the whole lot for 1861, 1862 and 1863 and upon the north half for the years 1864 and 1865. It is conceded that no notice to occupants was given to anyone and no proofs were filed with the deed and no Comptroller’s certificate was given or recorded. The trial court found that the tax sale was void because the south half of the lot was sold for unpaid taxes levied on the north half. The undisputed evidence shows that plaintiff’s property on which the taxes had been paid in 1864 and 1865 was sold as one parcel with .property of some other person on which the taxes had not been paid in those years. The tax sale therefore is wholly void. (People v. Hagadorn et al., 104 N. Y. 516); Saranac L. & T. Co. v. Roberts, 195 N. Y. 303.)
The State is relying on various curative acts. These curative acts do not apply to tax sales defective on jurisdictional grounds. (People ex rel. Barnard v. Wemple, 117 N. Y. 77; Joslyn v. Rockwell et al., 128 N. Y. 334; Cromwell v. MacLean, 123 N. Y. 474; Wallace v. McEchron, 176 N. Y. 424; People v. Ladew, 189 N. Y. 355; People v. Witherbee, 199 App. Div. 272; People v. Faxon, 111 Misc. 699.)
As a matter of fact plaintiff’s lands were not wild, vacant or unoccupied. (People v. Durey, 126 Misc. 642.)
This action is not barred by the Statute of Limitations. The State in its answer pleads title; consequently the subsequent *59proceedings are the same as if this was an action brought by the defendant in ejectment (Real Property Law, § 504). The Legislature by its fiat cannot make legal a deed which was absolutely void on jurisdictional grounds. (Dunkum v. Maceck Building Corp., 256 N. Y. 275, 285.)
The court had no power to impose the payment of any money as a condition for granting relief to plaintiff. Since the south half of Lot 91 was jointly assessed as one parcel with the north half of the same lot during all of the years involved and since the land was not assessed as resident land but was assessed as State land the assessment and tax deed are void on jurisdictional grounds. (Crommclin v. Finn, 129 Misc. 252, affd. 223 App. Div. 868; People v. Hagadorn, supra; Saranac L. & T. Co. v. Roberts, supra.) The judgment appealed from should be affirmed insofar as it adjudges that the tax deed held by the State is invalid and should be reversed insofar as it adjudges that plaintiff should pay any sum as an apportionment of taxes to the State.
Bliss and Schenck, JJ., concur with Hill, P. J.; Heeeernan, J., dissents in an opinion; Brewster, J., taking no part.
Judgment reversed on the law, with costs, and complaint dismissed, with costs.