The plaintiff’s right to recover for the trees cut and carried away by the defendants depended upon the question whether the intestate had established title to the lands upon which the trees stood. That title depended upon the validity and effect of two deeds from the comptroller of the state to Garret Smith,—the first executed in 1856, the second in 1869; the first recorded in the Warren county clerk’s office in 1859, and the second in 1869; both purporting to be made because of the non-payment of taxes assessed upon the lands described therein, which description embraced the loans in quo. The taxes upon the non-payment of which the lands were sold by the comptroller were assessed as upon non-resident lands. The defendants claim title under the comptroller’s deed of 1834, and gave evidence tending to show that at the time the taxes were assessed' under which the deeds to Garret Smith were given the lands were occupied under the defendants’ grantor. The learned trial judge submitted the question to the jury upon the evidence whether at the time the assessment was made and levied under which the deeds to the plaintiff’s grantor were given the lands were actually occupied by a Mr. Ralph under Abel French, the defendants’ grantor. Evidence was given by defendants tending to show that.the taxes upon the lands in question were paid before the return was made to the comptroller, under whose deeds the plaintiff claims. The trial judge submitted the question of fact to the jury whether such taxes were actually paid. The trial judge held and instructed the jury that if the lands were occupied under the owner at the time they were assessed and taxed as non-resident lands the taxes were void, and the deeds based thereon also void; and that, if the taxes had actually been paid before return of this non-payment was made to the comptroller, his subsequent deeds of the lands were void. The jury found for the defendants.
The plaintiff’s counsel asked the court to instruct the jury that the comptroller’s deeds to Garret Smith, under whom plaintiff derived title, having been on record in the clerk’s office of the county in which the lands are situate over 10 years, are, under chapter 448, Laws 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made. “The Court. I so charge as to the regularity of the sale, but not conclusive that the taxes were not paid, or were not properly levied.” The plaintiff excepted to the refusal. The court also held that the act in question is not intended to cure jurisdictional defects, but only relates to matters of the form of the proceedings. We think the rulings of the trial court were right. The plaintiff contended that by virtue of chapter 448, Laws 1885, the comptroller’s deeds under which the plaintiff claims, were validated and made unimpeachable either by proof that the lands were occupied or that the taxes had in fact been paid. The act provides that “all such conveyances that have heretofore been executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby
*313are 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 bylaw to redeem from such sale, shall, six months after this act takes effect, be conclusive evidence that the sale of said lands and all proceedings prior thereto from and including the assessment of the land, and all notices required by law to be given previous to the expiration of two years allowed by law to redeem, were regular, and were regularly given, published, and served, according to the provisions of this act. ” This act, and the act of 1855, of which it is an amendment, are acts “in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.” Occupied lands are not the lands of non-residents. 1 Bev. St. p. 889, § 3. People v. Wemple, 117 N. Y. 77, 22 N. E. Rep. 761. If these lands were occupied at the time the assessment was made and the tax levied they were not “lands of non-residents,” and the act in question has no application. But the jury, under the charge of the court, may have found that the lands were non-resident lands, but .that the tax was paid. As the comptroller’s deed recites the jurisdictional fact of the non-payment of the tax, if that recital is conclusive evidence of it, any common-law evidence that it had been paid was erroneously received, and the verdict based upon such evidence cannot be upheld. It is held that the legislature may by statute cure omissions and irregularities in such proceedings in the assessment and levying of taxes as it might have originally dispensed with. Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15 N. E. Rep. 401. It is also held that the provision in chapter 448, Laws 1885, that the comptroller’s deed, “after having been recorded for two years, * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto * * * were regular,” gave to the tax-payer six months in which to question the regularity of the proceeding, and was thus a limitation upon his rights in that respect, and barred him from subsequently objecting upon the ground of mere irregularities. People v. Turner, 117 N. Y. 227, 22 N. E. Rep. 1022.
But the fact of non-payment is a jurisdictional fact, and not a mere irregularity in the proceedings. Unless there is default in payment of the tax, the comptroller has no jurisdiction to sell the lands. As the legislature could in no case authorize the comptroller to sell lands for non-payment of taxes except upon actual non-payment, so, after a sale by him of lands as upon non-payment, when in fact there had been payment, the legislature, within the cases cited, could not ratify or validate such a sale. Eor what the legislature could not originally authorize, it could not subsequently ratify and validate. If by any refinement of statutory limitations or rules of evidence the state can ultimately confiscate the property of an individual in a case where it never had jurisdiction to proceed at all, then the constitutional guaranty of due process of law would yield to legislative despotism. As said in Howard v. Moot, 64 N. Y. 266, and repeated in People v. Turner, 117 N. Y. 235, 22 N. E. Rep. 1024: “A law that should make evidence conclusive which was not so necessarily and of itself, and thus conclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights.” But the act of 1885 further provides: “But all such conveyances and certificates and the tax-sales and taxes on which they are based shall be subject to cancellation, as now provided by law on a direct application to the comptroller, or, in an action brought before a competent court therefor, by reason of the legal payment of such taxes.” It is claimed that the defendants had six months in which to apply to the comptroller or the court for relief, against the comptroller’s deed “by reason of the legal payment of such taxes,” and, having failed to do so,.the statute of limitations bars their right to rely upon such a defense, and the comptroller’s deed is conclusive evidence that the taxes had not been paid. What has al*314ready been said answers these positions. We cannot suppose that the state has power to spoliate the citizen by commanding that its own ex parte declaration of an untruth must be disproved by the victim of it within a short day, whether he has notice or not, or else he must surrender his estate. Estoppel sometimes promotes justice by suppressing the truth, but always at the expense of him who told the untruth. Clearly, if the state has made a mistake in asserting a jurisdictional fact to the prejudice of the citizen, it cannot, without subverting due process of law, deprive him of the right to show the truth whenever and wherever any attempt to deprive him of his property is based upon the untruth. The recital of a jurisdictional fact in a judgment is only prima facie evidence of it. Ferguson v. Crawford, 70 N. Y. 253. The individual who pays his tax has the right to rely upon complete exemption from any proceedings against his land as for non-payment. If the collector and county treasurer make false returns, the individual is put upon no-inquiry respecting them. It is timely enough for him to act when he has notice that action is necessary. In the present case it does not appear that the defendants had any such notice except by the commencement of this action. The proper office of a statute of limitations is to put an end to claims which are not asserted within a reasonable time, not to put an end tó defenses to such claims. Time is one of the muniments of the possessor’s title, and the destroyer of the non-possessor’s claim. We do not think the rule should be reversed so as to make the claim stronger as it becomes staler. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims. Cooley, Const. Lim. marg. p. 366. Here deeds which for more than 20 years were not worth asserting are claimed to be resurrected and validated by statute. But a legislative fiat cannot transfer A.’s property to B. under the guise of confirming invalid tax-sales. Cromwell v. MacLean, 25 N. E. Rep. 932. The statutes conferring authority upon the comptroller to cancel tax-sales are for the protection of the purchaser, not of the tax-payer. People v. Chapin, 104 N. Y. 369, 11 N. E. Rep. 383.
Objection was taken to the admission of a copy of the copy of the assessment roll filed in the town-clerk’s office of the town of Luzerne for the year 1856. Evidence was given tending to show that the roll for that year filed in the county treasurer’s office had been destroyed by fire, and that the copy thereof filed in the town-clerk’s office had been lost. Such being the case, the verified copy of the copy in the town-clerk’s office was the best evidence which the nature of the case admitted. The plaintiff cites People v. Chapin, 38 Hun, 272. That case did not hold that in no case could the copy in the town-clerk’s office be used, but held that if it varied from the original roll in the county treasurer’s office, or from the return made to the comptroller from the original roll, the original roll, and, in case of its loss, the return, should prevail. Here no return from the original roll was produced from the comptroller’s office. Objection is taken to the admissibility of some of the evidence tending to show payment. The assessment roll was produced. The collector was shown to be dead. Upon the line upon which the assessment and tax were entered, the word “Paid,” in the deceased collector’s handwriting, was entered. Evidence tending to show that it was his custom to make such an entry upon receipt of payment was given. We think the entry was admissible. Livingston v. Arnoux, 56 N. Y. 507; Leland v. Cameron, 31 N. Y. 115. Another assessment roll was produced, in which was written the word “Paid” upon the line upon which the assessment and tax were entered. The collector testified that he made the entry, that he made no such entry except upon payment of the tax, but that he had no recollection of the transaction. This entry also was admissible. Bank v. Madden, 114 N. Y. 280, 21 N. E. Rep. 408. .Objection is also taken to the sufficiency of the evidence to show that the lands were occupied at the time of the assessment and tax. We think the evidence sufficient to justify the presentation of the case to the *315jury. Smith v. Sanger, 4 N. Y. 577. The judgment should be affirmed, with costs.
Learned, P. J. concurs.