Joslyn v. Rockwell

Mayham, J.,

(dissenting.) This is an appeal from a judgment entered upon a verdict of a jury in favor of the defendants. The action was for trespass in wrongfully entering upon lands of plaintiff’s grantor and assignor, and cutting and converting wood and timber, and for the recovery of treble damage under the provisions of section 1668 of the Code of Civil Procedure. The complaint alleges that the defendants were co-partners in the lumbering business, and that without leave they entered upon a tract of wild land belonging to Elizabeth Miller and Elizabeth F. Smith, and wrongfully and unlawfully cut and carried away a large quantity of timber and trees standing and growing thereon, and cut said timber and trees into logs, and girdled and stripped and peeled the bark from the hemlock trees and logs, and wrongfully and unlawfully took and carried off from such land and premises such bark and logs without the consent of the owners, to their damage of $5,000, and claims judgment under the provisions of sections 1667 and 1668 of the Code of Civil Procedure, for $15,000. • The answer denies all the allegations of the complaint, except as therein expressly stated, admitted, or qualified, and on information and belief denies the copartnership, and denies any information sufficient to form a belief as to whether Miller and Smith were joint owners, as alleged; also as to whether they conveyed the premises described in the complaint to the plaintiff, and also sold him the claim for damage, as therein alleged. The chief controversy on that trial was whether the land on which the timber and bark was concededly cut, and from which the defendants had taken or caused to be taken, was the land of the plaintiff, as described in the complaint. The parties respectively introduced the conveyances under which they claimed title to the premises where the timber was cut, and there is much conflicting and unsatisfactory oral evidence bearing upon the question of location.

The first three points made by the appellant for the reversal of this judgment relate to the alleged insufficiency of the answer, and alleged error in allowing the defendants to amend the same on the trial. We think the answer was sufficient to put the allegation of the plaintiff’s complaint in issue. Assuming that the defendants’ “denial of each and every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated, or qualified,” is neither a general nor specific denial, and not such a denial as is provided for in the Code, (People v. Snyder, 41 N. Y. 400; McEncroe v. Decker, 58 How. Pr. 250,) and the denial upon information and belief of the copartnership alleged in the complaint is not the form of denial authorized by section 500 of the Code of Civil Procedure, yet, as no motion was made to strike out these defective allegations in the answer, or for judgment on that account, and as the second, third, and fourth subdivisions of the answer denies any knowledge or information sufficient to form a belief, and each concludes with an express denial of the matters which it purports to answer, the whole answer, taken together, must be held sufficient to put in issue the allegations of the complaint. Nor do we think the allowance of an amendment of the answer on the trial error. Section 723 of the Code of Civil Procedure authorizes the court at the trial to allow an amendment of pleadings in the exercise of a sound discretion where justice will thereby be promoted, (Rosenwald v. Hammerstein, 12 Daly, 377;) and, as the plaintiff i n this case made no proof that she was misled to her prejudice by the amendment, it must be assumed that the discretion was properly exercised, (Code Civil Proe. § 539.) The plaintiff claims title to the locus in quo under two deeds from the comptroller of the state of New York to Garret Smith, alleged to have been given on tax-sales, one dated the 6th day of March, 1856, and pur*316porting to convey 208 acres, conveyed by the following description: “Also two hundred and eight acres, (208,) to be laid out as aforesaid, being the south part of subdivision No. 4 of lot No. 5 in the 25 allotment of Kayaderosseras patent.” The other deed bears date the 13th of January, 1869, and purports to convey'150 acres, described in the deed as follows: “One hundred and fifteen (115) acres, being the north part, seventy-five (75) acres, and west part, forty (40) acres, subdivision No. 4, lot No. 5, twenty-fifth allotment, Kayaderosseras patent.” Garret Smith, by his will, devised the lands described in these conveyances in and by the residuary clause of the same, one-half to his wife, and one-quarter to his son, Green Smith, and one-quarter to his daughter, Elizabeth Miller, each taking an undivided interest as above set forth. Garret Smith, in and by the fifth or residuary clause in his will, devised- and bequeathed all the rest, residue, and remainder of his estate to his wife, Elizabeth F. Smith. Elizabeth S. Miller and Elizabeth F. Smith, by quitclaim deed dated the 4th of July, 1886, conveyed to A. Joslyn the land described therein as follows: “All that parcel or piece of Iand.situated in the county of Warren, state of New York, being forty acres in the west part, seventy-five acres in the north part, and two hundred and eight acres in the south part, of subdivision No. 4 of lot No. 5, in the 25th allotment of Kayaderosseras patent; also the right to collect damage for past trespass.” The grantors in the last-mentioned deed also conveyed by quitclaim to the grantee therein, on the 22d of July, 1886, another piece of land described as follows: “All that tract, piece, or parcel of land, situated in the county of Warren, state.of New York, being the south half of 250 acres in subdivision 3, (now known as subdivision 2, the McOmber lot,) lot 6, 25th allotment, Kayaderosseras patent.” All right to collect damages for past trespasses on the above land is hereby conveyed. The plaintiff also put in evidence a warranty deed from Charles Newcomb and wife to Calvin Joslyn, purporting to convey the equal undivided half part of “all that certain tract, piece, or parcel of land situate, lying, and being in the town of Luzerne, and as a part of subdivision No. 4 in great lot No. 5 in the 25th great allotment of the Kayaderosseras patent.” The lot is further described in this deed by metes and bounds, and as the same lot described in a deed dated December 9, 1865, given by Charles Newcomb and wife to Abner Wright, Jr. The plaintiff also puts in evidence map of the allotment, with particular descriptions of lots Nos. 4, 5, and 6 in that allotment. The plaintiff also put in evidence a certificate of sale by the sheriff of Warren county, on an execution against Aaron G. Murray, Jr., and John Cameron; to A. Joslyn, of all the right, title, and interest of Aaron G. Murray and John A. Cameron, or either of them, on the 19th day of May, 1877, of, in, and to the real estate described as follows: The equal- undivided one-third part of the piece or parcel of land described as follows: (Here follows a description of the land sold, described' as 150 acres, being the same" premises conveyed to John A. Cameron by Aaron G. Murray and wife by deed November 9, 1869.) The defendant claims title through a deed from Abel French, dated October 1,1880, who claimed to derive his title from Solomon W. Bussell and wife, dated April 26, 1837, who claimed title under two deeds,—one from the comptroller of the state, dated 11th day of February, 1834, and a quitclaim deed from Peter Smith, dated the 9th of November, 1833. Neither of these deeds seem to have been recorded.

The learned judge at the trial held that the plaintiff, by his evidence, had made out a prima facie title to all of subdivision 4 and great lot 5 of the 25th allotment of the Kayaderosseras patent, on which the- alleged trespass was committed; but that prima facie title was attacked by the evidence of the defendant, tending to show that the tax-sales to Garret Smith, through whom the plaintiff claims title, were defective, and did not convey a valid title as against -French, to whose rights the defendant succeeded under a deed from him. The plaintiff insists that the tax-sale to Smith was conclusive evidence *317of Smith’s title, and that it cannot be assailed in this action, and that it was error to allow evidence of deeds and other papers offered by the defendant tending to show title in defendants and their grantors, or evidence tending to attack the regularity of the comptroller’s deed to Smith, or of the assessments under which the sales were made for which the comptroller’s deeds were executed to Smith, and that the judge’s charge relating to that subject was erroneous, as we have seen the comptroller’s deeds to Smitii were dated, respectively, March 6, 1856, and January 19, 1869, and recorded on the 19th day of March, 1859, and on the 3d of November, 1869, in Warren county clerk’s office. It does not seem to be disputed that these deeds cover the land on which this timber was cut; but the contention of the defendants is that the comptroller had no right to sell these lands under the assessment under which he assumed to advertise and sell the same, and that the purchaser at that sale could get no greater title than the comptroller had a right to sell, under the assessment, to the 70 acres claimed by French, as that was no part of the Murray lot, on which the assessment was made. There is great force in this contention, unless all parties are concluded by the comptroller’s deed from attacking conveyance under it, by the provisions of chapter 448 of the Laws of 1885, which amends chapter 427 of the Laws of 1855. Section 65 of that chapter is amended so as to read as follows: “Such conveyance shall be executed by the comptroller under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller; and all such conveyances that have been theretofore executed by the comptroller, and all conveyances of the same lands by his grantees or grantee therein named, after having been recorded for two years in the office of the county clerk in which the lands thereby conveyed 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 to redeem from such sale, shall, six months after this act takes effect, be conclusive evidence of that sale, and of 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 the two years allowed by law to redeem, were regular, and were regularly given, published, and served, according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto; and all other conveyances or certificates heretofore or hereafter executed or issued by comptroller, shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof from and after the expiration of the two years from the date of recording such other conveyance, or four years from and after the date of issuing such other certificates. ” This section then provides that such certificates are subject to cancellation, as now provided by law, and direct application to the comptroller. Section 2 of this amendment makes it applicable to Warren county. Stronger language could hardly have been employed by the legislature to make such deeds conclusive after the lapse of two years from the date of recording than is used in this amendment. This amendment makes the conveyance conclusive evidence from and after the expiration of two years after the date of the recording of the deed. The deeds to Smith were recorded in the proper clerk’s office more than two years before the alleged cutting of this timber, and the title under them to the lands conveyed became absolute in the grantee; and, as there does not appear to have been any proceeding instituted before the comptroller under this act to cancel such conveyances, we do not see how they can now be assailed collaterally in this action. Webster defines “conclusive in law” to be “that of which from its nature the law allows no contradiction or explanation; an inference which the law makes as peremptory, that it will not allow it to be overthrown by any contrary proof, however strong.” If, then, as was conceded by the learned judge at the trial, these deeds conveyed the locus in quo, so that proof *318of the deeds and the cutting of the timber made a prima facie case for the plaintiff, the fact that the deeds of Garret Smith were properly recorded more than two years before the commission of the alleged trespass made that a case which before the act of 1855 was prima facie conclusive, and precluded all inquiry into the preliminary steps leading up to the making of the deed, and, indeed, all inquiry in an action at law as to whether the deed was upon the lands against which taxes were in arrears. In other words, so far as these parties were concerned in this action, it gave to the deeds absolute verity, and excluded all inquiry into their regularity, leaving the parties to stand alone upon the deeds. However harshly this may appear to operate upon the rights of the parties, it seems to be the only construction of which that amendment of 1885 is capable. The object of the legislature obviously was to quiet tax-titles, and cast upon the land-owners the burden of moving promptly after the recording of comptroller’s deeds given on tax-sales, either before the comptroller, to have the error, if any has been committed, corrected, or by some other method of procedure, to correct the error within two years after constructive notice by the recording of the deed, or that the deed shall become conclusive. That act was in its nature a short statute of limitation, and it would seem that relief must be sought before it attached, or the remedies were lost.

If the act of 1885, under the conditions specified, made the deed to Smith conclusive, then inquiry into the validity of the assessment, and the circumstances under which the comptroller’s deeds were given, was.improper, and inadmissible, and the receipt of evidence on the trial, under the plaintiff’s objections, tending to establish that fact, was an error. In People v. Turner, 2 N. Y. Supp. 253, 49 Hun, 466, affirmed in 117 N. Y. 227, 22 N. E. Rep. 1022, the trial court excluded evidence offered of irregularities in the assessments to defeat a comptroller’s deed on the ground that the deed was conclusive, and the general term and court of appeals held the decision was correct, and the evidence was properly excluded, and the general term treated the act of 1885 as a short statute of limitation, and-upon that subject use this language: “It will be seen that the statute acted as a statute of limitations.” And in discussing the same question Huger, C. J., in delivering the opinion of the court of appeals, after quoting from the section above referred to of chapter 448 of the Laws of 1885, uses this language: “ With reference to the six-months provision, it operates as to all existing eases as a limitation upon the tax-payer’s right to assert his claim under pre-existing laws and as to all future cases provides that the lapse of two years from recording shall make that which was before presumptive evidence only conclusive upon the rights of the parties. The act seems to be in its principal aspect one of limitation, and, as such, is within the constitutional power of the legislature to enact as affecting future cases, and, we think, within the settled rule equally within its power as to existing rights. It gives in all cases time for the person aggrieved to establish his rights, unaffected by the provisions of the enactment, but provides that after the lapse of a certain time the comptroller’s deed shall be conclusive evidence of the regularity of the proceedings upon whicli it was based. Legislation of such a character has frequently been held within the constitutional power of the legislature to enact. ” Many other questions are raised on this appeal, among which is the other defendants’ right, acquired under the conveyances under the French deed, through which they claim, which we are not called upon to examine, if we hold, as I think we must, that the judge erred in allowing the evidence tending to attack the regularity of the comptroller’s deeds to Smith, through which the plaintiff claims. Those deeds, as we have seen, cannot be assailed in that manner, and the allowance of evidence for that purpose was error, for which a new trial should be granted. I think the judgment should be reversed,1 and a new trial ordered, costs to abide the event.