[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 374 This action is in ejectment for a tract of wild land in Franklin county containing 585 3/8 acres, and was commenced on April 2d 1897. The complaint alleged that the plaintiff was the owner in fee and entitled to the immediate possession of the lands; that since the 1st of January, 1895, the defendant had been and then was comptroller of the state of New York, and that as such comptroller he was and had been for two years in possession of the said lands. The defendant answered admitting that he was comptroller of the state during the period stated, and put in issue every other allegation of the complaint. The answer then set up that the People of the state were, and for more than ten years past had been, in the actual possession of the premises under a certificate of sale made by the comptroller to the People of the state of New York on the 23d day of November, 1881, in pursuance of a sale held for non-payment of taxes, and a conveyance made on the 31st day of October, 1884, under such tax sale after the expiration of the two years allowed by law for redemption, which conveyance was recorded in the office of the clerk of the county of Franklin on April 6th, 1887. The answer further set forth as a separate defense a similar certificate, *Page 376 executed on the 29th day of November, 1885, on a sale for unpaid taxes, a conveyance thereunder dated on the 15th day of February, 1890, and the record of the conveyance in the clerk's office of Franklin county on the 3d day of March, 1891. The defendant further pleaded that under the provisions of chapter 448 of the Laws of 1885, chapter 217, Laws of 1891, and chapter 711 of the Laws of 1893, the action was not brought within the time prescribed by law, and was barred by the Statute of Limitations.
On the trial the plaintiff traced his title by a chain of conveyances from an original grant by the state in 1798. The evidence shows that beginning December 22d 1894, the defendant published for three weeks a notice stating that the premises in controversy, with others, were wild, vacant and forest lands, located in Franklin county to which the state held title, and that from and after the expiration of the publication possession thereof would be deemed to be in the control of the state, under provision of section 13, chapter 711 of the Laws of 1893. The tax certificates and conveyances were put in evidence. The only attack on the conveyance of 1884 made in pursuance of the tax sale held in 1881, related to the notice of redemption published by the comptroller. It appears that on the sale one Josiah Talmage purchased one hundred acres of the tract for the full amount of the unpaid taxes, and that a certificate of sale was issued to him. Talmage never paid the purchase money or completed his purchase. While Talmage was thus in default the comptroller published a notice of unredeemed lands in which it was stated as to these premises that one hundred acres were unredeemed. After the publication of the notice to redeem, the comptroller, on account of Talmage's failure to pay the purchase price, conveyed the whole tract of 585 3/8 acres to the state, as required by chapter 402 of the Laws of 1881. It is unnecessary to refer to the grounds on which the conveyance of 1890 was assailed. No proof was given of any possession or occupation of the premises by the plaintiff or his predecessors in title. The trial court dismissed the complaint substantially on the ground that the premises were part of the forest preserve, *Page 377 and in the occupation of the state; that an action against the state to test its title could not be maintained except by consent of the state, and that the statute of 1893 (Chapter 711, § 13) was not sufficient to authorize the maintenance of such an action. The learned Appellate Division, by a divided court, reversed the judgment and granted a new trial, holding that the act of 1893 authorized the plaintiff to sue the state and oust it from possession by an action against the comptroller. It further held that the notice of redemption on the tax sale of 1881 was fatally defective, in that it stated that one hundred acres only of the premises in suit were unredeemed while the conveyance was of the whole tract; that for this defect the conveyance made in pursuance of the sale in 1884 did not pass title and that its invalidity was not cured by the provisions of chapter 148, Laws of 1885 (subsequently re-enacted in part, chap. 217, Laws of 1891; chap. 711, Laws of 1893), which makes a conveyance of the comptroller upon tax sales, after the lapse of two years from its record in the county in which the lands are situated, conclusive evidence of the regularity of the proceedings in which conveyance was made.
We do not find it necessary to pass upon many of the questions which have been elaborately argued before us, or even the one upon which the decision of the trial court proceeded. We are of opinion that the lapse of time between the record of the conveyance of 1884 and the commencement of this action barred the right to the plaintiff to maintain it, even assuming the other questions in the case should be resolved in his favor. The learned Appellate Division held that the failure to publish a proper redemption notice was jurisdictional as to the conveyance of 1884, and, hence, not cured by chapter 448 of the Laws of 1885, and cited Ensign v. Barse (107 N.Y. 329) and Joslyn v. Rockwell (128 N.Y. 334) as authorities for that proposition. We think the learned court took too narrow a view of the statute of 1885. This statute, though in some aspects a curative law, is primarily and essentially much more; it is a statute of limitation. It was distinctly *Page 378 held to be such in two decisions of this court (People v.Turner, 117 N.Y. 227; Same v. Same, 145 N.Y. 459), and by the Supreme Court of the United States. (Turner v. New York,168 U.S. 90.) A curative act in the ordinary sense of that term is a retrospective law acting on past cases and existing rights. The power of the legislature to enact such laws is, therefore, confined within comparatively narrow limits, and they are usually passed to validate irregularities in legal proceedings or to give effect to contracts between parties which might otherwise fall for failure to comply with technical legal requirements. (Cooley's Constitutional Limitations, p. 454.) A very full enumeration of the cases in which the legislature may properly exercise this power is to be found in Forster v. Forster (129 Mass. 559). But there may be in legal proceedings defects which are not mere informalities or irregularities, but so vital in their character as to be beyond the help of retrospective legislation; such defects are called jurisdictional. This principle does not apply to a Statute of Limitations, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right. (Terry v. Anderson, 95 U.S. 628;Turner v. New York, supra.) Ensign v. Barse (supra) was strictly a case of a retrospective statute, for no period of time was given within which any party affected could assert his rights. The same is true of Cromwell v. MacLean (123 N.Y. 474). In Joslyn v. Rockwell (supra), as well as in the two cases of People v. Turner, all of which arose under the statute of 1885, there is to be found a discussion of defects which it was claimed were jurisdictional and not cured by that act. Such discussion, however, is not to be construed as authority for the proposition that jurisdictional defects in legal proceedings, which are beyond the scope of retrospective legislation, will equally take a claim out of the bar of a Statute of Limitations. The existence of such defects was necessarily considered in the authorities cited because the statute of 1885, in terms, exempted from its operation cases where the taxes had *Page 379 been paid, or where there was no legal right to assess the law on which they were laid. There is no exception, however, to defects in notices of redemption or in their publication; the contrary, it is expressly provided that the comptrolle deed, after the lapse of the requisite time, shall be concluse evidence that "all notices required by law to be given previous to the expiration of the two years allowed by law to redeem were regular, and regularly given."
The comptroller's deed of 1881 was recorded on the 6th day of April, 1887, while this action was not brought till nearly ten years thereafter. If it be claimed that the statutory limitation of two years did not run during some portion of this period because there were no persons or officers against whom the plaintiff could maintain an action in assertion of his title (a contention which seems to be in direct opposition to the decisions in the case of People v. Turner), certainly the disability ceased at the expiration of the publication of the comptroller's notice declaring that the state had resumed possession of the lands; for the very foundation of the plaintiff's whole case is the proposition that the statute under which that notice was published authorizes him to bring this suit. The most that could result from the plaintiff's contention, if good, would be that the statutory limit of two years would not commence to run until the publication of the comptroller's notice. But more than two years elapsed between that notice and the commencement of this action.
It is questionable whether as to an owner in actual possession of land the record of a hostile conveyance in the clerk's office is sufficient to set a Statute of Limitations running against him so as to destroy his title. (See remarks, PECKHAM, J., inJoslyn v. Rockwell, supra; also Cooley's Constitutional Limitations, p. 366.) The decisions on the subject are in conflict. In Groesbeck v. Seeley (13 Mich. 29) and in Case v. Dean (16 Mich. 12) it was held that even as to an owner in constructive possession only, a limitation law could not compel him to resort to legal proceedings in defense of his title. A contrary view was taken in Hill v. Kricke (11 *Page 380 Wisconsin, 442) and in Leffingwell v. Warren (2 Black [U.S.], 9).
In the case before us, as already stated, the plaintiff has not proved any actual possession in himself or in his grantors. If he reelies on constructive possession as following the legal title, then such possession ceased with the publication of the compller's notice of possession by the state. Here, again, the plaintiff must face the original proposition on which his action is based, that by virtue of the notice the comptroller was placed in either actual or constructive possession. We are, therefore, of opinion that in any view of the case the plaintiff's right to maintain this action was barred after the expiration of two years from the time of the comptroller's notice. Of this last claim there is further to be said, that, in the second Turner Case (145 N.Y. 451), this court held, through GRAY, J., that by chapter 283, Laws of 1885, the People of the state acquired not only constructive, but actual, possession of the lands conveyed to them by the comptroller's deed.
We think the answer of the defendant (for all the facts are pleaded) was sufficient, not only to raise the six months' limitation prescribed by the act of 1885, but also the limitation we have discussed.
The judgment of the Appellate Division should be reversed and the judgment entered on the decision of the trial court affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT and WERNER, JJ., concur; LANDON, J., not sitting.
Judgment reversed, etc.