Curtiss and others vs. Follett and Van Dyke, 15 Barb. 337

By the Court, Johnson, J. The premises in question consist of about two acres of land, within the bounds of the city of Rochester. At the time of the commencement of the action, the defendants were in the actual and peaceable possession of the premises. This was sufficient for them, unless the plaintiffs could show a title which gave them the right to the possession as against the defendants. The plaintiffs undertook to make title to themselves from three different sources.

First, by a deed of lot number 16, of which the two acres in question are a part, from David Armour to Benjamin Miller, dated May 25th, 1825, and by sundry mesne conveyances to the plaintiffs. Second, by a deed from the comptroller, in pursuance of a tax sale, dated May 1st, 1828. The sale was on the 12th of April, 1826, of twenty-four acres, in the northwest corner or part of lot 16, for the taxes of 1817 and 1818, and embraced the premises in question. Third, by quit-claim deed from the defendant, Hannah Follett, and her husband Henry T. Follett, to Betsey Curtiss, dated May 12th, 1829.

Hannah Follett was then a married woman, residing with her husband upon the premises in question ; and this deed was not acknowledged by her. Conveyances from all these sources united in Betsey Curtiss, who died in 1837, having devised the lands, including these premises, to the plaintiffs. But I am clearly of opinion that, notwithstanding all these conveyances, the plaintiffs have entirely failed to make out a valid title to the premises in question, as against Hannah Follett and those holding under her.

As to the conveyance from Armour, no attempt was made to show title in him at the time of his conveyance, or prior thereto. Besides, the defendant, Hannah Follett, and her husband, were then in the actual possession of the premises in question, under a deed of a prior date to her, from another person. So that' this deed from Armour was void, even had title been shown in him at the time.

Nothing can be claimed from the comptroller’s deed; because, had it appeared that all the proceedings were regular; so as to give the comptroller authority to sell and convey, the land was actually occupied, at the date of the conveyance, by Mrs.. Follett and her husband; and no notice, such as the statute requires -in such cases, is shown to have been given to them by the grantee. Indeed, it is expressly admitted by the plaintiffs’ counsel, that no such notice was given. But the preliminary proceedings were clearly defective, and the comptroller acquired no jurisdiction, and had no power or authority to sell.

Before the act of 1850, (Sess. Laws of 1850,344, chap. 183,) amending the revised statutes, it was necessary for a party claiming under a comptroller’s deed, in order to entitle himself to recover, to go behind the deed and show at least a valid assessment and a regular return by the proper collector,, to establish the authority of the comptroller to sell and convey. His deed was only prima facie evidence that the proceedings had been all regular in regard to the sale and conveyance; but not of the authority to-sell. That was to be made out by evidence aliunde.

This act has, however, changed the rule of evidence on this subject; and thrown the burthen of disproving the authority of the comptroller, upon the party disputing the deed. The comptroller’s deed is now prima facie evidence not only of the regularity of the sale, but also of all the steps and proceedings necessary to confer authority upon the comptroller to sell. The plaintiffs, upon the trial, not relying, as they might have done, upon the prima facie evidence afforded by the deed, undertook to give direct evidence of the preliminary steps, and thus make out the comptroller’s authority.

In doing this, they introduced a certified copy of the return of the collector, of the non-payment of the taxes under which the sale was in fact made. This return is clearly defective. The statute (2 R.

S. 513, § 11,) under which the return was made, required the collector, within a week after the expiration of the time for paying the amount of the tax to the county treasurer, to deliver to such treasurer an account of all taxes remaining due, which he had been unable to levy, and make oath that the sums mentioned in such account remained unpaid, and that he had been unable to discover any goods or chattels belonging to or in the possession of the persons charged,, whereon he could levy the same; and that the account was a true transcript from the original assessment roll.

The affidavit annexed by the collector to his account returned to the treasurer, did not show that the account so returned was a transcript from the original assessment roll, nor any thing upon that subject. Neither the treasurer, therefore, nor the comptroller, had any evidence before him, that the taxes assessed by the assessors and contained in the assessment roll remained unpaid. The presumptions in favor of the validity and regularity of the sale, afforded by the deed, were completely negatived by this proof, and the sale and conveyance shown to be entirely void.

No assessment whatever, in fact, was shown; and for aught that appears to the contrary, the account returned was one made up by the collector. Unless it appeared from the return of the collector that the taxes assessed and contained in the assessment roll had not been paid, the comptroller had no authority to sell. The evidence of this fact, in the manner prescribed, could alone give him jurisdiction. The deed from Henry T. Follett and his wife, .Hannah Follett, the defendant, gave to the grantee an estate for the life of the husband only, not being acknowledged by the wife.

This estate terminated at the death of Henry T. Follett, the husband, in February, 1840. By this event Mrs. Follett was fully restored to all her rights in the premises, divested of the claims of the husband and his grantees. This right, it seems, she exercised, and resumed possession in April, 1851. Follett and wife claimed, as has been seen, under a deed to the wife.

The plaintiffs’ counsel contends that the conveyance by the defendant Hannah Follett and her husband, in May, 1829, was in affirmance of the comptroller’s deed, and is evidence that they waived the notice which the statute requires the purchaser at the tax sale to give to the occupant of the land, in order to perfect his title. But the inference from the fact of the sale and conveyance by Follett and wife, is manifestly just the contrary of this. The consideration of this conveyance is shown to have been $250, paid to Mrs.

Follett, in money, and is clear evidence that neither the grantors nor the grantee regarded the comptroller’s deed as of any consequence. But independent of this, a waiver is not equivalent to the service of a notice, which the statute requires to render a title under a statutory proceeding complete. [Jackson v. Esty, 7 Wend. 148.) Again; it is urged by the plaintiffs’ counsel that inasmuch as it is shown by the evidence, that the consideration of the conveyance was paid to Mrs.

Follett, instead of her husband, at the time of giving the deed, she is estopped from claiming the land, although her deed was not properly executed to divest her of her title. But this consequence does not follow in the present case, even if we were to hold that the principle of estoppel applies to married women when acting under and with their husbands. It is a sufficient answer, I think, for her, that by the express provision of the statute her right did not pass to the grantee, and was in no wise affected by this deed.

But if this were not so, the evidence does not show that she ever agreed to do any thing more than she did do; nor that she was ever requested to acknowledge the deed; nor, indeed, that it was ever expected by the grantee that she would. The deed was effectual without her acknowledgment, for the purpose of divesting the husband of his estate in the land; and- the presumption is, that the parties understood the law, and only bargained for the right which the deed as executed and accepted legally conveyed. Another ground taken by the plaintiffs’ counsel is, that the defendants themselves proved by parol that Mrs.

Follett and her husband were turned out of possession of the premises some time prior to 1829, on the foreclosure of a mortgage upon the same premises, executed by her grantor, and that as she was shown to have been in possession again in May, 1829, the presumption is that she went in under the title through which the plaintiffs claim. But no such presumption arises; especially when the fact is shown that the testator under whom the plaintiffs claim, purchased and took a conveyance from the defendant Mrs.

Follett and her husband, who were then actually in possession claiming title to it, and surrendered their possession to the grantee soon after executing the deed. The legal inference is just the reverse of that claimed. [Cayuga General Term, June 6, 1853. Selden, T. R. Strong and Johnson, Justices.) The plaintiffs, however, are not estopped by this quit-claim deed from Follett and wife, from questioning the defendants’ title, and showing a perfect one in themselves from another source, as claimed by the defendants’ counsel. (Sparrow v.

Kingman, 1 Comst. 242.) But although the deed is not conclusive as an estoppel, it is, certainly, unexplained, presumptive evidence that Betsey Curtiss, under whom the plaintiffs claim, recognized the ■validity of the claim of her grantors, and as one hostile to hers. And as Mrs. Follett’s rights were not affected by that deed, independent of the rights of her husband, and she has resumed her possession, her claim must be regarded as sufficient, against the plaintiffs’ claim of title, until they can trace theirs back to the original source of title.

" The defendants are, therefore, in my opinion, entitled to judgment on the case presented.