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Opinion of the Court.

2. That the limitation of six months was not unreasonable. 3. That the statute took away no remedy which the landowner had before its passage.

4. That the state court held he had a remedy, although there was difference of opinion whether it was by direct application to the comptroller to cancel the sales or by action of ejectment against the comptroller or forest commissioners.

5. That as the state courts decided he had a remedy it was not for us to determine what that remedy was under the local constitution and laws - that is, whether it was either a direct application to the comptroller or by action of ejectment. What, then, did this court assume, that it did not decide or ought now to decide? Counsel for plaintiff in error say that— "The Turner case established the sufficiency of the time allowed by the law now in question, but it treated the existence of a court competent to try the disputed rights and of a person liable to be sued for that purpose as questions of state law, and foreclosed by the judgment of the state court. These things ought now to be decided and not assumed."

The case, however, as we have seen, was not so limited. It decided more than that the time allowed by the statute was reasonable and sufficient. It also decided that the statute took away no remedy the landowner had before its passage, and that the law of the State gave him a remedy. What it precisely was- which of the three enumerated ones it was -was not decided. Not, however, because of the assumption of anything, but because it was not demanded. And why? The question presented was the constitutionality of the statute. That depended upon the existence of a remedy in the landowner during the period of its limitation, and whether a remedy existed what better evidence or authority could there be than the decisions of the courts interpreting the laws of the State? To accept them as such was not to assume anything without deciding it. It was to ascertain a necessary element of decision, and then exercising decision. This was our duty then and it is our duty now, and the fact that the case comes for review from the Circuit Court of the United States neither enforces nor justifies different considerations. If a precedent or coincident remedy is neces

Opinion of the Court.

sary to the constitutional validity of a statute of limitations, the existence of such remedy is necessary to be decided, and it depends upon the same considerations, and must be upon the same examination, no matter in what court it may be presented or may come.

The reasoning of the Turner case was therefore complete, and we think it is decisive against the contention of the plaintiff in error. The sufficiency of the remedies enumerated was not contested. It is not contested now. The existence of remedies is denied, but to the reasoning which attempts to support the denial we reply by repeating what we said in the Turner case that as the New York Court of Appeals has uniformly held that the landowner had a remedy, "it is not for us to determine what that remedy was under the local constitution and laws.”

The defects which plaintiff in error claims to have been in the assessments and to have been jurisdictional are stated as follows:

"1. The sale of the whole tract of land in question for the aggregate unpaid taxes of several years when, during one or more of those years, a part of the tract sold was not assessed or taxed at all.

"2. The sale as one tract of two or more parcels separately assessed.

"3. The assessment of taxes by a description so uncertain as not to identify the parcel of land taxed.

"4. Treating the land on the sale as already the property of the State, and denying opportunity for competitive bidding." The first two are treated by counsel as similar and dependent upon the same grounds of objection. The specification of those grounds is that at the sale of 1877 the whole quarter, containing 7500 acres, was sold as one parcel for the aggregate unpaid taxes of 1866-1870 inclusive, amounting with interest and costs to $2756.40, but that it was not assessed as a whole except for the years 1866 and 1867; that for the years 1868, 1869 and 1870 it was assessed in two parcels; (1) the north west quarter of township 24, "excepting 1000 acres lying in the northwest corner; also 1315 acres which is water;" and (2) "1000 acres lying in the northwest corner of the northwest quarter." And that

Opinion of the Court.

1215 acres was not assessed at all for those years. The plaintiff in error, however, does not show that it was in any way injured by the manner of selling. Its counsel supposes a possible severalty of ownership of the different parcels, and claims a cause of action from an injury which might have resulted to some one else. "We take it to be settled law," counsel say, "that the constitutionality of a statute is to be tested not so much by what is done as what may be done under it. The present record is silent as to the actual ownership of the different parcels of the quarter in question during the years 1866-1870, but plainly they might have been the subject of separate ownership." And counsel proceeds to show how a separate owner, if he had existed, would have been embarrassed in his right of redemption by the necessity of paying some other person's taxes besides his own, and of which he had not been notified during the pendency of the tax proceedings.

We are not concerned with what might have been, but only with what was. The plaintiff in error now sues as owner of the whole tract, and if there was a several ownership of it, or of parts of it, such ownership should have been shown if anything can be claimed from it. We may not suppose it from this record. It is manifest that the manner of sale could do no injury to the owner of the whole tract. Its separation in parcels on the assessment roll would be artificial and mere description. It would not affect its value, would not require the owner to pay some one's else taxes, would not make him pay more than was justly due from him either before a sale or after a sale if he then desired to exercise the right of redemption.

But even if we should suppose a several ownership of the lands at the time of the assessment or sale, we do not think that the defects in the latter were jurisdictional, and certainly of all other defects the law of 1885 is not curative only-it is one of limitation. It matters not, therefore, what the rights of any predecessor of the plaintiff might have been if seasonably asserted. They were not seasonably asserted, and they are, therefore, now precluded.

The law is like any other statute of limitations. It is not

Opinion of the Court.

affected by what the rights of plaintiff in error were. Whatever they were their remedy is gone, and the title and possession of the State, whatever may have been the defects in the proceedings of which they are the consummation, cannot now be disturbed. This was the ruling in Marsh v. Ne-Ha-Sa-Ne Park Association, 25 App. Div. 34, where the cases were reviewed, and we think correctly interpreted.

In People v. Turner, 117 N. Y. 227, the remedies of the landowner before and after a sale were considered, and the law defined as one of limitation. The court said: "Considered as an act of limitation, the only question in relation thereto is whether such limitation is just and gives the claimant a reasonable opportunity to enforce his rights. (See authorities, supra.) Under all the circumstances of the case it cannot, we think, be said, as a question of law, that the time afforded is unreasonable. Considered as establishing a rule of evidence, the only question for examination is whether property is necessarily taken without due process of law."

That case seems to have been qualified somewhat by Joslyn v. Rockwell, 128 N. Y. 334, where it was decided that the law was not conclusive against jurisdictional defects. But People v. Turner was reaffirmed in 145 N. Y 451. If the cases are in conflict the latter must prevail, but assuming their reconciliation to be in the character of the defects passed on, they are equally authoritative against plaintiff in error.

In Joslyn v. Rockwell two defects were said to be jurisdictional: The payment of taxes and the occupation of the lands. Of the latter it was said: "The act of 1885 (chap. 448) is one, by its title, relating to the collection of taxes on lands of nonresidents, and to provide for the sale of such lands for unpaid taxes.' It is provided that occupied lands are not the lands of non-residents. 1 Rev. Stat. 389, §3. And where lands of a nonresident of a county are occupied by a resident of the town an assessment to the owner in the 'non-resident' part of the roll is illegal, and the lands should be assessed to the resident occupant. People v. Wemple, Comptroller, 117 N. Y. 77. If the lands were occupied the act of 1885 would not apply." In the case at bar there is no such fact to preclude the application of the law.

Opinion of the Court.

In the case of Meigs v. Roberts, Comptroller, recently decided by the Court of Appeals of New York, Joslyn v. Rockwell, has been explained and limited, and People v. Turner again affirmed.

The action was ejectment, and the plaintiff Meigs traced his title by a chain of conveyances from an original grant by the State in 1798. The defendant justified his possession under deeds to the State in pursuance of sales for taxes. One of them was assailed on account of an alleged defect in the notice of redemption published by the comptroller. The defendant pleaded that the action was not brought within the time prescribed by the provision of chapter 448 of the Laws of 1885 and subsequent laws. The trial court dismissed the complaint on the ground that the land was in the occupation of the State, and suit could not be maintained against it without its consent. An appeal having been taken, the Appellate Division reversed the judgment and granted a new trial, holding that the action could be maintained, but also holding that the notice of redemption of the tax sale of 1881 was fatally defective, and that the deed made in pursuance of the sale did not pass title, and that the defect was not cured by the provisions of chapter 148, (subsequently reënacted in part in 1891 and 1893,) which makes the conveyance of the comptroller upon tax sales, after the 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.

The case was taken to the Court of Appeals, which reversed the Appellate Division.

The court said:

"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 1881 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 subsequent 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

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