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for one or more years subsequent to the sale, a sum equal to the gross amount of taxes and interest which would have been due thereon, if it had been taxed during each of the years it was so exempt, on its assessed valuation, and at the rate per centum of taxation thereon for the year when last returned to the comptroller's office. In case of failure to redeem within the time herein specified, the sale and conveyance thereof shall become absolute and the occupant and all other persons barred forever.

[Revisers' Note.-L. 1893, chap. 711, § 17, as am. by

L. 1895, ch. 895,

amended by substituting the matter underscored for the matter in brackets.] The matter in brackets omitted, authorized the comptroller to appoint a commissioner "as provided by the last section." The authority is now included in the new matter inserted.

A redemption can only be made in the manner prescribed by Laws 1855, chap. 427, § 74, as amended by Laws 1890, chap. 556, § 1. People ex rel. v. Wemple, 80 Hun, 504; S. C., 30 N. Y. Supp. 503 (1894).

§ 138. Lien of mortgage not affected by tax sale. The lien of a mortgage, duly recorded or registered at the time of the sale of any lands for nonpayment of any tax or assessment thereon, shall not be destroyed, or in any manner affected, except as provided in this section. The purchaser at any such sale shall give to the mortgagee a written notice of such sale within one year from the expiration of the time to redeem, requiring him to pay the amount of purchase-money, with interest, within six months after giving the notice. Such notice may be given either personally or in the manner required by law in respect to notices of nonacceptance or nonpayment of notes or bills of exchange, and a notarial certificate thereof shall be presumptive evidence of the fact that may be recorded in the county in which the mortgage was recorded, in the same manner and with the same effect as a deed or other evidence of title to real property.

[Revisers' Note.- L. 1893, chap. 711, § 18, as am. by

L. 1895, chap. 895,

without change.]

§ 139. Redemption by mortgagee before notice. The holder of any mortgage which is duly recorded at the time of the sale, may, at any time after the sale of all or any part of the mortgaged premises for unpaid taxes, and before the expiration of six

months from the giving of the notice required by this article to be given to a mortgagee, redeem the premises so sold or any part thereof from such sale. The redemption shall be made by filing with the comptroller a written description of his mortgage and by paying to the state treasurer, upon the certificate of the comptroller, for the use of the purchaser, his heirs or assigns, the sum mentioned in his certificate, with interest at the rate allowed by law in case of redemption by occupants from the date of such certificate. The holder of such mortgage shall have a lien upon the premises redeemed for the amount so paid with interest from the time of payment, in like manner as if it had been included in the mortgage.

[Revisers' Note.-L. 1893, chap. 711, § 19, without change.]

§ 140. Cancellation of sales. The comptroller shall not convey any lands sold for taxes if he shall discover before the conveyance, that the sale was for any cause invalid or ineffectual to give title to the lands sold; but he shall cancel the sale and forthwith cause the purchase-money and interest thereon to be refunded out of the state treasury to the purchaser, his representatives or assigns. If the error originated with the county or town officers the sum paid shall be a charge against the county from which the tax was returned, and the board of supervisors thereof shall cause the same to be assessed, levied and collected and paid into the state treasury. If he shall not discover that the sale was invalid until after a conveyance of the lands sold shall have been executed he shall, on application of any person having any interest therein at the time of the sale, on receiving proof thereof, cancel the sale, refund out of the state treasury to the purchaser, his representatives or assigns, the purchase-money and interest thereon, and recharge the county from which the tax was returned, with the amount of purchasemoney and interest from the time of sale, which the county shall cause to be levied and paid into the state treasury. On any such application the comptroller may appoint a commissioner with like powers and duties as in case of an application for redemption; provided, however, that in any county which does not include a portion of the forest preserve, such application for

cancellation may also be made by the owner of the lands at the time of the tax sale.

[Revisers' Note.-L. 1893, chap. 711, § 20,

without change.]

The last portion of the section authorizing the owner of the land in any county which does not include a portion of the forest preserve to apply for cancellation, was inserted by the senate committee.

An application to the State comptroller to cancel an invalid tax sale, under Laws 1893, chap. 711, can only be made by the purchaser and not by the owner of the land at the time of the sale. People ex rel. Witte v. Roberts, 144 N. Y. 234; S. C., 63 N. Y. St. Repr. 100 (1894). This case is, of course, to be considered in connection with the amendment above referred to.

The purchaser of lands sold for taxes and bid in by the State, who buys from the State, has no standing to petition for a cancellation of the tax sales, and such cancellation is without jurisdiction; the only person who can apply is the purchaser at the tax sale, and his only means of recovering back his money is by proceedings under section 6, article 1, title 5, chap. 9, of the Revised Statutes. Matter of Olmstead, 11 Misc. 700; S. C., 66 N. Y. St. Repr. 578; 32 N. Y. Supp. 1124 (1895).

Where the comptroller had declined to cancel the tax and stop the sale, and an action was brought to have it declared void, the certificate given up, and the conveyance enjoined,- held, that, though the invalidity of the sale was not disputed, equity would not interfere, as the comptroller still had power to cancel the sale, and the deed could not be executed for two years, so that immediate danger of a cloud on plaintiff's title was not threatened. Clark v. Davenport, 30 Hun, 161 (1883).

Mandamus cannot be granted to review the decision of the comptroller as to which of several persons is entitled to the refund of purchase money under sections 80, 83, 85, above. People ex rel. Millard v. Chapin, 104 N. Y. 96; reversing 40 Hun, 386 (1887).

The owner of lands sold for taxes has no right to a certiorari to review the decision of the comptroller refusing to cancel the sale as provided for by Laws 1855, chap. 427, § 83. Such owner is not a proper party to the proceedings, which were intended to relieve the purchaser at the sale, nor can he, by means of them, determine the validity of the sale. People ex rel. Wright v. Chapin, 104 N. Y. 369 (1887).

No right of the owner is finally determined by the comptroller's refusal to cancel such sale, nor is he a person aggrieved, so as to have a right to a review under Code of Civil Procedure, § 2122, subd. 1; § 2127; Id.

It seems that Laws 1885, chap. 448, confers no new power upon the comptroller in this regard. Id. See note to § 131.

Where the relators presented to the comptroller prima facie evidence which, if true, showed that the taxes and the sales were invalid and that they were entitled to be refunded the purchase money, and offered to produce further satisfactory evidence of the facts alleged,— held, that

it was the duty of the comptroller to hear and decide the case, and that a mandamus was properly granted. People ex rel. Ostrander v. Chapin, 105 N. Y. 309 (1887).

After a comptroller's deed had been canceled,- held, that the purchase money should be refunded to the grantee of the lands from the purchaser, rather than to the assignee of his administrator. People ex rel. Ostrander v. Chapin, 15 N. Y. St. Repr. 76 (1887); affirming 46 Hun, 383.

The provisions of Laws 1855, chap. 427, §§ 83, 85, do not authorize State comptroller, upon the application of the owner of land sold for taxes, and without notice to the purchaser, to cancel the sale, for improper notice to redeem. Ostrander v. Darling, 127 N. Y. 70; S. C., 37 N. Y. St. Repr. 335 (1891).

Certified searches of title presented to and filed with the comptroller on an application for the cancellation of sale of land for taxes are competent evidence in the proceedings before him, of the facts which they disclose, though not competent evidence of such facts in a common-law action. People ex rel. v. Wemple, 67 Hun, 495; S. C., 51 N. Y. St. Repr. 203; 22 N. Y. Supp. 497; reversed on other grounds, 139 N. Y. 240 (1893).

The provisions of Laws 1855, chap. 427; Laws 1885, chap. 448; Laws 1891, chap. 217, do not authorize the comptroller to entertain and act upon the application of an owner of land sold for taxes for a cancellation of the tax sale, but the amendment of Laws 1891, chap. 217, § 2, applies only to persons interested in the refunding of moneys paid on a purchase. People ex rel. v. Wemple, 139 N. Y. 240; S. C., 54 N. Y. St. Repr. 623; reversing 67 Hun, 495; S. C., 51 N. Y. St. Repr. 230; 22 N. Y. Supp. 497 (1893).

See notes to § 131, under the act of 1885, chap. 448.

§ 141. Setting aside cancellation of sale.-The comptroller shall have power to set aside any cancellation of sale made by him in either of the following cases:

First. When such cancellation was procured by fraud or misrepresentation.

Second. When it was procured by the suppression of any material fact bearing on the case.

Third. When it was made under a mistake of fact.

The comptroller shall in all cases specify the grounds upon which such cancellation is set aside.

[Revisers' Note.- L. 1893, chap. 711, § 21,

without change.]

§ 142. Expenses of sale.-The expenses attending any sale for taxes under this article, including the expenses of printing and publishing lists and notices and transmitting copies thereof,

and of all other things required to be done before the sale shall be had, shall be a charge on the lands liable to be sold; and the comptroller shall add to the taxes, interest and other charges on each parcel of land liable to be sold, an equal proportionate part of such expenses to be estimated by him.

[Revisers' Note.-L. 1893, chap. 711, § 22,

amended by making the expenses a charge on the land "liable to be sold " instead of the land " sold." This restores the old law as it existed before 1893.]

§ 143. Payment of moneys into state treasury. The moneys received upon any sale and interest under this article, and for the expenses of the sale shall be paid into the state treasury and the accounts of all persons entitled to any portion of the moneys so received for such expenses, shall be audited by the comptroller and paid out of the state treasury.

[Revisers' Note.-L. 1893, chap. 711, § 23, without change.]

ARTICLE VII.

Sales by County Treasurers for Unpaid Taxes and Redemp

tion of Lands.

Section 150. When lands to be sold for unpaid taxes.

151. Advertisement and sale.

152. Redemption.

153. Conveyance by county treasurer.

154. Conveyance and its effect.

155. When purchase money to be refunded.

156. Lands which the state owns or upon which it has a

lien.

157. Provisions relative to comptroller to apply to treas

urer.

158. Article not to relate to certain cities.

§ 150. When lands to be sold for unpaid taxes.— Whenever any tax charged on nonresident real estate, not in a county including a portion of the forest preserve, is returned to the county treasurer, he shall not return the same to the comptroller, but if such tax, with interest thereon at the rate of ten per centum per annum, computed from the first day of February, after the same is levied, shall remain unpaid for six months from that date, such

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