Statement of case.

William Reid became the purchaser at tax sales in the city of Albany of certain lands sold for the non-payment of taxes thereon, under the act, chapter 86 of the Laws of 1850, and he received the certificates of such sales and the deeds of the lands sold as provided in that act. The sales were made and the moneys paid by him between June, 1875, and June, 1883, both inclusive. The plaintiff has succeeded to the rights of Reid and commenced this action September 2, 1890, to recover with interest the moneys paid by Reid upon such sales. The defense was the Statute of Limitations, which was overruled by the trial judge, who gave judgment to the plaintiff for the amount claimed.

Other facts appear in the opinion.

Andrew Hamilton for appellant. There is no liability at common law, and the rule of caveat emptor is strictly applied to a purchaser at a tax sale. (Laws of 1850, chap. 86, § 52; De Grauw v. Supervisors, 13 Hun, 381; Cooley on Taxn. 329, 375, 572; Desty on Taxn. 850; Lynde v. Melrose, 10 Allen, 47; Packard v. Limerick, 34 Me. 269; Coffin v. City of Brooklyn, 116 N. Y. 166; Brevoort v. City of Brooklyn, 39 id. 120, 135; Van Honk v. Whitbeck, 3 Paige, 409.) Under the amendment thereto the board of supervisors had no authority to make the reimbursement. It would have been an illegal act for them to do, and no action will lie for their refusal to do it. (Laws of 1889, chap. 429.) If it should be held that the cause of action was not taken away by virtue of chapter 429, Laws of 1889, then the defendants contend that the cause of action is barred by the Statute of Limitations. (Code Civ. Pro. $$ 380, 382, 410; Laws of 1850, chap. 86, §§ 48, 52.) The plaintiff's claim being thus barred by the statute, it was not only the right of the supervisors, but their duty, to reject it, and to refuse to make the reimbursement. They have only authority to allow legal claims, and one barred by the Statute of Limitations is not a legal one. (Rodgers v. Rodgers, 3 Wend. 503; In re Carr, 5 Redf. 69, 74; Supervisors v. Ellis, 59 N. Y. 620; Iull v. Supervisors, 19 Johns.

Statement of case.

* *

259; 6 Abb. [N. C.] 398.) The trial court erroneously found, as matter of fact, "that, as a result of a decision of the Court of Appeals of this state in a similar case, the said tax sales were declared irregular and void on or about June 7, 1887." And as a conclusion of law, "that neither said Reid nor the plaintiff were entitled to demand the reimbursement of the moneys so paid out * for such certificates until the year 1887, and after such certificates had been declared irregular and void by the court, as hereinbefore found." (Parsons v. Rochester, 43 Hun, 258; Van Nest v. Mayor, etc., 24 Wkly. Dig. 50; Dickinson v. Mayor., etc., 92 N. Y. 584; White v. City of Brooklyn, 122 id. 55; 89 id. 128; Sauerville v. Hamilton, 4 Wheat. 230; 2 Greenl. on Ev. 431; Taylor v. Spears, 6 Ark. 381; Abbott's Trial Ev. 822.) Even though the plaintiff were entitled to reimbursement of the purchase-money, she was not entitled to interest allowed, as we requested the court to find, and to whose refusal we duly excepted. (122 N. Y. 64.)

D. Cady Herrick for respondent. None of the general Statutes of Limitations bar the claim or cause of action. (De Graw v. Bd. Suprs., 13 Hun, 381; People v. Ingersoll, 58 N. Y. 33; Laws of 1850, chap. 86, § 52.) The remedy or right of action given by the act of 1850 was not extinguished by the act of 1889. (Gibbs v. Ins. Co., 63 N. Y. 121; Goillotel v. Mayor, etc., 87 id. 445; In re Miller, 110 id. 223; Ely v. Holton, 15 id. 595; Moore v. Mausert, 49 id. 332; People v. Suprs., 67 id. 117.) Plaintiff's claim is not barred by the Statute of Limitations created by chapter 429 of the Laws of 1889. (Sayre v. Wisner, 8 Wend. 661; Richardson v. Cook, 37 Vt. 599.) To give the construction contended for by defendants would be to give it a retrospective operation, which is contrary to the policy of the law. (People v. O'Brien, 111 N. Y. 60; Sanford v. Bennett, 24 id. 20; People v. Suprs., 43 id. 130–135; Beecher v. F. R. R. Co., 131 Mass. 156; Fitzpatrick v. Boylan, 57 N. Y. 433.) Nothing in the wording of the act of 1889 indicates that the legislature

Opinion of the Court, per EARL, J.

intended it should have a retrospective operation; neither is there any necessary implication to that effect. (Harvey v. Tyler, 2 Wall. 347; Seamans v. Corter, 15 Wis. 548; Beecher v. F. R. R. Co., 131 Mass. 156; Benton v. Wickwire, 54 N. Y. 229.) A construction that would apply the statute to sales made more than six years before its passage would work injustice, affect vested rights and impair the validity of contracts. (Dash v. Van Kleeck, 7 Johns. 477; Watkens v. Haight, 18 id. 138; Sayre v. Wisner, 8 Wend. 661; Mongeon v. People, 55 N. Y. 616; Fitzpatrick v. Boylan, 57 id. 437; N. Y. & O. M. R. R. Co. v. Van Han, Id. 477; People v. Green, 55 id. 295; Price v. Hopkins, 13 Mich. 318.) The true rule of construction is to apply to past transactions, but only from the time of the passage of the act, no part of the time that has elapsed prior to its passage counting as a part of the six years. (Sohn v. Watterson, 84 U. S. 596; Brewster v. Brewster, 32 Barb. 429; McCahill v. Hamilton, 20 Hun, 388; Terry v. Anderson, 95 U. S. 628.) Where there is a change in the Statute of Limitations the time that had run before the passage of the act is no part of the new limitation. (Sohn v. Watterson, 84 U. S. 596; Sayre v. Wisner, 8 Wend. 664; Nickler. v. Hoskins, 15 Ala. 619; 50 Am. Dec. 154; Cox v. Davies, 17 Ala. 714; 52 Am. Dec. 199; Davies v. Davies, 7 How. Pr. 778.) Neither section 410 nor 415 of the Code of Civil Procedure affect the question. (Dickinson v. Mayor, etc., 92 N. Y. 584; Code Civ. Pro. §§ 365, 368, 415; Fisher v. Mayor, etc., 67 N. Y. 73; White v. City of Brooklyn, 122 id. 53.)

EARL, J. All the moneys claimed in this action were paid upon the tax sales more than seven years before the commencement of the action, and the only question for our determination is whether their recovery is barred by the Statute of Limitations.

Under section 48 of article 6 of chapter 86 of the Laws of 1850, the purchaser at tax sales conducted in the city of Albany, upon the payment by him of the amount of his bids,

Opinion of the Court, per EARL, J.

was entitled to receive certificates of such sales, and then he was immediately entitled to possess, hold and enjoy the lands purchased for the full term mentioned in his certificates; and he was authorized to cause the occupants thereof to be removed therefrom, and the possession thereof delivered to him in the same manner and by the same proceedings, by and before the same officers, as in the case of a tenant holding over after the expiration of his term without permission of his landlord. Then it was provided in section 52 of the same article, excepting the words in italics, as follows: "Whenever any purchaser under such sales shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the board of supervisors of the said county shall at any time within six years from such sale, reimburse the purchase-money so paid, with interest; and upon their refusal or neglect to do so, the same may be recovered by an action against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose, not otherwise specifically appropriated, upon a production of a certified copy of the judgment; and if he have no such moneys in his hands, then the same shall be added to the amount of the taxes to be levied on the city of Albany, and collected in the same manner as other contingent expenses, and when collected shall be paid over to such purchaser."

The section was amended by the act chapter 429 of the Laws of 1889, passed June eleventh of that year, by inserting therein the words in italics.

It was not alleged in the complaint and was not shown upon the trial that any legal proceedings of any kind had been instituted by the purchaser or the plaintiff to recover possession of the real estate. It does not even appear by allegations or proof that the purchaser or the plaintiff ever demanded or made any efforts of any kind to obtain such possession. The plaintiff's case rests upon the allegation contained in the complaint, and not denied in the answer, that the purchaser and the plaintiff SICKELS-VOL. LXXXIII. 47

Opinion of the Court, per EARL, J.

were unable to recover the possession of the real estate purchased by reason of errors and irregularities in the assessment and in the levying of the taxes, and in the proceeding for the collection thereof. The findings of the trial judge upon that branch of the plaintiff's case was based on that admitted allegation, and he found that the purchaser was entitled to demand possession of the real estate sold to him immediately upon the issuing to him of the certificates of the sales, and "that by reason of errors and irregularities in the proceedings prior to the said sales, the purchaser was unable to recover possession of the parcels sold at the times of such sales and immediately thereafter."

The trial judge made a finding of fact based upon an allegation in the complaint, not denied in the answer, "that as a result of a decision of the Court of Appeals of this state in a similar case, the said tax sales were declared irregular and void on or about January 7, 1887," and upon that finding of fact, he based a conclusion of law "that neither the said William Reid nor the plaintiff were entitled to demand of the defendants the reimbursement of the moneys so paid out on said tax sales and for such certificates and deeds above referred to, until the year 1887, and after such sales, certificates and deeds had been declared irregular and void by the court as hereinbefore found;" and he held that the Statute of Limitations did not begin to run until that date. The decision of the Court of Appeals referred to was made in the case of Remsen v. Wheeler (105 N. Y. 573), a case which arose in the city of Brooklyn and related exclusively to taxes imposed there.

That decision had nothing whatever to do with these parties or these sales. It did not conclude or bind these parties, and simply furnished evidence of the law. It was not even abso lutely binding as a precedent in any other case. The Court of Appeals could disregard it as authority in any subsequent case if it believed it to be unsound. (Saint Nicholas Bank v. State National Bank, in this court June 2, 1891.)* These tax sales were not valid until that decision and then

*Ante, page 26.