no wise excepted by description or by any reference or limitation allowing the lands of residents to be distinguished, or separated from, the so-called nonresident lands. The statute provides that, if the lands to be assessed as lands of nonresidents be a whole tract not subdivided, and a part only is liable to taxation, that part, or the part not liable, must be particularly described. This provision of the statute is not complied with, either in the assessment rolls or in the Comptroller's deed. It is further provided by statute that, if any part of such tract be occupied by a resident of the town, the assessors shall except such part from the assessment of the whole tract. If the assessors cannot designate such unoccupied parts, the supervisor, on notice from the assessors, must cause a survey and maps to be made to identify such parts. This provision of the statute is not complied with, either in the assessment rolls or in the Comptroller's deed. The provisions of the statute must be adhered to in order to give validity to the assessment or a tax title dependent upon it. Cottle v. Cary, 73 App. Div. 54, 76 N. Y. Supp. 580, affirmed 173 N. Y. 624, 66 N. Ě. 1106.

The proof shows that, during some of the years at least for which the assessments included in the tax sale of 1871 were made, John E. Plumley actually occupied a part of the Benedict property at the request of Benedict. (His title has since been held good in the Hasbrouck Case by Referee Henning.) The lands of Benedict, at least that part occupied by Plumley, should have been assessed to the occupant, who, the evidence shows, was during this time a resident of the town, and in 1862 was actually assessed for 40 acres in the township. The assessment of all of these lands as lands of nonresidents was void. Stewart v. Crysler, 100 N. Y. 383, 384, 3 N. E. 471.

It does not appear that the taxes upon the land of residents were unpaid for the year 1861. The description of the township is put in by naming the adjoining townships; then the township is said to contain 17,334 acres, valued at 60 cents per acre. The entire township contained about 25,200 acres, 1,260 acres of which were reserved to the state, but neither in the assessment nor in the notice of sale excepted or in any manner mentioned. The surface of Raquette Lake is about 4,800 acres. The lands under water are excepted by statute, but no mention is made of such exception by the assessors. Thus the lands or the interest in lands owned by a person was made subject to a tax upon lands which were not subject to taxation. The assessment, not excepting the said lands under water or the 1,260 acres reserved to the state, was a nullity; and a sale thereunder would pass no title to a purchaser. Rich v. Braxton, 158 U. S. 375, 15 Sup. Ct. 1006, 39 L. Ed. 1022; People ex rel. Barnard v. Wemple, 117 N. Y. 85, 22 N. E. 761.

The tax was never extended by the board of supervisors. This rendered the roll and the warrant fatally defective. A return of nonpayment of taxes so levied conferred no authority upon the Comptroller to sell the lands. People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891, approved in Matter of Adler & Co., 174 N. Y. 294, 66 N. E. 929. This may be cured by Laws 1893, p. 833, c. 413.

In 1861 the tax was returned upon nonresident lands as 17,334 acres,

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in 1862 as 17,209 acres, and in 1863, 1864, and 1865 as 17,039 acres. In 1871 the Comptroller sold 17,334 acres for the taxes of 1861, 1862, 1863, 1864, and 1865, thus selling, on account of the aggregate taxes for five years, more acres than there were taxes against for four out of the five years. In this act the Comptroller violated chapter 427, § 44, of the Laws of 1855. These lands were sold as one undivided piece, but without any description which would allow a purchaser to distinguish the 17,334 acres from other portions of the township. Though various persons had different interests in the lands assessed as nonresident lands, there was no specification of the owner or the interest, but all of the interests and pieces were sold en masse. The evidence shows that, during each of the years covered by the 1871 tax sale, Mark H. Beecher owned an undivided one-quarter interest in the 7,000-acre tract, Renil Keith owned a one-quarter interest in said tract, Abner Benedict owned an undivided three-tenths interest, and Mead, Sackett, Hay, and Platt owned an undivided one-fifth interest. Such a sale was void. "Each interest or lot must be separately advertised and sold for the payment of that tax only for which it is liable; otherwise, the whole sale will be void." Black, Tax Titles (2d Ed.) § 260. Again (section 228): "A tax sale, then, is invalid for every purpose unless the property was at the time liable for all the taxes for which it was sold."

This 7,000-acre tract was bounded on the west and north by the west and north line of the townships, on the south by Brown's Tract Inlet, on the east in part by Raquette Lake, and was so bounded and identified that the tract might have been described with reasonable certainty by the assessors and in the descriptions for the tax sale. The Comptroller has sold these lands by descriptions other than those returned to him by the county treasurer. This by statute he is forbidden to do.

If, upon examination, the lands are "imperfectly described," the Comptroller must reject and return to the county treasurer the taxes. This he did for some years, but not all, although the several failures to comply with the statute above specified appeared upon the face of the several returns of the county treasurer made to the Comptroller. As required by statute, the Comptroller did reject the tax of 1867 because of imperfect description; also the tax of 1871 because the description is erroneous; also the tax of 1872 for a like reason. was never any reassessment or return thereof to the Comptroller from the county treasurer, yet the lands were sold for the taxes of those three years, with other years. The title of the owner was not thereby divested. Ne-ha-sa-ne Park Ass'n v. Lloyd, 167 N. Y. 431, 437, 60 N. E. 741.

There

The tax deed of 1875, following the 1871 sale, between Nelson H. Hopkins, the Comptroller of the state of New York, the first party, and the people of the state of New York, the second party, conveys "the following tracts, pieces, or parcels of land situate in the county of Hamilton, in the Totten & Crossfield's Purchase, township forty (40) -all that remains after excepting the following pieces and parcels," viz. First, 50 acres, more or less, on the westerly side of Raquette Lake, described by metes and bounds; second, 75 acres on the easterly

shore of Raquette Lake, known as the "Josiah F. Wood place"; third, "two thousand (2,000) acres undivided in all that remains of the township after excepting the fifty (50) acre and seventy-five (75) acre parcels above described, redeemed from the 1871 tax sale by E. C. Platt, of White Plains, Westchester county, New York"; fourth, all of 30 acres, more or less, being the easterly end of Indian Point; fifth, an undivided one-half of 7,000 acres in the northwesterly part of the township there being conveyed 12,219 acres, more or less. And the deed contains these words:

"Doth grant, bargain, sell, and release to the said party of the second part, and to their grantees and assigns, forever, the said pieces and parcels of land above described, with the hereditaments, appurtenances to the same belonging, to be located and laid out, however, by and at the expense of the party of the second part."

There is nothing in the deed indicating where the said undivided 2,000 acres excepted is located, except that it does not include the 50 acres and the 75 acres redeemed by Platt. There is no exception of the lands under water, or of the 1,260 acres reserved to the state. The plaintiff says these exceptions are in fact in the balance of the township not conveyed in this deed. In tax deed dated 1884 there are reserved 9,550 acres "covered by water." Using these figures, we have the following, under this deed of 1875:

-while there are but 25,600 acres in the entire township. One cannot take the deed of 1875 and determine from the description therein the part of the said township 40 intended therein to be conveyed. From this deed it could not be said that the state has shown title to the interest of Abner Benedict or of these defendants in the piece of land in question. There were such defects in the proceedings of the assessors, the board of supervisors, and the Comptroller that the sale of 1871 and the succeeding conveyance were void.

There are like defects in the proceedings leading up to the tax sales of 1877 and 1881. The deed of August 10, 1881 (following the 1877 sale), between J. W. Wadsworth, Comptroller, the first party, and the people of the state of New York, the second party, conveys the land situate in the county of Hamilton, Totten & Crossfield's Purchase, township No. 40, 13,344 acres more or less (1,100 acres more than was conveyed in the 1875 deed), being all that remains of the township after excepting therefrom 6,001 acres covered by water, and the gospel, school, and literature lands. Then follows the exception of the 50-acre piece, a 75-acre piece, a 30-acre piece, a 40acre piece, and an undivided one-half interest in the 7,000-acre piece.

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The deed of October 31, 1884 (following the 1881 sale), between Alfred C. Chapin, Comptroller, the first party, and the people of the state of New York, the second party, conveys lands in Hamilton county, Totten & Crossfield's Purchase, township 40, 11,615 acres, more or less, being all that remains of the township after excepting therefrom 9,550 acres thereof more or less covered by water. Then follows an exception of a 50-acre piece, a 75-acre piece, another 50acre piece, a 40-acre piece, a 160-acre piece, a second 160-acre piece, an undivided one-half interest in the 7,000-acre piece, and a 20-acre piece. The one-half interest in the 7,000-acre piece reserved in the two latter deeds is the interest of Beecher and Keith, so that these two deeds purport to convey the interest of Abner Benedict in the said 7,000-acre piece. But no actual sale preceded these two deeds; the land having been withdrawn from the sale on the statement of the Comptroller that the state already owned the land. The description, however, and the reservations vary materially from the description in the deed which followed the 1871 sale, under which the state then claimed its title. These tax deeds are each of them void for indefiniteness of description. The descriptions do not afford the means of identification. They would probably mislead the owner. Black, Tax Titles (2d Ed.) par. 112; Underhill v. Keirns, 54 App. Div. 214, 66 N. Y. Supp. 573, affirmed 170 N. Y. 587, 63 N. E. 1122; Zink v. McManus, 121 N. Y. 259, 265, 266, 24 N. E. 467.

The conveyances themselves being void for indefiniteness of description, they could not be conclusive evidence of title in the state. The plaintiff has not, therefore, shown title to the defendants' interest in the lands in question, and the defendants cannot be ejected. If the descriptions in the deeds could be held sufficiently definite to apparently cover the defendants' interest in the premises, still, because of fatal jurisdictional and essential defects in the assessments and proceedings previous to the deeds, the action cannot be maintained.

Plaintiff claims that, although these defects existed, the deeds are conclusive evidence of plaintiff's title under the acts of 1885 and 1896. If so, it is as curative acts or as statutes of limitations. As curative acts they cannot aid the plaintiff. Many of the defects in the proceedings preceding the delivery of the deeds are jurisdictional and essential. "While the Legislature may by subsequent enactment cure defects or irregularities in proceedings to impose a tax if they relate to requirements that the Legislature might in the first instance have dispensed with, where the proceedings are so fatally defective that no title passes, it cannot by a curative act transfer the title of one person to another." Wallace v. McEchron, 176 N. Y. 429, 68 N. E. 663; Meigs v. Roberts, 162 N. Y. 378, 56 N. E. 838, 76 Am. St. Rep. 322; Cromwell v. MacLean, 123 N. Y. 474, 25 N. E. 932.

Nor are they effective as statutes of limitations. If effective as statutes of limitations, they must have given to the defendants a reasonable time within which to assert their rights against the state, after the enactment of the law and before the limitation became absolute. The Legislature cannot deprive a party, who has been ille

gally deprived of his property, of access to the courts for relief. Gilman v. Tucker, 128 N. Y. 190, 202, 28 N. E. 1040, 13 L. R. A. 304, 26 Am. St. Rep. 464.

The plaintiff claims that the act of 1885 (Laws 1885, p. 758, c. 448) is still operative, though practically re-enacted in the law of 1896 (Laws 1896, p. 841, c. 908, § 132). Though operative, which I doubt, the law is not effective here as a statute of limitations which makes conveyances heretofore executed by the Comptroller, after having been recorded two years, conclusive evidence of the regularity of all proceedings six months after the passage of the act, without any notice to the owner and occupant. An application for cancellation of the tax sales and conveyances is only allowed (1) because the taxes were paid; (2) because the town had no legal right to assess the lands. There is no such allowance because of any jurisdictional defects such as exist in this case as to each of the sales. The state having been the purchaser, and no action being permitted by the act against the state, which without specific permission cannot be sued by a citizen (Sanders v. Saxton, 182 N. Y. 477, 75 N. E. 529, 1 L. R. A. [N. S.] 727, 108 Am. St. Rep. 826), there was not a day within which defendants could have asserted their rights as against the void sales and deeds. The act of 1885, therefore, cannot have the effect of a statute of limitations as to any of the sales in question.

Under the decision in Wallace v. McEchron, the law of 1896 is not effective as a statute of limitations here. The conveyances in this case were all recorded prior to the act of 1896, which as to them, therefore, is retrospective. The act provides that all such conveyances and the taxes and sales on which they are based shall be subject to cancellation by reason (1) of the payment of the taxes, or (2) of the levying of the tax by the town having no legal right, or (3) "of any defect in the proceedings affecting the jurisdiction on constitutional grounds." A defect, not included in (1) or (2), rendering the proceedings, sale, or conveyance void on other than constitutional grounds, is not included in this enabling part of the act; and as to such the act cannot be effective as a statute of limitations, because it gives no time within which the defendants might have asserted their rights against the state. It becomes an important matter to determine which of the existing defects are jurisdictional, affecting the proceedings other than on constitutional grounds.

The taxing of lands and their sale for nonpayment of taxes is fixed by the statute; and the statute, except in nonessentials, must be complied with in all its parts. May v. Traphagen, 139 N. Y. 481, 34 N. E. 1064; Sanders v. Downs, 141 N. Y. 422, 36 N. E. 391; Marx v. Hanthorn, 148 U. S. 180, 13 Sup. Ct. 508, 37 L. Ed. 410; Clason v. Baldwin, 152 N. Y. 210, 46 N. E. 322. Original jurisdiction is acquired by the proper preparation and completion of the tax roll by the town assessors, so that it would give the board of supervisors jurisdiction to extend and levy the tax. Any defect in this proceeding of the assessors, which failed to protect the rights of the owner or occupant (Westfall v. Preston, 49 N. Y. 353), would be a jurisdictional defect upon constitutional grounds. A failure to comply