and 140 New York State Reporter

claimed paid the petitioner's legacy in full. From this affidavit it appears that Francis Anderson died in 1883, leaving a last will and testament in and by which he bequeathed all of his personal estate to his widow, said Nancy Anderson; that at the time of his death he had certain money on deposit in a savings bank, which under his will passed to his widow, who did not in her lifetime withdraw or take possession of it, and upon her death, subsequent to that of her husband, it was discovered that such money was on deposit to the credit of "Francis Anderson"; that upon inquiry at the bank affiant was informed that the money would not be paid to any person other than the executor of said Francis Anderson, and on August 31, 1899, the petitioner as such executor withdrew said deposit, then amounting to $4,567.50, from which he seems to have retained $3,000 and paid the balance to the executor of Nancy Anderson. The affidavit further states:

"That said Peter Anderson has requested this deponent to file his account as executor of said Nancy Anderson, but deponent up to the present time has refused so to do until said Peter Anderson pays over to this deponent the whole money withdrawn by him from said savings bank for distribution by deponent under the last will and testament of said Nancy Anderson, deceased."

In denying petitioner's motion the learned surrogate wrote no opinion, and there is nothing in the record indicating the grounds upon which he based his decision. It is well settled that the statute does not commence to run in favor of a trustee or executor, against one otherwise entitled to an accounting, until such representative has by some act openly repudiated his trust and liability. Matter of Ashheim, 111 App. Div. 176, 97 N. Y. Supp. 607, affirmed without opinion 185 N. Y. 609, 78 N. E. 1099. We are unable to find in this record any act of the executor that would set the statute of limitations running in his favor. He shows that he is yet engaged in the discharge of his duties as executor by instituting a proceeding to recover money claimed by him to belong to the estate of testatrix, that he might distribute it under the provisions of her will, and in his affidavit says, substantially, that he does not propose to account until such money is paid to him. We think the petitioner is entitled to have the questions presented by his petition and the answer of the executor determined in Surrogate's Court, and that right is not barred by the statute of limitations. It may be, however, that the evidence will disclose that the statute has run; but that does not appear in this record. The executor seems to rely on the mere lapse of time, which is not of itself a defense to the petitioner's attempt to compel him to account, and such question should not be decided before the accounting is had. Matter of Irvin's Estate, 68 App. Div. 158, 74 N. Y. Supp. 443; Matter of Ashheim, supra; Matter of Meyer, 181 N. Y. 553, 74 N. E. 1120.

The order of the Surrogate's Court is reversed, and an order directing the respondent to render and settle his account in the Surrogate's Court of the county of Kings granted, with costs to the appellant payable out of the estate. All concur.

(55 Misc. Rep. 425.)

PEOPLE v. GOLDING et al. (two cases).

(Supreme Court, Special Term, Hamilton County. July, 1907.)

1. EJECTMENT-AFTER-ACQUIRED TITLE-SUPPLEMENTAL ANSWER.

In ejectment by one claiming under a Comptroller's tax deed against a defendant who, claiming under a conveyance from another defendant executed after the commencement of the action, was permitted to set up by supplemental answer the title thus acquired under an order, unreversed, imposing costs upon him, which were paid to and accepted by the plaintiff's attorneys. Held, that the allegations of the supplemental answer were properly within the issue, allowing proof thereof to be received at the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Ejectment, § 231.] 2. TAXATION-DEFECTS-ASSESSMENT.

Failure of assessors to verify the assessment roll made by the town assessors is a jurisdictional defect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 747.] 3. SAME.

Where land is assessed as that of nonresidents, and is an entire tract, which has not been subdivided, failure to describe a part of the tract not liable to taxation, and failure to designate unoccupied parts of the tract where part of it is occupied, are jurisdictional defects.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 728.)

4. SAME-EXTENSION OF TAX.

Failure of the supervisors to extend the tax after preparation of the assessment roll is a jurisdictional defect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 736.} 5. SAME-SALE EN MASSE.

The sale en masse of lands assessed as nonresident land, in which various persons have different interests, without specifying the owner or interest, is a jurisdictional defect.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1354.] 6. SAME-DEFECTIVE DESCRIPTIONS.

Sale of lands by the Comptroller by descriptions other than those returned to him by the county treasurer is a jurisdictional defect. 7. SAME-COMPTROLLER'S DEED.

Failure of the Comptroller's deed to indicate the location of lands excepted from the general description of the land sold is a jurisdictional defect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §8 15191521.]

8. SAME-SALE-PREVIOUS PAYMENT of Tax.

Where one tax has been paid on lands, the sale for double assessment is a jurisdictional defect.

9. SAME.

The sale of more lands than are covered by the assessment is a juris dictional defect.

10. SAME-INDEFINITE NOTICE OF SALE.

Where the lands are so indefinitely described in the notice of sale as to be incapable of identification, it is a jurisdictional defect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1339.}

11. SAME-DEED WITHOUT SALE.

Where the lands are withdrawn by the Comptroller from sale on a statement that they belong to the state, a conveyance given without any actual sale is a nullity.

and 140 New York State Reporter

12. SAME-DEED-EVIDENCE OF TITLE.

Where lands have been withdrawn by the Comptroller from sale on the statement that they belong to the state, and thereafter a conveyance is given of such lands, the deed is not conclusive evidence of plaintiff's title under Laws 1885, p. 758, c. 448, and Laws 1896, p. 841, c. 908, § 132. [Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1556.] 13. SAME--SALE TO STATE-LIMITATIONS.

Laws 1885, p. 758, c. 448, substantially re-enacted by Laws 1896, p. 841, c. 908, § 132, makes a conveyance by the Comptroller on sale to the state, after it has been recorded for two years, conclusive evidence of the regularity of all proceedings six months after the passage of the act without notice to the owner or occupant. Held not effective as a statute of limitations, as the remedy it affords by an action to cancel the deeds is not applicable to jurisdictional defects, nor available to the owner on sale to the state, since no action is permitted against the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1557.] 14. SAME-RETROSPECTIVE LEGISLATION.

Laws 1896, p. 841. c. 908, § 132, making conveyances executed by the Comptroller, after having been recorded for two years, conclusive evidence of the regularity of proceedings, is not effective as a statute of limitations as to conveyances recorded before its passage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1557.] 15. SAME.

Laws 1896, p. 841, c. 908, § 132, making conveyances by the Comptroller conclusive after two years, is repugnant to the Constitution, as giving no time within which an owner's rights against the state may be asserted, except as to the specific grounds for which it provides for canceling taxes and sales, which remedy is not given to the owner, but only to the purchaser.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1557.] 16. TENANCY IN COMMON-OCCUPATION BY CO-TENANT.

A tenant cannot by injunction exclude his co-tenant from occupation of the lands held in common.

Actions by the people against John N. Golding and Mabel Golding and against John N. Golding and William B. Benedict. Complaints dismissed.

Lewis & McKay, for the People.

Frank L. Bell, for defendants.

VAN KIRK, J. Action No. 1 is an action in ejectment brought to recover possession of a piece of land bordering on the west shore of Raquette Lake northerly of Brown's Tract Inlet. This piece of land is part of that which is in the case called the 7,000-acre tract, being a tract in the northwest portion of township 40, Totten & Crossfield's Purchase. The plaintiff claims title under three tax deeds, viz.: First, a deed under the tax sale for 1871. dated February 1, 1875, and recorded May 30, 1877; second, a deed under the tax sale for 1877, dated August 10, 1881, and recorded June 12, 1882; third, a deed under the tax sale for 1881, dated August 31, 1884, and recorded April 9, 1887. The 1871 tax sale was for taxes assessed for the years 1861 to 1865, inclusive; the 1877 tax sale, for the years 1867, 1868, and 1869; the 1881 tax sale, for the years 1871, 1872, and 1873.

Township 40 was conveyed by the state to Robert G. Livingston. August 14, 1786, reserving to the state, however, 5 acres out of each 100 acres (amounting to 1,260 acres) for highway purposes. The

township is stated to contain 25,200 acres. In 1851 this Livingston title went to Abner Benedict. On July 21, 1852, Abner Benedict still owned an undivided one-half interest of the 7,000-acre tract, and Beecher and Keith the other undivided half. On said date he conveyed to Mead, Sackett, Hay, and Platt an undivided one-fifth interest in said tract, reserving a one undivided four-fifths part thereof, which was a reservation of the one-half interest then belonging to Beecher and Keith and a three-tenths interest (2,100 acres) to himself. There is a dispute between the parties as to the lands and interests conveyed in the said deed of July 21, 1852; and it is not necessary to determine the exact interest which Abner Benedict had in the said 7,000-acre tract, further than to say that at the time of his death he did own an undivided interest in said tract, and therefore was, at the time of his death, a tenant in common with the other owners in the premises in question in this action.

The plaintiff claims that, at the time of the beginning of the action, the defendants had no interest in the ground title to said piece of land. and therefore, under the decision in the Ladew Case, could not question the validity of the state's title under the aforesaid tax deeds. On January 8, 1904, the heirs at law of Abner Benedict conveyed to the defendant Golding an undivided interest in the premises in question; and the defendant Golding is now the owner of said undivided interest coming from Abner Benedict. The defendant Mabel Golding is the wife of the defendant John N. Golding. By an amended supplemental answer, permitted by an order, still unreversed, of the court at Special Term, the defendants have set up their title under the said deed. of January 8, 1904. This action was begun in 1901. It is an action at law. The title procured by the defendants in 1904 was subsequent to the beginning of the action. The plaintiff claims that the said deed. though pleaded, is not competent or proper evidence in the case, and that the case must be decided upon the facts as they existed at the time of the beginning of the action. The order allowing the service of the amended supplemental answer imposed costs, which costs have been paid and received by the plaintiff's attorneys. The defendant has obtained leave to serve the pleading from a court which has imposed terms, and the terms have been accepted by the plaintiff. The matters. therefore, set forth in the supplemental answer, are properly within the issue. Bennett v. Lawrence, 71 App. Div. 413, 75 Ñ. Y. Supp. 902; Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y. 137; Smith v. Rathbun, 75 N. Y. 122. The defendants, therefore, are in a position to contest the title of the state under the said tax deeds.

The evidence shows many serious defects in the proceedings, both in making the assessments and in making the sales, which render the sales void. These same tax deeds have been under review in the courts a number of times, and particularly in the cases of People of the State of New York v. Joseph H. Ladew, tried before Arthur L. Andrews. Esq., referee (on appeal, 108 App. Div. 356, 95 N. Y. Supp. 1151), and of People of the State of New York v. Horace Inman and of People of the State of New York v. Hasbrouck, tried before John L. Henning, Esq., as referee.

and 140 New York State Reporter

The assessment roll for township 40 for the year 1861 is as follows: "A list and description of resident lands assessed for taxes in the town of Long Lake in the year of our Lord one thousand eight hundred and sixtyone, Totten & Crossfield's Purchase:

40

....

100

150

3.50

50

200

4.00

...

Kellogg, Cyrus H., being on the Carthage road on the north side of Raquette Lake on the north line of Township 40, 50....... "Township No. 40, not allotted, and bounded as follows: northeasterly by township No. 39, easterly by township No. 35, southerly by township No. 6, and westerly by township Nos. 5 and 41, containing 17,334 acres, valued at sixty cents per acre."

The assessment-roll for township 40 for the year 1862 is as follows: "A list and description of resident lands assessed for taxes in the town of Long Lake in the year of our Lord one thousand eight hundred and sixtytwo, Totten & Crossfield's Purchase:

"Township No. 40, not allotted, and bounded as follows: northerly by township No. 39, easterly by township No. 35, southerly by township No. 6, westerly by township Nos. 5 and 41, contains 17,209 acres and valued at sixty cents per acre."

The assessment rolls for 1861, 1862, and 1865 are in evidence, and the returns of the county treasurer for each of the years. The plaintiff claims that "the assessment rolls are all substantially alike," and the returns of the county treasurer conform, in description of lands assessed, to the assessment rolls.

The assessors, in making out the assessment roll, have failed to follow the statute. They have failed to verify the roll as required. The verification in March of the roll for 1861 could not be in compliance with the statute, as the time for making the verification had not arrived. The assessors are required to ascertain the taxable property in their town between the 1st day of May and the 1st day of July, and on the third Tuesday of August are required to meet and hear complaints and review and correct their roll. The roll for 1862 has no verification. In Westfall v. Preston, 49 N. Y. 349, 354, 355, it is held that an affidavit made on the 29th day of July was a nullity; and, the defect appearing upon the face of the paper, it conferred no jurisdiction upon the board of supervisors to impose a tax upon persons or property named therein. Until the assessment has the sanction of the assessors' oath, it has no validity as an assessment, and it cannot form the basis of taxation. People v. Suffern, 68 N. Y. 326.

During the years for which the 1871 tax sale was had various persons owned interests in lands and pieces of lands in the said township, and various pieces were occupied. On the tax roll of 1861 resident lands were assessed to Josiah Wood and Cyrus H. Kellogg. At the same time the entire township by boundaries is assessed as lands of nonresidents; the said pieces assessed as resident land being in