This is an action of ejectment brought to recover a tract of 7,500 acres of forest land, known as the northwest quarter of township 24, Great Tract One, Macomb's Purchase, situated in Franklin county, in the northern district of the state of New York.
The plaintiff deraigned title by various mesne conveyances from one Daniel McCormick, who became the grantee of the state of New York in 1798. The defendant claims through deeds executed to the state of New York in pursuance of sales for taxes.
The defendant also set up as a defense a six months' statute of limitations contained in chapter 448 of a law enacted in 1885, certain statutes against champerty, the illegal organization of the plaintiff in error, and a former adjudication made on an application to cancel one of the tax sales under which the state claimed title.
The first sale upon which the title of the state is based was made in 1877 for unpaid taxes of 1866 to 1877, inclusive. A certificate was issued dated October 18, 1877, showing a sale to the state of the whole of the northwest quarter for the sum of $2,756.40, and subsequently a deed in the usual form, and dated June 9, 1881, which was recorded in Franklin county clerk's office June 8, 1882.
The subsequent sales were made respectively in 1881 for the unpaid taxes of 1871 to 1876; in 1885 for those of 1877 to 1879; in 1890 for those of 1881 to 1885. At all of the sales except the first one the property was treated as already state property, and struck off to the state without giving opportunity for bids. Certificates and deeds were duly issued to the state in pursuance of the sale of 1881 and 1885 in due form, and duly recorded in the clerk's office of the proper county. A certificate alone was issued in pursuance of the sale of 1890.
The taxes for the years 1866 and 1867 were assessed against the whole quarter as one parcel. In the years 1868, 1869, and 1870 the whole quarter was not assessed, and so much of it as was assessed was placed upon the rolls in two parcels, and described as follows:
'Township 24, Great Tract One, Macomb's Purchase; N. W. 1/4, excepting 1,000 acres, lying in N. W. corner; also 1,215 acres which is water, leaving 5,285 acres.
'Macomb's Purchase, Great Tract One, township 24, 1,000 acres, lying in the northwest corner of northwest quarter.'
There was evidence tending to show that on the tract in controversy there were bodies of water, but no part of them was within the parcel of 1,000 arces laid out in a square form in the northwest corner.
In December, 1894, the defendant caused a notice to be published once a week for three successive weeks in a newspaper published in Franklin county, of which the following is a copy:
To whom it may concern:
Notice is hereby given that the following is the list of wild, vacant forest lands located in the county of Franklin to which the state holds title, and that from and after three weeks from the 22d day of December, 1894, possession thereof will be deemed to be in the comptroller of this state, pursuant to the provisions of section 13 of chapter 711, Laws of 1893.
William J. Morgan,
Deputy Comptroller.
The list attached to this notice contained the land in question.
When the testimony in the case was closed the counsel for each of the respective parties, with the approval of the court, admitted that there was no question of fact in the case to be submitted to the jury; that the issues depended upon the construction that the court should give to the law; and thereupon the jury was discharged, and a written stipulation waiving a jury trial was signed by the attorneys of record for the respective parties, and filed with the clerk.