last will and testament. SECOND. That the plaintiffs as such trustees now are, and ever since their appointment as such have been, the owners in fee and in possession of the fol lowing described parcels of land, to wit: 10 ALL those certain tracts or parcels of land, situate in Franklin County, State of New York, being the southwest one-quarter of Lot number Forty-one (41), and west one-half of Lot Number Forty-nine (49) of Township Twelve (12), Great Tract Number One (1), Macomb's Purchase; containing three hundred and seventy-five (375) acres, more or less. THIRD. That the lands above described were acquired by purchase from the then owners by said Albert J. Milbank, deceased, in or about the years 1896 and 1897, by deeds duly recorded in the office of the 11 Clerk of Franklin County, and from the time of the acquisition of said lands to the date of the death of said Albert J. Milbank, were owned in fee, possessed and occupied by the said Albert J. Milbank, and that said property passed by the last will and testament of Albert J. Milbank, deceased, to the plaintiffs herein as trustees and has ever since been owned, possessed and occupied by them as such. FOURTH. That the said Albert J. Milbank was not at any time during his life a resident of the tax district in which the real estate hereinabove described is situated, but was continuously during his entire life12 time a resident of the City of New York, in the County and State of New York. FIFTH. That at the tax sale held by the Comptroller of the State of New York in the year 1905, eighteen (18) acres square in the southwest corner of the southwest quarter of Lot Number Forty-one (41), Township Purchase, Franklin County, and fifty-four (54) acres, being the north end of the west half of Lot Forty-nine (49), Township Twelve (12) Great Tract Number One (1), Macomb's Purchase, Franklin County, were sold for alleged unpaid taxes due thereon to the defendant 13 herein, and a tax deed, dated February 4, 1907, purporting to convey said lands was made and delivered by Martin H. Glynn, Comptroller, to the defendant herein, which said deed was recorded in the Office of the Clerk of Franklin County on March 26th, 1907, in Liber of Deeds 129, at page 591. SIXTH. That at the tax sale held by the Comptroller of the State of New York in the year 1910, the southwest quarter of Lot Forty-one (41), Township Twelve (12) Great Tract Number One (1) Macomb's Purchase, Franklin County, and the northwest quarter 14 and southwest quarter of Lot Forty-nine (49), Township Twelve (12), Great Tract Number One (1) Macomb's Purchase, Franklin County, were sold for alleged unpaid taxes due thereon, to the defendant herein, and a tax deed, dated April 24, 1912, purporting to convey said lands was made and delivered by William Sohmer, Comptroller, to the defendant herein, which said deed was recorded in the office of the Clerk of Franklin County, on May 7, 1912, in Liber of Deeds No. 144, at page 310. SEVENTH. Upon information and belief that in the years and each of them, for the non-payment of taxes of which the lands above described were sold by the Comptroller at the 1905 and 1910 tax sales, as aforesaid, the proceedings for the assessment of the lands above described by the Assessors of the Town of Duane, Franklin County, the levy of the taxes thereon by 16 the Board or Supervisors of the County of Franklin, the warrant for the collection of said taxes issued by the Board of Supervisors to the Town Collector, the return of the Town Collector to the County Treasurer, and the return of the County Treasurer to the State Comptroller were invalid, void and defective, and con16 trary to the statute in such case made and provided for the reason, among others, that the warrant annexed to the tax roll by the Board of Supervisors is not under the seal of the County of Franklin, and conferred no jurisdiction upon the Board of Supervisors of the County of Franklin to levy the taxes thereon, conferred no jurisdiction or authority upon the Town Collector to collect the taxes alleged to have been levied thereon, and conferred no jurisdiction upon the Comp troller to sell said land for the non-payment of said 17 taxes, and the sale thereunder was invalid, void and of no effect, and the conveyance of said lands alleged to have been sold at the 1905 and 1910 tax sales, as aforesaid, transferred no title to the defendant herein. EIGHTH. That at all times from the date when the said lands were acquired by the said Albert J. Milbank, deceased, as above described, to the date of his death the said lands were in the actual lawful and exclusive use, possession and occupancy of the said Albert J. Milbank, deceased, and that at all the times since the date of his death the said lands have been 18 and now are in the actual, lawful and exclusive use, possession and occupancy of the plaintiffs herein, and that neither the said Albert J. Milbank, deceased, nor the plaintiffs were at any time given notice that said taxes for the non-payment of which said lands were sold as aforesaid, were assessed, levied or payable, and that no notice of sale or of the conveyance of the lands as aforesaid has ever been served upon the said Albert J. Milbank, deceased, or upon the plaintiffs herein or upon any other person upon whom such service is to be made as provided by statute, and no evidence of such notice has been filed in the office of the Comptroller of the State of New York, and no proof of the service of 19 such notice has been recorded in the County Clerk's Office in Franklin County with the deed conveying said lands to the defendant herein, as required by the statute in such case made and provided, and that said deeds and the record thereof in the County Clerk's Office of Franklin County are null, void and of no effect, and transfer no title to the lands above described to the defendant herein. NINTH. That the said deeds to the defendant by the State Comptroller as aforesaid, under the statute, are upon their face valid and create a title which ap- 20 pears to be paramount to that of the plaintiffs and by virtue of which the defendant now claims and asserts that the ownership of said lands has vested in him; that in fact said deeds are invalid, and the State Comptroller has no power or authority to make such sales or said conveyances; that said conveyances can only be shown to be invalid by evidence extrinsic to the conveyances themselves; that said deeds and the claim of ownership of the defendant thereunder constitute a cloud upon the title of the plaintiffs in and to said lands which diminishes their value and interferes with the 21 sale thereof, and for which the plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs demand judgment that the said deeds of the State Comptroller to the defendant and the record thereof in the Office of the County Clerk of Franklin County, so far as they relate to the lands above described, be declared invalid, null and void and set aside; that the defendant surrender said deeds, so issued to him by the State Comptroller for cancellation, and that same be adjudged to be cancelled of rec ord; that the plaintiffs be adjudged to be the true and 22 lawful owners of said lands, and that the plaintiffs have such other and further relief as to the court may seem proper, together with the costs of this action. ELLIS J. STALEY, Attorney for Plaintiffs, Tweddle Building, Albany N. Y STATE OF NEW YORK, SS. : County of New York, 23 ALBERT G. MILBANK, being duly sworn, deposes and says, that he is one of the plaintiffs in this action; that he has read the foregoing summons and complaint and knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. ALBERT G. MILBANK. Sworn to before me this i7th day of April, 1914. (L. S.) H. BARTON FARR, 24 Notary Public, New York County, No. 1228, New York Registers, No. 5213. |