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assignees of choses in action, who are required to give notice of the assignment or transfer. Their rights are then effectually secured. But suppose the land redeemed, the certificates then become ineffectual, so far as the land is concerned; but the money paid into the treasury remains there for him whose right it is to receive, and the same rule of practice would enable the owner of the certificate to obtain money which would secure to him the land, in case no redemption had been made.”
In answer to this part of the report of the committee, it may be remarked, in the first place, that although the certificates of the Comptroller may not be technically negotiable, yet the practice of the office has made them, to all intents and purposes, negotiable; and they are so considered by all persons who are familiar with the transactions connected with the sales of lands for taxes.
2. The committee say that the Comptroller is to give a deed to the purchaser, “unless he has evidence that the right of the purchaser has been transferred."
The practice of this office, however, is, and has been, to require evidence of the purchaser that he has not transferred his right. And this evidence is furnished by the production of the certificate without an endorsement. The turning point in this whole matter is, whether the Comptroller shall accept any other proof than the certificate itself, that the original purchaser has not transferred his right. The applicant himself concedes that he is to furnish the proof that there has been no transfer, and he furnishes the best evidence next to the certificate itself. If there was a general provision in the statute relating to the assessment and collection of taxes, that the Comptroller, on the production of satisfactory proof that a certificate was lost, should execute a dced to the purchaser, there would be no difficulty in the case of Judge Elmendorf. And the existence of such a provision would relieve the question from embarrassment, because the statute itself would be sufficient notice to all concerned, of the contingencies under which their purchases were made.
3. In case of redemption, the committee say that the “ certificates then become ineffectual, so far as the land is concerned; but the money paid into the treasury remains there for him whose right it is to receive, and the same rule of practice would enable the owner of the certificate to obtain the money which would secure to him the land."
The rule of this office is to require the same evidence for paying redemption money out of the treasury, as is required for giving a deed. The purchaser of lands at the tax sales, when those lands are redeemed, is required to produce the original certificate before he can draw the money from the treasury. And if the certificate has been transferred, the holder produces the certificate, which is received as satisfactory proof that he is entitled to the money, and in all cases, the original certificate is attached to the warrant drawn upon the treasury to refund to the purchaser or his assignee the moneys paid to redeem lands sold for taxes.
The committee conclude that the law now furnishes an ample remedy for the claimant; because, if the Comptroller refuses to give the deed, the claimant can compel him by an application to the supreme court. This, however, would be attended with expense; and in the opinion of the Comptroller it would be better to grant relief in the few cases in which certificates may be lost, by special acts of the Legislature, than to unsettle the practice which has so long governed the granting of deeds by the Comptroller, and which is universally understood by all the parties interested in these transactions.
If the Comptroller should give a deed without the production of the certificate, and relying upon the entry in the sales book, might not the person who should hold the certificate duly assigned, apply to the supreme court, and obtain a mandamus to compel the Comptroller to execute a deed, in fulfilment of his promise in the certificate?
If the Legislature directs a grant to a person, other than the one who is equitably entitled to it, the power of redressing the in. jury is in the same body. But not so with the Comptroller or the
If in the opinion of the Legislature the rule which has been adopted in the Comptroller's office, and adhered to for so many years, in relation to granting deeds, is too rigid, and that a true construction of the law requires a different rule, it would be satisfactory to the Comptroller to have a declaratory law on the sub
ject. If it is considered proper that the Comptroller shall grant deeds and pay redemption money on receiving proof of the loss of a certificate, it is desirable that a general law may be passed, saying so in distinct terms.
All which is respectfully submitted.
A. C. FLAGG.
April 10, 1833
Of the Attorney-General, concerning the power of
the Legislature in providing for vacancies in the office of justice of the peace.
April 10, 1833.
To the SPEAKER OP THE ASSEMBLY.
In pursuance of a resolution of the Assembly, I submit here. with a report, concerning the power of the Legislature in providing for vacancies in the office of justice of the peace.
Your obedient servant,
GREENE C. BRONSON.