By the Court, Cowen, J.
If the question of constructive possession were material, there can be no doubt that on the evidence given, the judge properly left the question to the jury, whose finding must be received as conclusive.
The plaintiff claims to have made title by operation of the statute, 1 R. S. 399 to 401, 2d ed.; and the only question of any difficulty is, whether, within that statute, notice be necessary to the actual occupant of any part of an entire tract sold to pay non-resident taxes, before the comptroller’s deed shall become absolute in respect to any other [552]*552part, even though it be at the time vacant. The several provisions of the statute under which the plaintiff claims are, 1 R. S. 400, 401, as follows : “ § 84, [sec. 83.] Whenever any land sold for taxes by the comptroller, and conveyed as hereinbefore provided, shall, at the time of conveyance, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, stating in substance the sale and conveyance, the person to whom made, and the amount of the consideration money mentioned in the' conveyance, with the addition of thirty-seven and an half per cent, on such amount, and the further addition of the sum paid for the comptroller’s deed ; and stating also, that unless such consideration money and the said thirty-seven and an half per cent., together with the sum paid for the comptroller’s deed, shall be paid into the treasury for the benefit of such grantee, within six months after the service of such notice, that the conveyance of the comptroller will become absolute, and the occupant, and all othersQ interested in the land, be forever barred from all right or title thereto.” “ § 86, [sec. 85.] The occupant, or any other person, may at any time, within the six months mentioned in such notice, redeem the said land, by paying into the, treasury such consideration money, with the addition of thirty-seven and an half per cent, thereon, and the amount that shall have been paid for the comptroller’s deed ; and every such redemption shall be as effectual as if made before the conveyance of the lands sold.” “ § 88, [sec. 87.] In every such case of actual occupancy, the -grantee, or the person claiming under him, in order to complete his title to the land conveyed, shall file with the comptroller the affidavit of some person who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice as is above required was duly served, specifying the mode of service. § 89, [sec. 88.] If the comptroller shall be satisfied' by such affidavit, that" the notice has been duly served, and if the moneys required to be paid for the redemption of such land, shall not have been paid into the [553]*553treasury, he shall certify the fact, and the conveyance before made by him shall thereupon become absolute; and the occupant, and all others interested in the said lands, shall be forever barred of all right and title thereto.” Looking at this statute, no doubt can arise that the judge correctly restrained the recovery to the vacant and unoccupied land. Philips being found in possession of the house at the time, the comptroller’s deed would be inoperative as to that, according to the common understanding of the act, until notice of the purchase and default to pay the taxes: and such default proved and certified at the comptroller’s oEce. This was held in Jackson ex dem. Watson v. Esty, 7 Wendell, 148, on a consideration of the various provisions now consolidated in the revised statutes. A compliance with all the terms prescribed to the purchaser, after the date of his deed, was by that case made necessary without any qualification arising from the character of the occupancy. There was no claim or color of title; and an actual waiver by the tenant of all notice was proved. No disclaimer which he can make, according to that case, can be received as of force, to maintain an ejectment even against himself. The deed though issued from the comptroller’s oEce with every apparent solemnity, carrying a title on its face, and made by § 82 of 1 R. S. p. 399, 400, 2d ed. conclusive evidence that the sale was regular, according to the provisions of the law, is yet standing alone, a mere nullity in respect to the occupant. I collect all this from the language of the late Chief Justice, at page 150 of Jackson v. Esty; and indeed no other view of the conveyance would warrant the decision in that case. The defendant was a mere squatter, claiming no title, and offering to purchase of the lessors of the plaintiff—a set of facts, which per se, and even without such deed, would have entitled them to recover. According to my remembrance, on that cause going down for trial again, it was so contended, and the lessors tried to keep the comptroller’s deed out of view, and recover on Esty’s admission alone. But to prevent an ingenious evasion of the decision at bar by the plaintiff stopping after the admission and disclaimer had been shown, I allowed the [554]*554defendant himself to prove the deed, and then directed the jury to find against his admission. The late chief justice says. at the page cited, that such a deed carries- a contingent title, depending on the notice, &c. as a condition sttbseqent; and so, indeed, it does when the condition is looked to in its chronological order; but for the purpose of giving effect to the deed, I think he would have added that it was a condition precedent to all intents and purposes, and that without showing affirmatively the literal performance of it, the.deed still remained mere waste paper, of no more effect than the sale under a mortgage power without advertisement, or the sale for United States taxes in Jackson ex dem. Cook v. Shephard, 7 Cowen’s R. 88, to which the chief justice referred. We want no case beyond that to show the great strictness with which the forms under which a title is to be divested by a sale for taxes must be pursued.
The difficulty, with us circuit judges', who were called' upon in the first instance to act upon the statute, lay in the novel-form under which the condition came to us. A deed from, the state, authorized by statute, and made conclusive of its own regularity, purporting to transmute the title, and actually delivered out to the purchaser, is yet made a mere escrow to-be available on the performance of a precedent condition. Look:ng at the ordinary legal effect of such a deed, under the-statutory provisions, w'e should say it carried the title, which-, would be defeasible by the actual occupant paying the tax,, after notice to him, or some other person paying for him; and that the right to redeem in that way (for the word redeem. is used in the statute) would be limited to the actual occupancy, and was intended for the benefit of the owner. Jackson-v. Esly had particular reference to the rights of the owner, and would not allow the actual occupant to waive the notice-, to his prejudice.
Next came the question on the meaning of the words actual occupancy; for it was only when the lands sold were in that state that notice was necessary. In Comstock v. Beardsley, MS.
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By the Court, Cowen, J.
If the question of constructive possession were material, there can be no doubt that on the evidence given, the judge properly left the question to the jury, whose finding must be received as conclusive.
The plaintiff claims to have made title by operation of the statute, 1 R. S. 399 to 401, 2d ed.; and the only question of any difficulty is, whether, within that statute, notice be necessary to the actual occupant of any part of an entire tract sold to pay non-resident taxes, before the comptroller’s deed shall become absolute in respect to any other [552]*552part, even though it be at the time vacant. The several provisions of the statute under which the plaintiff claims are, 1 R. S. 400, 401, as follows : “ § 84, [sec. 83.] Whenever any land sold for taxes by the comptroller, and conveyed as hereinbefore provided, shall, at the time of conveyance, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, stating in substance the sale and conveyance, the person to whom made, and the amount of the consideration money mentioned in the' conveyance, with the addition of thirty-seven and an half per cent, on such amount, and the further addition of the sum paid for the comptroller’s deed ; and stating also, that unless such consideration money and the said thirty-seven and an half per cent., together with the sum paid for the comptroller’s deed, shall be paid into the treasury for the benefit of such grantee, within six months after the service of such notice, that the conveyance of the comptroller will become absolute, and the occupant, and all othersQ interested in the land, be forever barred from all right or title thereto.” “ § 86, [sec. 85.] The occupant, or any other person, may at any time, within the six months mentioned in such notice, redeem the said land, by paying into the, treasury such consideration money, with the addition of thirty-seven and an half per cent, thereon, and the amount that shall have been paid for the comptroller’s deed ; and every such redemption shall be as effectual as if made before the conveyance of the lands sold.” “ § 88, [sec. 87.] In every such case of actual occupancy, the -grantee, or the person claiming under him, in order to complete his title to the land conveyed, shall file with the comptroller the affidavit of some person who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice as is above required was duly served, specifying the mode of service. § 89, [sec. 88.] If the comptroller shall be satisfied' by such affidavit, that" the notice has been duly served, and if the moneys required to be paid for the redemption of such land, shall not have been paid into the [553]*553treasury, he shall certify the fact, and the conveyance before made by him shall thereupon become absolute; and the occupant, and all others interested in the said lands, shall be forever barred of all right and title thereto.” Looking at this statute, no doubt can arise that the judge correctly restrained the recovery to the vacant and unoccupied land. Philips being found in possession of the house at the time, the comptroller’s deed would be inoperative as to that, according to the common understanding of the act, until notice of the purchase and default to pay the taxes: and such default proved and certified at the comptroller’s oEce. This was held in Jackson ex dem. Watson v. Esty, 7 Wendell, 148, on a consideration of the various provisions now consolidated in the revised statutes. A compliance with all the terms prescribed to the purchaser, after the date of his deed, was by that case made necessary without any qualification arising from the character of the occupancy. There was no claim or color of title; and an actual waiver by the tenant of all notice was proved. No disclaimer which he can make, according to that case, can be received as of force, to maintain an ejectment even against himself. The deed though issued from the comptroller’s oEce with every apparent solemnity, carrying a title on its face, and made by § 82 of 1 R. S. p. 399, 400, 2d ed. conclusive evidence that the sale was regular, according to the provisions of the law, is yet standing alone, a mere nullity in respect to the occupant. I collect all this from the language of the late Chief Justice, at page 150 of Jackson v. Esty; and indeed no other view of the conveyance would warrant the decision in that case. The defendant was a mere squatter, claiming no title, and offering to purchase of the lessors of the plaintiff—a set of facts, which per se, and even without such deed, would have entitled them to recover. According to my remembrance, on that cause going down for trial again, it was so contended, and the lessors tried to keep the comptroller’s deed out of view, and recover on Esty’s admission alone. But to prevent an ingenious evasion of the decision at bar by the plaintiff stopping after the admission and disclaimer had been shown, I allowed the [554]*554defendant himself to prove the deed, and then directed the jury to find against his admission. The late chief justice says. at the page cited, that such a deed carries- a contingent title, depending on the notice, &c. as a condition sttbseqent; and so, indeed, it does when the condition is looked to in its chronological order; but for the purpose of giving effect to the deed, I think he would have added that it was a condition precedent to all intents and purposes, and that without showing affirmatively the literal performance of it, the.deed still remained mere waste paper, of no more effect than the sale under a mortgage power without advertisement, or the sale for United States taxes in Jackson ex dem. Cook v. Shephard, 7 Cowen’s R. 88, to which the chief justice referred. We want no case beyond that to show the great strictness with which the forms under which a title is to be divested by a sale for taxes must be pursued.
The difficulty, with us circuit judges', who were called' upon in the first instance to act upon the statute, lay in the novel-form under which the condition came to us. A deed from, the state, authorized by statute, and made conclusive of its own regularity, purporting to transmute the title, and actually delivered out to the purchaser, is yet made a mere escrow to-be available on the performance of a precedent condition. Look:ng at the ordinary legal effect of such a deed, under the-statutory provisions, w'e should say it carried the title, which-, would be defeasible by the actual occupant paying the tax,, after notice to him, or some other person paying for him; and that the right to redeem in that way (for the word redeem. is used in the statute) would be limited to the actual occupancy, and was intended for the benefit of the owner. Jackson-v. Esly had particular reference to the rights of the owner, and would not allow the actual occupant to waive the notice-, to his prejudice.
Next came the question on the meaning of the words actual occupancy; for it was only when the lands sold were in that state that notice was necessary. In Comstock v. Beardsley, MS.
The notice, the default, the proof and certificate of the comptroller being a precedent condition imposed, as we have seen, whenever there is occupied land covered by the deed, it is then impossible to divide or apportion that condition, and say it is dispensed with in respect to the unseated [557]*557lands, and the deed shall therefore avail as to them, though void as to the seated part. In the same way, where there are various occupants in severalty, the condition cannot be performed by piece-meal, being fulfilled as to A. though not as to B., and so on through the alphabet. If otherwise, the conveyance, which is also an entire thing, might be brought into existence by parts in the same way. It is said in Co. Litt. 215, a, that a condition is an entire thing and cannot be divided. He instances the case of a condition subsequent; but I can find in the books no attempt to apportion a legal title upon the ground that only some part of the condition precedent on which it was to arise had been performed.
In the case at bar, Philips was in possession of a small part of the land sold for taxes; and no notice having been given, we are of opinion that on the true construction of the statute, the deed was inoperative as to every part of the tract included in it. On that ground there must be a new trial.
Since reported, 15 Wendell, 348.