Supreme Court, February, 1918. [Vol. 102. because the referee had held, as Judge Bartlett said, "The defendant proved title to the island in question by adverse possession against the original owner." The Webb deed could not then be effective. * * The defendants claim these deeds are void for champerty. Prior to 1909, section 260 of the Real Property Law contained this provision: "A grant of real property is absolutely void, if at the time of the delivery thereof such property is in the actual possession of a person claiming under a title adverse to the grantor." It is the settled law of this state that, to avoid a deed under the statute, the adverse possession must be under a claim of some specified title, not necessarily a good title, but still a paper title as distinct from a general assertion of ownership - a title under some written instrument purporting to convey the land to the claimant, or some judgment, decree or executed process of the court. Green v. Horn, 207 N. Y. 492. When the deeds of 1899 and 1909 were delivered, the islands were not in the actual possession of any person claiming under a title adverse to that of the grantor. But, if we assume that the defendants or either of them claimed under a title adverse to the grantor of the state, defendants' claim is untenable. Under the statute the state could have instituted its action in the name of its grantor. Code Civ. Pro. § 1501. There being a number of deeds claimed to be champertous, this would delay, complicate and confuse, but it would not avoid, the issue. In 1910 this statute (Real Prop. Law, § 260) was amended by adding this: "The provisions of this section do not apply to a grant of such property made to the people of the state of New York, nor to a person where the title granted to such person shall thereafter by grant or mesne conveyance become vested in said people." The amendment gave the state the right to try these titles in its Misc.] Supreme Court, February, 1918. own name rather than in that of its grantor. This change affects not the merits, but the procedure only; and, though this amendment was made after the former action was begun, it has not deprived the defendants of any meritorious defense. Saranac L. & T. Co. v. Roberts, 125 App. Div. 333, 345. "It is a general rule that, in the absence of words of exclusion, a statute which relates to the form of procedure or the mode of attaining or defending rights, is applicable to proceedings pending or subsequently commenced." Matter of Davis, 149 N. Y. 545. This amendment is retroactive in its application, though not so declaring affirmatively. Peace v. Wilson, 186 N. Y. 403; Laird v. Carton, 196 id. 169. The amendment is valid and the state deeds are not void. Real Prop. Law, § 260; Code Civ. Pro. § 1501; Saranac L. & T. Co. v. Roberts, supra; Crary v. Goodman, 22 N. Y. 170; Matter of Davis, 149 id. 539; Whiting v. Edmunds, 94 id. 313, 314. It follows that the plaintiff may maintain this action. While the foregoing views, if correct, dispose of the case, the attorneys have argued at length another question and seem entitled to learn the views of the court thereon. What right has the state against the defendants under its purchase of these islands at the tax sale of 1871 and its deed in 1875, recorded in 1877 ? At the time of that sale, the Tax Law of 1855 (Laws of 1855, chap. 427) was in force. Under its provisions the comptroller was required to execute a certificate of sale and deliver it to the purchaser. Two years from the last day of the sale were allowed for redemption by the owner or occupant of the premises. After the period of redemption had expired, upon written application of the purchaser, the comptroller was required to make and deliver a deed of the premises to the purchaser. Laws of 1855, chapter 427, section 68, con Supreme Court, February, 1918. [Vol. 102. tains this provision: "Whenever any lot or separate tract of land sold for taxes by the comptroller, and conveyed as herein before provided, shall, at the time of the expiration of two years given for the redemption thereof, or any part thereof, 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, within two years from the expiration of said time to redeem; no conveyance made in pursuance of this section shall be recorded, until the expiration of such notice, and the evidence of the service of such notice shall be recorded with such conveyance. The occupancy which requires such notice must be "at the time of the expiration of the two years given for the redemption thereof," in this case September, 1873. The essential question is, Were the lands then in the actual occupancy of any person? The definition of an occupant" is in the statute (Laws of 1893, chap. 711, § 14, an act passed later than the time in question here, but being declaratory of the meaning of the word "occupant" it is controlling for the past as well as the future) and is as follows: "The term occupant shall be construed to mean such a person who has lawfully entered upon the lands so occupied and is in possession of the same to the exclusion of every other person; and the term occupancy shall mean the actual, lawful and exclusive use and possession of such lands and premises by such an occupant." The word " lawful," as used, means under some right to enter, either as owner or claiming adversely, or as tenant of the owner, or under some judgment or executed process of the court. In 1873 Mr. Dunning was not in such lawful possession; he was not in possession to the exclusion. of every other person until after 1874, nor was he so in possession as a tenant of, or representing, Murray. 66 Misc.] Supreme Court, February, 1918. Murray was not an occupant, though he then had a camp there. A camper is not an occupant within the above definition; nor is one who, without color or claim of title, enters and takes possession. It is true there should be a liberal construction of this statute, on behalf of a true claimant to the land, or of one in good faith holding in adverse possession, but, if he has no real claim or interest, a liberal construction cannot aid him. To be entitled to notice, the land must be occupied within the definition in the statute. People ex rel. Marsh v. Campbell, 143 N. Y. 335; People ex rel. Chase v. Wemple, 144 id. 478; Ostrander v. Reis, 206 id. 448; Matter of Rourke v. Metz. 139 App. Div. 155; affd., 202 N. Y. 604; People ex rel. Moynehan v. Gaus, 134 App. Div. 80; affd., 198 N. Y. 501. There was then no occupant of this island in September, 1873, to whom notice was required to be given by the purchaser, and the deed was properly recorded. The comptroller's deed under the statute is presumptive evidence of the regularity of the sale and that all notices to the end of the redemption period have been given. Tax Law, § 131. The holder of this deed has then a presumptive legal title; but, if the land was occupied at the expiration of the redemption period, notice to redeem must be given to such occupant by "the grantee to whom the same (the land) shall have been conveyed." Thus the purchaser at the tax sale must procure his deed and give the required notice to the occupant. If such notice is not given, what is the penalty? It is fixed by statute: "No deed made in pursuance of this section shall be recorded until the expiration of such notice and the evidence of the service of such notice shall be recorded with the conveyance." If the notice is required and is not given within two years, then of course the notice can never be served within the required time, the record of the Supreme Court, February, 1918. [Vol. 102. deed can never become valid, the title can never become absolute and the Statute of Limitations in the Tax Law can never run against the occupant. The service of the notice is a condition precedent to procuring a valid record of the deed and an absolute title to the purchaser at the tax sale, but it is not a condition precedent to recording the deed and procuring a presumptive legal title. As soon as received, the deed may be recorded, even though there is in fact an occupant and the notice was not given. This deed, which must be executed and delivered before the notice is given, is to be recorded in the clerk's office of the county where the land is situated. The statute provides the clerk no means of learning whether or not the land is occupied, nor does it require any proof as to occupancy, or that it is not occupied, when the deed is offered for record. The purchaser's deed then, when offered for record properly executed, must be recorded; and, if the land is unoccupied, the record is valid. We are thus in this position: the record of one deed may be both valid and void, as the proof may later show in any case. This deed of 1875, for example, covers thousands of acres of land. Here and there a small tract may have been occupied; the great part, so far as this record shows at least, is wild, vacant, forest land- unoccupied land. As to this vacant part, the record is valid. In People v. Ladew, 190 N. Y. 544, on reargument, when the question was pointedly presented, the Court of Appeals directly so held, saying: "that such record (not the deed) was ineffective as against the defendant in this action in reference to the particular land which is the subject of the litigation," but not in reference to unoccupied lands. I take that to be the true construction of the decision in Ostrander v. Reis, supra, and that Judge Gray means, as he states, that "the record was absolutely void. The |