127 Mass. 502 (Mass. 1879), Westhampton v. Searle

Citation:127 Mass. 502
Opinion Judge:Colt, J.
Party Name:Inhabitants of Westhampton v. Stephen E. Searle
Attorney:W. G. Bassett, for the tenant. D. W. Bond, for the demandant.
Judge Panel:Colt, J. Endicott & Soule, JJ., absent.
Case Date:October 27, 1879
Court:Supreme Judicial Court of Massachusetts

Page 502

127 Mass. 502 (Mass. 1879)

Inhabitants of Westhampton

v.

Stephen E. Searle

Supreme Court of Massachusetts

October 27, 1879

Argued September 18, 1878

Hampshire. Writ of entry to recover a parcel of land in Westhampton. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Aldrich, J., who ordered judgment for the demandant; and the tenant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

W. G. Bassett, for the tenant.

D. W. Bond, for the demandant.

Colt, J. Endicott & Soule, JJ., absent.

OPINION

Colt, J.

The demandant claims title under a tax collector's deed, the land being sold for the non-payment of a tax, appearing on the tax list to be assessed, for the year 1875, to James M. Chapman & Son. The various objections made by the tenant to the validity of the sale, and to the demandant's claim of title under it, will be treated in their order.

1. The St. of 1862, c. 158, requires that the poll tax assessed for town, county and state purposes, except highway taxes, separately assessed, shall not exceed two dollars. See also St. 1876,

Page 503

c. 88. When the first-named statute was passed, towns had the power to raise money for the repair of highways, to be paid in labor and materials, and to be collected by the highway surveyor. Gen. Sts. c. 44, § 3. But recently, by the St. of 1871, c. 298, all highway taxes are abolished, and all sums needed for repairs are required to be assessed upon polls and estates, like other town charges. The town assessors, after this statute, were certainly not obliged to make a separate highway tax. When this tax was assessed, the Gen. Sts. c. 11, § 31, required that, as nearly as may be, one sixth of the whole sum to be raised should be assessed upon the polls, not exceeding the limit above named. The amount actually assessed in this case was two dollars on each poll, being less than one sixth of the whole tax; and there is nothing in the case to show in this respect any illegality. Besides, for a mere error or irregularity in the apportionment, by which a party is assessed more or less than his due proportion, it is provided by statute that no sale, contract or levy shall be avoided, and the party injured is left to his action against the town to recover back the excess. Gen. Sts. c. 11, §§ 53, 54; c. 12, § 56. Cone v. Forest, 126 Mass. 97.

2. The article in the warrant for the town meeting, under which this money was raised and appropriated, was sufficient. It gave notice that the town would be called on "to raise such sums of money as may be necessary to defray town charges for the ensuing year." This includes money raised for interest, and such part of the town debt as was or might become due during the year. It is not...

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