Westhampton v. Searle

• Decision Date: 27 October 1879
• Citation: 127 Mass. 502
• Parties: Inhabitants of Westhampton v. Stephen E. Searle
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 502

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, 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 necessary that each specific item of town charges shall be named in the warrant. Sherman v. Torrey, 99 Mass. 472.

3. The tax was assessed to James M. Chapman & Son, and was so entered on the tax list which accompanied the assessors' warrant to the collector. The valuation list is in the usual form, with spaces left against the name of the person taxed, in which are stated the polls, personal property, buildings and land for which the assessment is made. In the collector's deed to the town, it is recited that the tax was assessed in the tax list to James M. Chapman, and that payment was demanded of him. It appeared at the trial that Chapman was in possession of the premises as mortgagor when the tax was assessed, but that the tenant in this action was mortgagee in possession for foreclosure at the time of the commencement of this action. By the Gen. Sts. c. 11, § 8, taxes on real estate must be assessed to the owner or to the person in possession of the land. But by the Gen. Sts. c. 12, § 6, if in the assessors' list, or in the warrant and list committed to the collector, there is an error in the name of a person taxed, the tax assessed to him may be collected of the person intended to be taxed, if he is taxable, and can be identified by the assessors.

In Tyler v. Hardwick, 6 Met. 470, which was an action to recover back a tax paid by compulsion, and where the error consisted in the insertion of the surname only of the tax-payer in the valuation list and in the tax list committed to the collector, Shaw, C. J., expressly recognizing the importance of requiring that all should pay their just proportion of the public charges, and not escape by slight mistakes and frivolous objections, declared that the statute was intended to apply to a case where the error in the name exists as well in the valuation as in the assessors' warrant to the collector. "The statute," he said, "is plain and explicit, and covers all cases of error in the name, and was intended, we think, to apply to a case where the name is mistaken by omitting, as well as by adding or by misnaming. The only things required are, that the person shall be liable to taxation, and be in fact the person intended to be taxed under such designation. These facts must of necessity be proved by evidence aliunde. The fact of the identity of the party, and the intention of the assessors, must in general be proved by them." "It is not to be overlooked, that such errors will, in most cases, arise from the default of the tax-paying inhabitant himself, who fails to perform the duty, required by law, of giving in his name and list to the assessors." See also Trustees of Greene Foundation v. Boston, 12 Cush. 54; Sargent v. Bean, 7 Gray 125; Commissioners' note to the Rev. Sts. c. 8, § 5.

It is further evidence of the intention of the Legislature in this respect that by the Gen. Sts. c. 12, § 36, it is provided that the owner shall have a right to redeem land sold for payment of taxes at any time after actual notice of the sale, when there is any error in the name of the person intended to be taxed. Faxon v. Wallace, 98 Mass. 44.

The demandant at the trial called as a witness one of the assessors, who stated that there was no such partnership as James M. Chapman & Son, but that one of the sons was living at home at the time of the assessment, and the assessors adopted a custom of the town, in assessing the property in such cases to the father, adding the words "and son" only to indicate that the son was charged a...