Abbott v. Frost

• Decision Date: 02 April 1904
• Parties: ABBOTT et al. v. FROST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 398
70 N.E. 478

ABBOTT et al.
v.
FROST.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1904.

Appeal from Superior Court, Middlesex County.

Bill in equity by one Abbott and another, the present owner and mortgagee of real estate, against one Frost, alleging that certain taxes on the real estate were illegal, and that a tax sale was invalid. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Curtis [185 Mass. 399]Abbott, for appellants.

W. Adams, for appellee.

BRALEY, J.

Unless the sale of the premises described in the bill was invalid because the tax assessed had ceased to be a lien at the time of sale, there is no cloud on the title of the plaintiffs, and the suit cannot be maintained. For all of the time covered by the several assessments the property was subject to a mortgage duly recorded, but neither the mortgagor nor mortgagee brought into the assessors any statement under St. 1882, p. 131, a. 175, requiring them to ascertain and fix a value on the interest of each in the real estate, and in the absence of any compliance with this preliminary requirement it could be lawfully assessed to the mortgagor in possession. Such assessments are permitted by our laws relating to taxation, and have been held to be in strict accordance with

Robert W. Nason and Thomas W. Proctor, for plaintiff.

[70 N.E. 479]

their provisions. Pub. St. c. 11; St. 1889, p. 837, c. 84; Worcester v. Boston, 179 Mass. 41, 49, 60 N. E. 410.

Before St. 1881, p. 646, c. 304 (subsequently Pub. St. 1882, c. 11, §§ 13-15), when land subject to a mortgage was assessed to the mortgagor in possession the entire estate was assessed, and there was no division or separation of the legal and equitable titles, and the lien for the tax was as broad as the assessment. No distinction between these titles before possession by the mortgagee under foreclosure proceedings is recognized, and the tax assessed and the sale for its payment covers and includes both estates. Parker v. Baxter, 2 Gray, 185. If the object of this enactment was to prevent double taxation, and to require that the interest of each should be respectively ascertained, and in all cases they should be separately assessed or taxed as joint owners, it was subsequently amended so that, from being mandatory in terms, provision was made that real estate subject to a mortgage could be legally assessed to the owner in possession unless either the mortgagor or mortgagee had given to the assessors, within the time for bringing in lists of taxable property, a sworn statement of the amount due under the mortgage. St. 1882, p. 131, c. 175.

It is agreed that the mortgagor was in possession for...