Abbott v. Frost

• Decision Date: 02 April 1904
• Citation: 70 N.E. 478,185 Mass. 398
• 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

COUNSEL

Curtis Abbott, for appellants.

W Adams, for appellee.

OPINION

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.

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 the whole period, and it does not appear that either he or the mortgagee made any effort to have the respective interest of each assessed. Unless either complied with the statutory provision made for their benefit, they need not be deemed joint owners, and a tax otherwise lawfully imposed did not become invalid because the mortgagee had not been recognized in the assessment. Worcester v. Boston, ubi supra; Cummins v. Christie, 179 Mass. 74, 60 N.E. 396, 88 Am. St. Rep. 357. If a sale follows, it is commensurate with the tax lien, for in theory the taxing power assesses with one hand, and at the same time demands payment with the other, and, if the assessment is valid, a sale for its collection properly made is also valid. Hill v. Bacon, 110 Mass. 387.

At the time these taxes were assessed, and when the sale took place St. 1888, p. 366, c. 390, § 30, as amended by St. 1889, p. 1023, c. 334, § 9, provided that, '* * * if such tax remains unpaid for fourteen days after demand therefor, it may with all incidental charges and fees be levied by sale of the real estate within said two years, or after the expiration of said two years, if the estate has not been alienated prior to the giving of the notice of such sale.' When a sale of real property under this and similar statutes is made for taxes lawfully assessed, the entire title or interest in the land passes to the grantee by the deed of the collector, and it does not become essential to inquire whether his title is to be considered as the result of all previous titles, and which are transmitted to him by operation of law, or a new title conferred under a taking by the sovereign power to enforce a public right to which property under our Constitution is generally made subject. See Harrison v. Dolan, 172 Mass. 395, 398, 52 N.E. 513; Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N.E. 763, 86 Am. St. Rep. 473. Such a lien constitutes a charge or incumbrance on the land without which it could not be sold, and at any time within the limitation a sale or conveyance would vest in the purchaser an absolute title to the whole estate, freed from the mortgage which...