Barker v. MaCkay

• Decision Date: 27 February 1897
• Citation: 46 N.E. 412,168 Mass. 76
• Parties: BARKER v. MacKAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 76

46 N.E. 412

BARKER v. MacKAY.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1897

COUNSEL

William

Odlin, for plaintiff.

Edward H. Pierce, for defendant.

OPINION

LATHROP J.

This is a bill in equity, filed in the superior court on September 8 1895, to redeem certain land in Boston, which was sold by the collector of taxes on September 17, 1890, for nonpayment of taxes. The only question presented is whether the superior court had jurisdiction in the case, the judge below having refused to rule, as requested by the defendant, that that court had not jurisdiction. A decree was entered for the plaintiff, and the case comes before us on a report, by the terms of which, if the superior court had jurisdiction, the decree is to be affirmed; otherwise the bill is to be dismissed with costs.

In Mitchell v. Green, 10 Metc. (Mass.) 101, argued in 1845, it was held that the supreme judicial court had no jurisdiction in equity of a bill for the redemption of land sold for payment of taxes. The remedy was to tender the amount due and, if the tender was refused, to bring a writ of entry. Rand v. Robinson, 11 Cush. 289. By St.1849, c. 213 § 2, it was provided: "In all cases of sales of real estate for the payment of taxes, the supreme judicial court shall have full equity powers." Under this statute the court exercised the power granted. Simonds v. Towne, 4 Gray, 603. See, also, Rand v. Robinson, ubi supra. By St.1856, c. 239, § 4, it was provided: "In all cases of sale of real estate for the payment of taxes assessed thereon, the supreme judicial court shall have equity powers provided relief be sought within five years from such sale." By section 6, St.1849, c. 213, is repealed. The Statutes of 1856 appear in Gen.St. c. 12, § 42, with no change of language except the word "if" is used instead of the word "provided." Chapter 12 relates to the collection of taxes. There is no specific mention of the subject in section 2 of chapter 113, which relates to the general equity jurisdiction of the court. Faxon v. Wallace, 98 Mass. 44, and Gladwin v. French, 112 Mass. 186, were decided under Gen.St. c. 12. In the Public Statutes the provision again appears in the chapter relating to the collection of taxes (Pub.St. c. 12, § 66), and does not appear in chapter 151, which relates to the general equity jurisdiction of this court. By St.1877, c. 178, § 1, it was provided: "The supreme judicial court shall have jurisdiction in equity of all cases and matters in equity, cognizable under the general principles of equity jurisprudence; and in respect of all such cases and matters, shall be a court of general equity jurisdiction." This is now incorporated in Pub.St. c. 151, § 4. The superior court first obtained jurisdiction in equity by St.1883, c. 223. Section 1 provides: "The superior court shall have original and concurrent jurisdiction with the supreme judicial court in all matters in which relief or discovery in equity is sought, with all the powers and authorities incident to such jurisdiction." By section 2 it is provided that all the sections of Pub.St. c. 151, except certain sections named, among which is section 1, shall apply to suits in equity in the superior court. Section 1, c. 151, Pub.St., provides: "In addition to the jurisdiction in equity otherwise conferred, the supreme judicial court shall have original and exclusive jurisdiction," etc. St.1888, c. 390, entitled "An act to amend and codify the statutes relating to the collection of taxes," by section 95 expressly repeals, among other acts, Pub.St. c. 12, but the same section provides: "The provisions of this act, so far as they are the same as those of existing laws, shall be construed as a continuance of such laws, and not as new enactments." Section 76 is as follows: "In all cases of taking or sale of real estate for the payment of taxes, assessed thereon, the supreme judicial court shall have equity powers, if relief is sought within five years from the taking or sale." This is simply a repetition of Pub.St. c. 12, § 66, and, according to the language of section 95, is to be construed as "a continuation of such law." It would seem, therefore, that if the superior court had jurisdiction of such a petition as the one before us, such jurisdiction would not be repealed by implication by section 76. It is unnecessary, however, to decide this point, for we are of opinion that the superior court never had such jurisdiction. The effect of St.1883, c. 223, § 1, was considered in Baldwin v. Wilbraham, 140 Mass. 459, 4 N.E. 829, where it was held that a petition by 10 taxable inhabitants of a town, to restrain the town from an illegal expenditure of money, could not be brought in the superior court. It was said by Chief Justice Morton: "The language of the statute is broad, and, without doubt, it was intended to confer upon the superior court concurrent jurisdiction in equity in all suits between individuals involving private rights, of which the supreme judicial court has jurisdiction by virtue of the general...