Bertram v. Bertram

• Decision Date: 10 October 1923
• Citation: 141 N.E. 99,246 Mass. 377
• Parties: BERTRAM v. BERTRAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 377

141 N.E. 99

BERTRAM

v.BERTRAM.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 10, 1923.

Exceptions from Superior Court, Worcester County; G. A. Sanderson, Judge.

Suit by Karl Bertram against Roscoe W. Wilbur to compel release of defendant's interest under a tax deed as a cloud on plaintiff's title, and suit by Roscoe W. Wilbur against Karl Bertram to restrain defendant from claiming any interest in the property and compelling him to release all claims. Finding for Bertram in each case, and Wilbur brings exceptions. Exceptions overruled.

The tax sale was made September 27, 1913, and the deed October 1, 1913. In the suit of Bertram against Wilbur the bill was filed September 26, 1919, and subpoena was issued returnable at the November return day, but it was not served, and on September 28, 1921, a new subpoena was taken out, which was served. The mortgage, under foreclosure of which Bertram claimed, was made in 1885, and assigned in 1909 to Emily Bertram, who in 1912 sold the property under the power of sale to Karl Bertram. At the trial Wilbur excepted to the introduction of the mortgage, because more than 20 years had elapsed between the date of the mortgage and the date of the proceedings under which Bertram claimed, and requested rulings that there was no evidence that Bertram made any entry within 20 years after the right of entry accrued, or after he or those under whom he claimed became seized or possessed of the premises, and also rulings on the theory that the suit to attack the tax sale was barred by limitations. He also excepted to certain of the court's findings.J. F. Neal, of Boston, for Bertram.

Carney, Blake & Simonds, of Gardner, for Wilbur.

BRALEY, J.

The deed of the collector of taxes under which Wilbur, who has entered into possession, claims title to the premises described in the bill of complaint was invalid. The assessment to the George Blanchard heirs, who appeared of record as owners of the property, was lawfully levied. But while the deed recites that demand for payment was made on them, the statute then in force required the collector to state the ‘name of the person on whom the demand * * * was made.’ St. 1909, c. 490, pt. 2, §§ 14, 44; Conners v. Lowell, 209 Mass. 111, 118, 95 N. E. 412, Ann. Cas. 1912B, 627. The ruling of the presiding judge that the deed was fatally defective was right. The deed having been recorded, the title of Bertram, who claimed to be the owner of the property, was clouded, and he asks in his bill that Wilbur be ordered to release all his right, title and interest derived from the conveyance of the collector. Smith v. smith, 150 Mass. 73, 22 N. E. 437;Sawyer v. Cook, 188 Mass. 163, 170, 74 N. E. 356. The bill is not a bill to redeem from a valid tax sale, and the statute limiting such suits to 6 years from the date of sale, on which the defendant relies in his answer, is inoperative. St. 1909, c. 490. pt. 2, § 76; Smith v. Smith, 150 Mass. 73, 22 N. E. 437;Barker v. Mackay, 168 Mass. 76, 79, 46 N. E. 412. The defense of laches although not pleaded is also urged. But assuming that this defense is open, the suit in which the defendant entered a general appearance having been begun within 6 years after the plaintiff discovered the invalidity of the sale, no unreasonable delay is shown....