Carr v. Dooley

• Decision Date: 04 January 1876
• Citation: 119 Mass. 294
• Parties: Patrick Carr v. Edward Dooley
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 294

Patrick Carr v. Edward Dooley

Supreme Court of Massachusetts

January 4, 1876

Argued January 13, 1875

Middlesex.

Case to stand for trial on both counts.

C. R Blaisdell, for the plaintiff.

D. S Richardson, (G. F. Richardson with him,) for the defendant.

Colt J. Ames & Endicott, JJ., absent.

OPINION

Colt

The first count in the plaintiff's declaration is upon the covenant against incumbrances contained in the defendant's deed to him. It alleges that the plaintiff has been obliged to pay an assessment for a sewer, which was a lien on the estate when the deed was made. The deed is dated June 8, 1870. The sewer was constructed under the provisions of the St. of 1869, c. 111, in pursuance of a resolution of the mayor and aldermen passed in May previous, directing "that a common sewer be laid in Cedar Street, from the Crosby Street sewer to Keene Street the size of the sewer to be twelve inches in diameter." No question was made at the argument that this was not a sufficient location, and we must so regard it. Bennett v. New Bedford, 110 Mass. 433. The assessment was not made until after the deed was delivered.

It is objected that the liability to an assessment when the deed was made was not an incumbrance upon the land within the meaning of the covenant, because, by the terms of the Gen Sts. c. 48, § 5, assessments are only made a lien on the real estate "for one year after they are laid."

Upon this question, the construction to be given to the statute must be such as accords with the interpretation given by this court to similar provisions relating to the collection of taxes. By the Gen. Sts. c. 12, § 22, taxes assessed on real estate are declared to be a lien thereon for two years after they are committed to the collector; and yet, in Cochran v. Guild, 106 Mass. 29, in answer to the objection that they were not an incumbrance until so committed, it was held that they were so from the first of May, the date of their assessment, because the land then became liable for their payment.

In Jones v. Aldermen of Boston, 104 Mass. 461, where the question was, whether the St. of 1868, c. 276, which repealed § 5 of the St. of 1866, c. 174, with a clause saving all rights and liabilities which had accrued under it, affected an existing liability to be assessed in proceedings for widening a street commenced before the repeal, but under which no assessment had then been laid, it was declared that the right of the landowner to damages, and his liability to assessment for benefit, accrued at the time of the widening, although the assessment of damages and the adjudication of the amount of benefit must of necessity be made afterwards. The act under which the proceedings for widening the street in that case were had provided that all assessments should constitute a lien on real estate, to be enforced in the manner provided for the collection of taxes; thus adopting the provision of the Gen. Sts. c. 12, which makes them a lien on the estate for two years after they are committed to the assessor. See also Prince v. Boston, 111 Mass. 226.

In Blackie v. Hudson, 117 Mass. 181, it was held, under the Sts. of 1866, c. 174, and 1868 c. 276, that the liability to an assessment of the expenses of widening a street was an incumbrance thereon from the time of the order of...