Charland v. Trustees of Home For Aged Women

• Decision Date: 21 February 1910
• Citation: 204 Mass. 563,91 N.E. 146
• Parties: CHARLAND v. TRUSTEES OF HOME FOR AGED WOMEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 563

91 N.E. 146

CHARLAND v. TRUSTEES OF HOME FOR AGED WOMEN.

Supreme Judicial Court of Massachusetts, Worcester.

February 21, 1910

COUNSEL

Edward J. McMahon, for plaintiff.

Henry F. Harris and Winfred H. Whiting, for defendant.

OPINION

LORING J.

The power to sell property for nonpayment of taxes is strictissimi juris, and a failure to comply with the statutory requirements, even in minute particulars, is fatal. See, for example, Alexander v. Pitts, 7 Cush. 503; Knowlton v. Moore, 136 Mass. 32; Spring v Cambridge, 199 Mass. 3, 85 N.E. 160. The tax deeds in question in the cases of Reed v. Crapo, 127 Mass 39, Barnes v. Boardman, 149 Mass. 106, 21 N.E. 308 3 L. R. A. 785, and Downey v. Lancy, 178 Mass. 465, 59 N.E. 1015, were cases where the tax title was attacked for defects of this kind.

There was no defect of this kind in the case at bar. The sale was duly made and the statutory requirements were all complied with. If the title here in question is void, it is void because although the sale was valid the deed is not in due form.

At common law a deed under a power is valid if it conveys the property and the power to execute it is proved aliunde. See, for example, Harrington v. Worcester, 6 Allen, 576, 579.

But the form of a tax deed in Massachusetts is a matter which has been regulated by statute for more than a century. St. 1785, c. 70, § 7; Rev. St. 1836, c. 8, § 31; Gen. St. 1860, c. 12, § 35; Pub. St. 1882, c. 12, § 38; St. 1888, c. 390, § 43; Rev. Laws, c. 13, § 43. It has been established law for a long time that a tax deed is void which does not contain the statements prescribed by the statute.

One of the facts which must be set forth in a tax deed is (and always has been, see St. 1785, c. 70, § 7) a statement of 'the cause of sale.' Rev. Laws, c. 13, § 43. It was held in Harrington v. Worcester, 6 Allen, 576, that by this is meant a statement of such facts as show that there was a legal cause of sale. The plaintiff's contention is that the tax title here in question is bad because (1) the deed does not state that the assessment for state, county and city taxes assessed upon Maria L. S. De Vaudreuil as owner of the land conveyed by the deed was assessed by the assessors of the city of Worcester, and because (2) it is not there stated that this was included in the tax list committed by the assessors with their warrant to the collector in accordance with Rev. Laws, c. 12, § 67.

The deed is in the form authorized by St. 1901, c. 519. It is identical with that form with one exception, to wit: It begins with a statement that the grantor was collector of taxes for the city of Worcester. But the form authorized by St. 1901, c. 519, ends with a statement to that effect. The repetition of that statement at the beginning of the deed is of no consequence. St. 1901, c. 519, was repealed in terms by Rev. Laws, c. 227. The question of the validity of the deed here in question therefore depends upon its being a 'suitable' one within the provision of Rev. Laws, c. 13, § 87, that 'other suitable forms may also be used.'

In determining whether this deed sets forth a legal cause of sale with sufficient accuracy, no reliance can be put on the use of the word 'duly.' The deed must state facts and not the collector's opinion as to facts, or (as it is usually put) a tax deed must state facts and not conclusions of law. Bender v. Dugan, 99 Mo. 126, 12 S.W. 795; Moore v. Harris, 91 Mo. 616, 4 S.W. 439; Spurlock v. Allen, 49 Mo. 178; Duncan v. Gillette, 37 Kan. 156, 14 P. 479; Henderson v. White, 69 Tex. 103, 5 S.W. 374; Maddocks v. Stevens, 89 Me. 336, 337, 36 A. 398; Cooley on Taxation (3d Ed.) 998, 999; Blackwell on Tax Titles, § 778. The tax deed in question in O'Grady v. Barnhisel 23 Cal. 287, followed the words of the statute.

Again, in determining what is a suitable form (apart from a form allowed by statute) it is proper to consider what forms have been used in practice. The form most commonly used in Massachusetts is that set forth in the report in Adams v. Mills, 126 Mass. 278, to wit: 'Whereas, the assessors of taxes of ----- in the list of assessments for taxes which they committed to me to collect for the year --- duly assessed ----- as owner of the real estate in said city which is hereinafter described, the sum,' etc. It appears from the report of Pixley v. Pixley, 164 Mass. 335, 41 N.E. 648, and from the original papers in Lunenburg v. Heywood, 118 Mass. 540, Reed v. Crapo, 127 Mass. 39, Knowlton v. Moore, 136 Mass. 37, and Langdon v. Stewart, 142 Mass. 576, 8 N.E. 605, that the deeds in those cases were in the same form. The deed in Harrington v. Worcestor, 6 Allen, 576, and the form authorized by St. 1888, c. 390, § 96, form 14, and by Rev. Laws, c. 13,§ 87, form 14, are not materially different.

The singular thing about these deeds and all the forms of tax deeds set forth in the statutes is that although the issuance by the assessors of their warrant to the collector is the foundation of a legal right to collect the taxes committed by them to him and so is the foundation of a legal cause of sale, no form and no deed that has come to our attention states in terms that the assessors issued their warrant to the collector. (For the form of such a warrant, see St. 1785 c. 50, § 6.) Under these circumstances it could not be held that the statement of a legal cause of sale in the deed here in question is insufficient because...