Choate v. Bd. of Assessors of City of Boston

• Decision Date: 28 November 1939
• Parties: CHOATE v. BOARD OF ASSESSORS OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 298

23 N.E.2d 882

CHOATE

v.BOARD OF ASSESSORS OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1939.

Appeal from decision of the Appellate Tax Board.

Proceeding by Lucy E. Choate, by the Massachusetts Hospital Life Insurance Company, mortgagee in possession, against Board of Assessors of City of Boston for abatement of an assessment. From an adverse decision of the Appellate Tax Board, the Massachusetts Hospital Life Insurance Company appeals.

Petition dismissed.

S. D. Ferguson, of Boston, for taxpayer.

E. K. Nash, Asst. Corp. Counsel, of Boston, for Board of Assessors.

RONAN, Justice.

Lucy E. Choate on April 1, 1933, was the owner of certain premises in Boston which were subject to a mortgage held by the Massachusetts Hospital Life Insurance Company. An officer of the company spoke to her about the foreclosure of the mortgage and she said, ‘Well, I can't do anything more. You will have to do what you think best about it.’ He informed her that she should have applied for an abatement and she replied, ‘I'm through, I will have to leave.’ The mortgage was roreclosed on September 22, 1933, and the insurance company took possession. The company on December 5, 1933, filed with the assessors an application for an abatement which was signed ‘Lucy E. Choate, by Massachusetts Hospital Life Insurance Company, mortgagee in possession.’ It was signed by one who described himself as the actuary of the insurance company and gave his address with a law firm with which he was associated. The tax was paid by the company on May 14, 1934. The assessors took no action upon the application within four months and an appeal from the failure of the assessors to grant an abatement was filed with the Appellate Tax Board by the company on May 25, 1934. This appeal was signed ‘Lucy E. Choate by Massachusetts Hospital Life Insurance Company, Mortgagee in possession by her attorneys,’ followed by the names of the attorneys. The board found that the company was not acting as agent of the owner in filing the application. It ruled that the company could not bring any application for an abatement until after it had paid the tax; and that the board had no jurisdiction to hear the appeal. But it stated that if it were authorized to determine the matter then it found that the fair cash value was a certain amount, which was less than one half of the assessed valuation.

The appellant sets forth three assignments of error in its claim of appeal: (1) That the board erred in ruling that the company did not act as agent of the owner in filing the application for abatement; (2) that the board erred in ruling that the company was not entitled to file an application for abatement and to prosecute an appeal in the name of the owner without having first paid the tax; and (3) that there was error in the ruling that the right of the company to file an application and prosecute an appeal in the name of the owner had been superseded by St.1933, c. 165, § 1.

The scope of an appeal from the board to this court is defined and limited by G.L.(Ter.Ed.) c. 58A. § 13. This section expressly provides that such an appeal lies only ‘as to matters of law’ raised before the board, and that its decision as to findings of fact is final. Lucy E. Choate did not testify before the board, and the only evidence bearing upon the question of agency between her and the company in filing the application consisted entirely of her conversation with the actuary of the company, which has already been stated. The basis of the finding that the company was not acting as agent of the owner in filing the application is disclosed by the record, and whether the conclusion reached by the board, which could have rested only upon this conversation, was warranted was a matter of law. It was a ‘question of law’ within the terms of the statute. Commissioner of Corporations & Taxation v. J. G. McCrory Co., 280 Mass. 273, 278, 182 N.E. 481;Board of Assessors v. Garland School of Home Making, Mass., 6 N.E.2d 374;Assessors of Weston v. Trustees of Boston College, Mass., 6 N.E.2d 363.

The existence of the relationship of principal and agent and the authority of the latter to represent the former are questions of fact if there is evidence of an appointment by the principal and a delegation to the agent of duties to be performed by him for the principal, or if the conduct of the parties is such that an inference is warranted that one was acting in behalf of and with the knowledge and consent of another. Hartford v. Massachusetts Bowling Alleys, Inc., 229 Mass. 30, 118 N.E. 188;R. T. Adams Co. v. Israel, 244 Mass. 139, 138 N.E. 319;Hamilton v. Coster, 249 Mass. 391, 144 N.E. 226;Capitol Amusement Co. v. Gallagher, 268 Mass. 321, 167 N.E. 674.

The owner had come to the conclusion that she was unable to avoid a foreclosure of the mortgage and that the mortgagee would have to do whatever it considered advisable concerning the foreclosure. When it was suggested that she ought to have applied for an abatement she stated, in substance and effect, that she had no further interest in the property and would have to leave it. She did not seek or accept the aid of the mortgagee to assist her. She had made up her mind to abandon the property. She did not intend to request an abatement of the tax and there is nothing to warrant a belief upon the part of the mortgagee that she desired an abatement. It was not shown that she ever knew an application was filed with the assessors. The finding of the board that the company did not act as agent of the owner in filing the application was free from error. Shea v. Gurney, 163 Mass. 184, 39 N.E. 996,47 Am.St.Rep. 446;Jean v. Cawley, 218 Mass. 271, 105 N.E. 1009;T. D. Downing Co. v. Shawmut Corp. of Boston, 245 Mass. 106, 139 N.E. 525, 27 A.L.R. 1522;Potter v. Aiden Lair Farms Association, 225 Mass. 97, 113 N.E. 1035;Broitman v. Silver, 270 Mass. 24, 169 N.E. 501;Coulombe v. Horne Coal Co., 275 Mass. 226, 175 N.E. 631.

We pass now to the second and third assignments of error. The Appellate Tax Board ruled that the mortgagee could not ‘bring an application for abatement of a tax assessed against the record owner on April 1, 1933, without first having paid the entire tax.’ That ruling must be construed in conjunction with the previous ruling that the company did not act as the agent of the owner in filing the application. The ruling now complained of is not a ruling that the company could not file such an application in the name of the owner if it had been authorized to do so. Neither is it a ruling that the company could not file such an application in the name of the owner on account of St.1933, c. 165, § 1.

The only remedy available to a taxpayer to secure a reduction of his annual property tax on the ground that the assessment is excessive is by proceedings for an abatement under G.L.(Ter.Ed.) c. 59, § 59. Central National Bank v. Lynn, 259 Mass. 1, 7, 156 N.E. 42;Commonwealth Investment Co. v. Brookline, 268 Mass. 32, 167 N.E. 227;Maley v. Fairhaven, 280 Mass. 54, 181 N.E. 798. An essential step in that procedure is the filing of an application with the assessors. The failure to file such an application bars relief. And an application that does not comply with the requirements of the statute is ineffectual. Central National Bank v. Lynn, 259 Mass. 1, 156 N.E. 42;Board of Assessors of Boston v. Suffolk Law School, Mass., 4 N.E.2d 342.

The application was not filed by the owner or in her behalf. We need not consider if she could, subsequently to its filing, ratify the action of the company in filing it and enforce a claim for a reduction of the tax, because she has never sought an abatement of the tax. The company, however, filed the application in her name, paid the tax five months afterwards, and then entered an appeal with the board in the name of the owner. At that time, G.L.(Ter.Ed.) c. 59, § 59, which gave the owner to whom a tax was assessed the right to seek and secure an abatement, had been amended by St.1933, c. 165, § 1, by the addition of the following sentence: ‘If a person other than the person to whom a tax on real estate is assessed is the owner thereof, or has an interest therein, or is in possession thereof, and pays the tax, he may thereafter prosecute in his own name any application, appeal or action provided by law for the abatement or recovery of such tax, which after the payment thereof shall be deemed for the purposes of such application, appeal or action, to have been assessed to the person so paying the same.’ The section as amended must be read as a unit. Before this amendment, the mortgagee, whether considered as a...