City of Boston v. Barry

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 53 N.E.2d 686,315 Mass. 572
• Decision Date: 01 March 1944
• Parties: CITY OF BOSTON v. BARRY et al.

315 Mass. 572
53 N.E.2d 686

CITY OF BOSTON
v.
BARRY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1944.

Petition by the City of Boston against Anna M. Berry and another to the land court by the city as holder of a tax title for the foreclosure of all rights of redemption. From the judgment, both parties appeal.

Reversed.

[53 N.E.2d 686]

Appeals from Land Court, Suffolk County; J. Fenton, Judge.

Before FIELD, C. J., and LUMMUS, QUA, and DOLAN, JJ.

[53 N.E.2d 687]

S. S. Dennis, Asst. Corp. Counsel, R. H. Hopkins, and M. Corman, Asst. Corp. Counsel, all of Boston, for petitioner.

M. H. Sullivan and G. F. Sullivan, both of Boston, for respondents.

LUMMUS, Justice.

This is a petition to the Land Court under G.L.(Ter.Ed.) c. 60, § 65, as amended by St.1933, c. 325, § 12, and St.1938, c. 305, by the holder of a tax title, for the foreclosure of all rights of redemption. The respondents answered, as provided in G.L.(Ter.Ed.) c. 60, § 68, as amended by St.1935, c. 224, § 3, c. 354, § 1; and c. 414, § 3, making no question of the validity of the tax title but seeking to redeem. The petitioner acquired its tax title on June 7, 1933, at a tax sale for nonpayment of the taxes for 1931.

The facts appear in a document entitled ‘Decision,’ filed by the judge. The questions raised relate solely to the amount to be paid upon redemption. The price paid for the tax title was $1,165.58. The decision made on January 24, 1941, deals mainly with the subsequent taxes assessed in the years 1932 to 1939, inclusive. The judge allowed redemption upon payment of the purchase price, with interest, costs and charges, and the annual taxes for the years 1935 to 1939, inclusive, with interest, costs and charges, and costs in the Land Court. He declined to require the respondents to pay the taxes for the years 1932, 1933 and 1934, on the ground that although they had been certified by the collector to the treasurer as required by the statute, they had not been so certified on or before September first of the year in which certification was required. Both parties appealed to this court.

Prior to 1915 an owner of land taken by, or sold to, a municipality, or sold to a private purchaser, for nonpayment of taxes, had two years in which to redeem by payment or tender. If he did not redeem, the tax title became absolute. St.1909, c. 490, Part II, §§ 59-70. Under that system a strict compliance with the statutes was held essential to the validity of a tax title. Charland v. Trustees of the Home for Aged Women, 204 Mass. 563, 567, 91 N.E. 146,134 Am.St.Rep. 696;Shurtleff v. Potter, 206 Mass. 286, 92 N.E. 331. Nevertheless much hardship to landowners resulted.

By St.1915, c. 237, the system was changed. The right to redeem was made to continue until foreclosed by decree of court upon a petition filed after the expiration of two years. By section 7, after such a petition, any person claiming an interest in the land might answer, offering to redeem, and the court might allow redemption. If there was no redemption, a decree might be entered that would ‘forever bar all rights of redemption.’ § 8. That statute, slightly amended, became G.L.(Ter.Ed.) c. 60, §§ 64-75. Later amendments do not change the general nature of the system. Because of its more liberal and equitable provisions for redemption, as compared with the earlier system, the statute of 1915 provided in § 17 that ‘No tax title shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading.’ G.L.(Ter.Ed.) c. 60, § 37, as amended by St.1941, c. 84, and as appearing in St.1943, c. 478, § 1. City of Lynn v. Lynn Commercial Realty Co., 286 Mass. 368, 190 N.E. 538;City of Fall River v. Conanicut Mills, 294 Mass. 98, 1 N.E.2d 36;City of Boston v. Lynch, 304 Mass. 272, 275, 23 N.E.2d 466;City of Marlborough v. Poorvu, 305 Mass. 124, 25 N.E.2d 189;City of Boston v. Boston Port Development Co., 308 Mass. 72, 30 N.E.2d 896, 133 A.L.R. 515;Town of Lenox v. Oglesby, 311 Mass. 269, 41 N.E.2d 45.

In 1918, in the case of Chadwick v. Cambridge, 230 Mass. 580, 119 N.E. 958, it was held that a city or town purchasing or taking land for nonpayment of taxes took title subject to the paramount lien for taxes subsequently assessed and subject to any tax title subsequently acquired upon a sale for nonpayment of such taxes. The Legislature then enacted St.1919, c. 263, which provided that in such case the city or town need not sell for nonpayment of taxes subsequently assessed, but that on redemption payment of such subsequent taxes shall be ‘made a part of the terms of redemption.’ That statute became G.L. (Ter.Ed.) c. 60, § 61. By St.1933, c. 325, § 9, the following words were added: ‘except that if any of the said subsequent taxes have not been certified by the collector to the treasurer to be added to the tax title account, then redemption may be made by payment only of the amount of the tax for which the estate was purchased or taken and of such subsequent taxes as shall have been so certified, together with costs and interest.’ Plainly certification at some time was made

[53 N.E.2d 688]

essential to the collection on redemption of a subsequent tax.

The statute of 1933 continued as follows: ‘The collector shall certify to the treasurer on September first of the year following that of their assessment all subsequent taxes which become part of the terms of redemption and the treasurer shall give him a certificate stating that the amount or amounts have been added to the tax title account or accounts and the collector shall be credited as if the tax had been paid in money.’ By St.1934, c. 48, the foregoing words, ‘on September first,’ were made to read, ‘not later than September first.’ A further amendment by St.1936, c. 93, § 1, is immaterial.

Under that statute, G.L.(Ter.Ed.) c. 60, § 61, as amended, a sale for nonpayment of such subsequent taxes cannot be made, but satisfaction of such taxes must be obtained on redemption or else by enforcing a personal liability. Landers v. Boston, 267 Mass. 17, 165 N.E. 676;City of Boston v. Jenney, 282 Mass. 168, 184 N.E. 464;Snow v. Marlborough, 301 Mass. 422, 17 N.E.2d 318. See also City of Boston v. Quincy Market Cold Storage & Warehouse Co., 312 Mass. 638, 655, 656,45 N.E.2d 956.

In City of Boston v. Cable, 306 Mass. 124, 27 N.E.2d 699, it was held that unless the collector certified to the treasurer a subsequent tax within the time specified, the city or town is not entitled to payment of it upon redemption. After that decision, G.L.(Ter.Ed.) c. 60, § 37, was amended so as to read, ‘No tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading, whether such error or irregularity occurs in the proceedings of the collector or the assessors or in the proceedings of any other official or officials charged with duties in connection with the establishment of such tax title or the inclusion of such item in the tax title account.’ St.1941, c. 84, St.1943, c. 478, § 1. Those amending statutes were enacted after the present case arose.

We are asked to re-examine the law laid down in the Cable case, and to hold the requirement of certification ‘not later than September first’ to be merely directory. Until redemption or foreclosure is sought, the taxpayer has little or no concern with the question in which office the amount of subsequent taxes is to be ascertained. Before the amendment of 1934, a single day was provided for certification. It is hard to believe that the Legislature intended to stake the collectibility on redemption of many thousands of dollars of taxes upon the chance that a collector, with his manifold duties and perhaps with inadequate assistance, would succeed in certifying all taxes within the limits of the office hours of a single day. Though the present statute gives him more freedom, its nature and purpose remain the same.

The treasurer of a municipality is the custodian of tax deeds and instruments of taking. G.L.(Ter.Ed.) c. 60, § 50, as amended. He, rather than the collector, receives payment on redemption, and releases the tax title, section 62, as amended. The statute was changed by St.1928, c. 10, so as to make inapplicable the case of Hodsdon v. Weinstein, 251 Mass. 440, 146 N.E. 675. He, rather than the collector, brings a petition for foreclosure. Section 50, as amended. The collector is credited with the tax for which land is taken by the municipality or sold to it, and also upon certification in accordance with section 61, as amended, with ‘the amount of subsequent taxes which have become part of the terms of redemption in any tax title held by the town.’ Section 95, as amended by St.1933, c. 325, § 17. Later amendments are either immaterial or mere...