City of Boston v. Barry

• Decision Date: 01 March 1944
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF BOSTON v. ANNA M. BARRY & another.

315 Mass. 572

53 N.E.2d 686

CITY OF BOSTON v. ANNA M. BARRY & another.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1944

April 10, 1941.

Present: FIELD, C.

J., LUMMUS, QUA & DOLAN, JJ.

Taxation, Real estate tax: redemption, certification. The provision of Section 61 of G. L. (Ter. Ed.) c. 60, as appearing in St.

1933, c. 325 Section 9, that the "collector shall certify to the treasurer on September first" or, by the amendment of St. 1934, c. 48,

"not later than September first" "of the year following that of their assessment all subsequent taxes which become part of the terms of redemption," though imperative in phraseology, was merely directory; and certifications by the collector of taxes for the years 1932, 1933, and

1934, several months after the date stated in the statute, did not as a matter of law prevent the inclusion of their amount in the amount to be paid for redemption under Section 68, as amended, by a respondent in a proceeding to foreclose the right of redemption from a tax title begun after the dates of such certifications. Boston v. Cable, 306 Mass. 124 , overruled. The provision of G. L. (Ter. Ed.) c. 60, Section 105, as amended by St.

1933, c. 168 Section 3, that "forms to be used in proceedings for the collection of taxes under this chapter . . . shall be as prescribed by the commissioner," is merely directory and certifications by the collector under Section 61, as amended, before forms therefor had been established by the commissioner, by letters to the treasurer sufficient to identify the property taxed and to specify the amounts of taxes which were to be added under that statute, were sufficient.

PETITION, filed in the Land Court on February 17, 1940, for the foreclosure of rights of redemption from a tax title.

The case was heard by Fenton, J. In his decision he stated that certifications by the collector of the taxes for the years 1932, 1933, and 1934, were by letters to the treasurer dated, respectively, August 3, 1934, December 3, 1934, and November 30, 1935; that such method "in each year was sufficient to identify the property of the respondents and to specify the amount of the taxes which was to be added to the separate tax account of the respondents in each year. Furthermore, as far as a method alone is concerned, it was in each year sufficient to comply with the provisions of G. L. (Ter. Ed.) c. 60, Section 61, as amended. . . . I find as a fact in this case, not only as to the matter of forms used but as to all the proceedings of the collector discussed herein, that there was no error or irregularity of the collector which was either substantial or misleading. . . . I rule, therefore . . . that the respondent's contention that none of the certifications for the years 1932 to 1938 inclusive are adequate because they were not made on a form prescribed by the commissioner of corporations . . . is unsound."

M. H. Sullivan, (J.

F. Sullivan with him,) for the respondents.

S. S. Dennis, Assistant Corporation Counsel, (R.

H. Hopkins & M.

Corman, Assistant Corporation Counsel, with him,) for the petitioner.

LUMMUS, J. This is a petition to the Land Court under G. L. (Ter. Ed.) c. 60 Section 65, as amended by St. 1933, c. 325, Section 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, Section 68, as amended by St. 1935, c. 224, Section 3; c. 354, Section 1; and c. 414, Section 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, Sections 59-70. Under that system a strict compliance with the statutes was held essential to the validity of a tax title. Charland v. Home for Aged Women, 204 Mass. 563 , 567. Shurtleff v. Potter, 206 Mass. 286 . 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." Section 8. That statute, slightly amended, became G. L. (Ter. Ed.) c. 60, Sections 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 Section 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, Section 37, as amended by St. 1941, c. 84, and as appearing in St. 1943, c. 478, Section 1. Lynn v. Lynn Commercial Realty Co. 286 Mass. 368 . Fall River v. Conanicut Mills, 294 Mass. 98. Boston v. Lynch, 304 Mass. 272 , 275. Marlborough v. Poorvu, 305 Mass. 124. Boston v. Boston Port Development Co. 308 Mass. 72 . Lenox v. Oglesby, 311 Mass. 269 .

In 1918, in the case of Chadwick v. Cambridge, 230 Mass. 580 , 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, Section 61. By St. 1933, c. 325, Section 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 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, Section 1, is immaterial.

Under that statute, G. L. (Ter. Ed.) c. 60, Section 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 . Boston v. Jenney, 282 Mass. 168 . Snow v. Marlborough, 301 Mass. 422 . See also Boston v. Quincy Market Cold Storage & Warehouse Co. 312 Mass. 638 , 655, 656.

In Boston v. Cable, 306 Mass. 124 , 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, Section 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, Section 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...