City of Boston v. Quincy Market Cold Storage & Warehouse Co.

• Decision Date: 30 December 1942
• Citation: 312 Mass. 638,45 N.E.2d 959
• Parties: CITY OF BOSTON v. QUINCY MARKET COLD STORAGE AND WAREHOUSE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 638

45 N.E.2d 959

CITY OF BOSTON v. QUINCY MARKET COLD STORAGE AND WAREHOUSE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

December 30, 1942

March 4, 1940.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Taxation, Of real estate: assessment, exemption, foreclosure of right of redemption, tax title.Land Court, Foreclosure of right of redemption from tax title, Appeal.Real Property, Ownership.Statute, Construction.Words, "Shall."

A decision of the Land Court, upon a petition for foreclosure of the right of redemption from a tax title, that the title was valid and that the case stand for further hearing on the matter of redemption was proper practice.

Upon an appeal from a decision of the Land Court on a petition for foreclosure of the right of redemption from a tax title, that the title was valid and that the case stand for further hearing upon the matter of redemption, the question of the validity of the title came before this court as a separable matter.

The word "shall" as used in statutes, although in its common meaning mandatory, may be construed as permissive and directory in order to effectuate a legislative purpose.

The provisions of Section 11 of G. L. (Ter. Ed.)c. 59 in the form appearing in St. 1936, c. 92, while permitting assessing officers to assess real estate to the record owner thereof although they knew that the title was in a grantee under an unrecorded deed, did not require them to do so.

Land owned by a grantee under an unrecorded deed from the Commonwealth was not exempt from taxation as property of the Commonwealth.

A tax upon land described in an unrecorded deed properly was assessed upon the grantee under Section 11 of G. L. (Ter. Ed.)c. 59 as appearing in

St. 1936, c.

92.

PETITION, filed in the Land Court on May 3, 1939.The case was heard by Fenton J.

B. Morton, for the respondent.

S. S. DennisAssistant CorporationCounsel, (M.

Corman with him,) for the petitioner.

FIELD, C.J.The city of Boston brought this petition in the Land Court to foreclose the right of redemption under a tax title acquired by the city in the year 1937 for the tax assessed for the year 1935 to the respondent, Quincy Market Cold Storage and Warehouse Company, as the owner of certain real estate in the city of Boston.G. L. (Ter. Ed.)c. 60, Section 65, as appearing in St. 1938, c. 305.The case was heard in the Land Court on a statement of agreed facts.The respondent contends that the tax title was not valid.The trial judge filed a decision embodying findings of fact and rulings of law in which he ruled that the assessment of the tax for the year 1935(and also the assessments of the taxes for the years 1936, 1937, 1938 and 1939, certified in accordance with the provisions of G. L. (Ter. Ed.)c. 60, Section 61, as appearing in St. 1936, c. 93, Section 1) was "proper and valid," found the tax title valid and ordered the case to stand for further hearing on the matter of redemption.From this decision the respondent appealed to this court.G L. (Ter. Ed.)c. 185, Section 15;c. 231, Section 96,Section 142, as amended by St. 1935, c. 318, Section 7.Boston v. Lunch,304 Mass. 272 , 273-274.

These facts appear: For many years prior to 1928 the real estate assessed belonged to the Commonwealth.In October, 1928, the Commonwealth executed and delivered a deed -- dated October 9, 1928 -- of the real estate in question to the respondent.This deed has never been recorded.No other conveyance of the real estate has been made except the tax deed dated April 26, 1937, and recorded May 12, 1937, upon which this petition is based.All taxes on the real estate from the year 1929 to the year 1934, inclusive, were assessed to the respondent and paid by it.The taxes for the year 1935 and subsequent years were assessed to the respondent."Taxes for the year 1935 were not paid by the respondent and the property was sold for nonpayment as stated in the tax deed to the city of Boston, and the city continues to be the holder of said tax deed.Demand was duly made, the tax sale was duly advertised, and all further provisions of law in respect to tax sales were complied with."

The respondent makes no contention -- and properly, on the facts found, could make no contention -- that on January 1, 1935 -- as of which date the tax in question was assessed -- the respondent was not the owner in fact of the real estate assessed.The unrecorded deed from the Commonwealth to the respondent as between the parties thereto conveyed to the respondent the legal title to the real estate.Smythe v. Sprague,149 Mass. 310 , 312.Anthony v. New York, Providence & Boston Railroad, 162 Mass. 60 , 61.The respondent, however, contends, in substance, that for purposes of taxation, on the facts found, on January 1, 1935, the Commonwealth and not the respondent was the "owner" of such real estate, since the Commonwealth was the owner of record thereof, with the consequences that such real estate was exempt from taxation as "property of the commonwealth" under G. L. (Ter. Ed.)c. 59, Section 5, Second, and that even apart from this exemption the tax could not rightly have been assessed upon the respondent as the owner in fact of this real estate when the respondent was not the owner of record thereof.This contention cannot be sustained.

The governing statute in force during the year 1935, and during the year 1936 until St. 1936, c. 92, became effective, was G. L. (Ter. Ed.)c. 59, Section 11, as amended by St. 1933, c. 254, Section 29(which merely changed the date as of which taxes were to be assessed from April first to January first), providing that "Taxes on real estate shall be assessed, in the town where it lies, to the person who is either the owner or in possession thereof on January first, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, where the estate lies, as owner on January first, even though deceased, shall be held to be the true owner thereof, and so shall the person so appearing of record under a tax deed not invalid on its face. . . .

Except as provided in the three following sections, mortgagors of real estate shall for the purpose of taxation be deemed the owners until the mortgagee takes possession, after which the mortgagee shall be deemed the owner.

"

From Rev. Sts. c. 7, Section 7, to G. L. (Ter. Ed.)c. 59, Section 11, before its amendment by St. 1936, c. 92, the statutes have provided, in language that has not varied in any material particular, that taxes upon real estate shall be assessed "to the person who is either the owner or in possession thereof" on the tax date -- now January first.See Gen. Sts. c. 11, Section 8; Pub. Sts. c. 11, Section 13; R. L. c. 12, Section 15.But in St. 1881, c. 304 --a statute dealing primarily with the taxation of mortgaged real estate -- by Section 3 thereof it was provided that, "For the purposes of assessing and collecting taxes, the persons appearing of record as owners of real estate shall be held to be the true owners thereof."In Pub. Sts. c. 11, Section 13, this provision was included in the same section as the provision that taxes should be assessed "to the person who is either the owner or in possession thereof."And the provision above quoted from St. 1881, c. 304, Section 3, with some modification in phrase if not in effect, has been retained in subsequent statutes(seeSt. 1889, c. 84; R. L. c. 12, Section 15;St. 1902, c. 113; St. 1909, c. 490, Part I, Section 15) and was incorporated in G.L.c. 59, Section 11, and now appears in G. L. (Ter. Ed.)c. 59, Section 11, as above set forth.The inclusion in G. L. (Ter. Ed.)c. 59, Section 11, as amended, of the provision limiting "of record" to "records of the county, or of the district, if such county is divided into districts, where the estate lies," resulted from an amendment to R. L. c. 12, Section 15, by St. 1902, c. 113, although a similar provision had previously been incorporated in the statute(seeSt. 1889, c. 84) but was omitted in the revision.The provision expressly applying the rule with respect to the owner of record to a case where such owner is deceased first appeared in St. 1889, c. 84, Section 1, and the provision relating to a person appearing to be the owner of record "under a tax deed not invalid on its face" was incorporated in the statute by St. 1915, c. 237, Section 23.The general provision with respect to the taxation of mortgaged real estate goes back to Rev. Sts. c. 7, Section 7, although the exception to this general provision originated in St. 1881, c. 304.The statute governing the present case is to be interpreted in the light of its history.

Prior to St. 1881, c. 304, the "owner" of real estate to whom it could be assessed was undoubtedly the owner in fact thereof, that is, the person having legal title to such real estate.Miner v. Pingree,110 Mass. 47 .Worcester v. Boston,179 Mass. 41 , 49.Yet, though there has never been express statutory authority for assessing real estate in terms to an unknown owner, such assessments both before and after the passage of St. 1881, c. 304, have been recognized as valid if the assessors with the exercise of reasonable diligence could not obtain trustworthy information as to its ownership.Desmond v. Babbitt,117 Mass. 233 , 234.Stone v. New England Box Co.216 Mass. 8 , 11.McDonough v. Everett,237 Mass. 378 , 381.See alsoOakham v. Hall,112 Mass. 535 , 538-539.

Moreover, before the passage of St. 1881, c. 304, though there was no express statutory authority for assessing real estate to the owner of record thereof, it was held in Tucker v. Deshon,129 Mass. 559 , 566-567, that an assessment to the owner of record of...