City of Chicopee v. Manset Realty Corp.

Citation319 Mass. 434,66 N.E.2d 364
PartiesCITY OF CHICOPEE v. MANSET REALTY CORPORATION et al.
Decision Date16 April 1946
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions and Appeal from Land Court, Hampden County; Cotton, Judge.

Petitions by the City of Chicopee against the Manset Realty Corporation and another to foreclose all right of redemption under tax titles acquired by the city to five parcels of land for nonpayment of taxes. The judge found that the tax titles were valid and, at request of respondents, ordered the petitions to stand for further hearing on question of redemption. Respondents appealed from the decision sustaining the validity of the tax titles and also excepted to certain rulings on evidence and upon requests for rulings.

Appeal dismissed and exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

N. J. Vigeant, of Chicopee, and Walter M. Shea, of Chicopee Falls, for petitioner.

L. A. Stone, of Springfield, and R. J. Rosa, of W. Springfield, for respondents.

S. S. Dennis, of Boston, amicus curiae.

RONAN, Justice.

These are five petitions filed in the Land Court by the city of Chicopee under G.L.(Ter.Ed.) c. 60, § 65, as amended by St.1933, c. 325, § 12, and St.1938, c. 305, to foreclose all rights of redemption under tax titles acquired by the city on May 2, 1942, to five parcels of land for the nonpayment of taxes assessed in the years 1932 to 1940, inclusive. The judge found that these tax titles were valid, and at the request of the respondents ordered the petitions to stand for further hearing on the question of redemption. The respondents have appealed from the decision of the judge sustaining the validity of the tax titles, and have also excepted to certain rulings on evidence and upon requests for rulings.

As the bill of exceptions includes not only the same questions raised by the appeal but also the rulings on evidence and on the requests, Harrington v. Anderson, 316 Mass. 187, 193, 55 N.E.2d 30, we shall dismiss the appeal and consider the exceptions. City of Worcester v. Bennett, 310 Mass. 400, 38 N.E.2d 647.

There is little dispute as to the material facts. These five parcels of land were owned by Clarence E. Day prior to 1932 and continuously thereafter until he conveyed them on March 28, 1933, to the C. E. Day Lumber Co. which conveyed them on December 31, 1940, to the Manset Realty Corporation. This last corporation transferred them on August 22, 1944, to the Hampden County Realty, Inc., the present owner. The city acquired tax title to these premises in 1933 for the nonpayment of the taxes for 1932. The city in 1940 filed a foreclosure petition in the Land Court based upon the 1933 tax deeds and covering these same five parcels. The judge found that the notices of sale and the 1933 tax deeds did not contain a sufficient description of the parcels, and as a result that petition was dismissed on February 6, 1942. When this decision was made the taxes assessed for the years 1933 to 1940, inclusive had been certified for addition to and were added to the tax title accounts set up pursuant to G.L. (Ter.Ed.) c. 60, § 50, as amended. The tax collector of the city on March 27, 1942, recorded disclaimers of the 1933 tax titles. G.L.(Ter.Ed.) c. 60, § 84, as appearing in St.1935, c. 260. Demands were made on March 30, 1942, on Gertrude G. Day, ‘heir’ of Clarence E. Day, for payment of the 1932 taxes, and on the C. E. Day Lumber Company for payment of the taxes for 1933 to 1940, inclusive. Copies of these demands were mailed to the Manset Realty Corporation, the then record owner of these premises. After notice by posting and publication, the premises were taken by the city on May 2, 1942, for the nonpayment of the taxes for the years 1932 to 1940, inclusive, and the instruments of taking were recorded on May 4, 1942.

The principal contention of the respondents is that the recorded alienation of these five parcels in 1940 extinguished the liens for taxes for 1933 to 1936, inclusive, because as they say, there was no provision for the continuance of tax liens for taxes certified in a tax title account where the tax title was invalid until a provision therefor was made on March 23, 1936, the effective date of St.1936, c. 146, amending G.L.(Ter.Ed.) c. 60, § 37, and because prior to this statute there was no provision for a continuance of the liens for the years just mentioned after the filing of disclaimers of the 1933 tax titles.

The creation of a lien as security for the payment of taxes assessed upon real estate has been for many years one of the methods used for the collection of the tax. The legislative history of statutes creating a lien for the tax on real estate is set forth in Curtiss v. Sheffield, 213 Mass. 239, 100 N.E. 365, 50 L.R.A.,N.S., 402, Ann.Cas.1914A, 564. See Shruhan v. Revere, 298 Mass. 12, 9 N.E.2d 411;Massachusetts Hospital Life Ins. Co. v. Shulman, 299 Mass. 312, 12 N.E.2d 856;City of Boston v. Quincy Market Cold Storage & Warehouse Co., 312 Mass. 638, 45 N.E.2d 959. We need not repeat what was said in those decisions as to the origin, nature of duration of a tax lien, because in determining whether the tax liens for the years 1933 to 1936, inclusive, existed on May 2, 1942, at the time of the taking by the city, we need only to examine the pertinent statutes in effect at the time these taxes were assessed.

The statute providing that taxes shall be a lien upon the real estate assessed is G.L.(Ter.Ed.) c. 60, § 37. The form in which this statute stood in 1932 and also its form in 1942 at the time of the takings are shown in the footnote.1 The two important amendments to section 37 were effected by St.1933, c. 325, § 1, which inserted the first group of italicized words and lengthened the period for recording tax deeds from thirty to sixty days, and by St.1936, c. 146, inserting the second group of italicized words.2

There can be no question that the deeds for the 1932 taxes were executed while the liens for those taxes existed and that they were duly recorded in 1933, all in accordance with G.L.(Ter.Ed.) c. 60, § 37, as amended. These 1933 tax deeds were later adjudicated to be invalid because the notices of sale and the deeds did not sufficiently describe the premises assessed. This was a question of fact which arose when the deeds were applied to the parcels they purported to describe. City of Springfield v. Arcade Malleable Iron Co., 285 Mass. 154, 188 N.E. 639;City of Quincy v. Wilson, 305 Mass. 229, 230, 231, 25 N.E.2d 369;Town of Franklin v. Metcalfe, 307 Mass. 386, 30 N.E.2d 262. These 1933 tax deeds were not void upon the ground that they had not been properly recorded, as was the was the case in City of Boston v. De Grasse, 317 Mass. 523, 59 N.E.2d 3, and City of Newton v. Noone, 319 Mass. 374, 65 N.E.2d 921. A duly recorded tax deed is prima facie evidence of all facts essential to the validity of the title thereby conveyed. It presumptively vests a good title. G.L.(Ter.Ed.) c. 60, § 45, as amended. The liens for the 1932 taxes existed when the second takings occurred on May 2, 1942. Our inquiry is whether the liens for the taxes for 1933 to 1936, inclusive, were then in existence.

The duration of the liens for the taxes assessed for these four years is governed by G.L.(Ter.Ed.) c. 60, § 61, which provided that ‘Whenever a town shall have purchased or taken real estate for payment of taxes the lien of the town on such real estate for all taxes assessed subsequently to the assessment for payment of which the estate was purchased or taken shall continue’; and that it was not necessary for the municipality to take or sell the real estate for the nonpayment of these subsequent taxes, but that all such taxes, costs and interest should be paid to the municipality as a part of the terms of redemption. The amendments to section 61 by St.1933, c. 325, § 9, and St.1934, c. 48, in so far as they were in effect at the time the assessments were made for some of the four years in question, did not limit the life of the liens. By the express terms of section 61 the city had liens upon the real estate for the payment of these subsequent taxes. The city, however, could not sell the premises for the nonpayment of any one of these subsequent taxes. Chadwick v. Cambridge, 230 Mass. 580, 119 N.E. 958;Landers v. Boston, 267 Mass. 17, 165 N.E. 676;City of Boston v. Jenney, 282 Mass. 168, 184 N.E. 464. This section did not fix the duration of these liens. Hayden v. Foster, 13 Pick. 492.General Laws (Ter.Ed.) c. 60, § 37, fixed the time for the termination of a lien for taxes as two years from October 1 of the year of assessment if in the meanwhile there had been a recorded alienation of the property taxed; otherwise the lien continued until a recorded alienation occurred, but such alienation did not terminate the original lien in certain cases where the sale or taking under this original lien was invalid. But this section, section 37, in the present circumstances, did not then limit the liens for the four tax years in question. The amendment of section 37 by St.1933, c. 325, § 1, which inserted the words ‘Except as provided in section sixty-one’ so that section 37 then read, ‘Except as provided in section sixty-one, such lien shall terminate * * *,’ shows that the liens for the taxes assessed subsequently to the tax for which a purchase or taking by the city was made were not intended to be limited in duration by section 37. We need not decide precisely how long the liens created by section 61 for the taxes for these four years were to continue, but we think that they were to continue at least as long as did the liens for which the land was taken or purchased. The liens for the taxes subsequently assessed for the years 1933 to 1936, inclusive, were in existence by virtue of G.L.(Ter.Ed.) c. 60, § 61, when G.L.(Ter.Ed.) c. 60, § 37, was amended by St.1936, c. 146, providing that the liens for subsequent taxes which have been added to the...

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