City of Lowell v. Boland

• Decision Date: 01 May 1951
• Citation: 327 Mass. 300,98 N.E.2d 635
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF LOWELL v. BOLAND et al.

Page 635

98 N.E.2d 635

327 Mass. 300

CITY OF LOWELL v. BOLAND et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1951.

Decided May 1, 1951.

R. D. O'Brien, Lowell, for the petitioner.

E. J. Moloney, Lowell, for the respondents.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS, and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a petition in the Land Court by the city of Lowell under G.L. (Ter.Ed.) c. 60, § 65, as amended, to foreclose all rights of redemption under a tax title acquired and recorded by the city on June 27, 1947, to premises situated on Dutton Street in that city for nonpayment of taxes for the year 1945. The judge found the tax title to be valid and that the respondents might redeem upon the payment to the city of an agreed sum of money with interest. From this decision the respondents appeal.

The sole question for our determination involves the sufficiency of the description of the premises in the collector's notice of tax taking and the instrument of taking. The description, the same in each document, reads, '29,421 square feet of land, more or less, situate Dutton Street, as shown on Plan I 17 in office of city engineer.' The judge found that said plan shows a small portion of Dutton Street; that there is only one parcel of land on Dutton Street with an area of 29,421 square feet shown on this plan; that this plan was available in the office of the city engineer to all parties interested; and 'that the engineer's plan shows this particular lot in connection with neighboring lots and affords a definite description.'

Under G.L. (Ter.Ed.) c. 60, § 54, as amended by St.1933, c. 325, § 7, and St.1938, c. 339, § 2, the instrument of taking must contain 'a substantially accurate description of each parcel of land taken,' and if recorded within sixty days of the date of taking, such instrument 'shall be prima facie evidence of all facts essential to the validity of the title so taken.' Section 37 of c. 60, as appearing in St.1943, c. 478, § 1, provides that a tax title shall not be held invalid 'by reason of any error or irregularity which is neither substantial nor misleading.' The purpose of section 37 was to mitigate the severity of the rule as to tax title instruments. City of Fall River v. Conanicut Mills, 294 Mass. 98, 99, 1 N.E.2d 36; McHale v. Treworgy, 325 Mass. 381, 384, 90 N.E.2d 908.

It has been established that whether or not an error in such a description is substantial or misleading is commonly a question of fact. City of Springfield v. Arcade Malleable Iron Co., 285 Mass. 154, 155-156, 188 N.E. 639; City of Boston v. Lynch, 304 Mass. 272, 275, 23 N.E.2d 466; McHale v. Treworgy, 325 Mass. 381, 384, 90 N.E.2d 908. It is enough if the description is reasonably accurate and fairly designates the property for the information of those interested. Town of Franklin v. Metcalfe, 307 Mass. 386, 389, 30 N.E.2d 262; City of Boston v. Boston Port Development Co., 308 Mass. 72, 78, 30 N.E.2d 896....