City of Lowell v. Marden & Murphy, Inc.
| Decision Date | 11 September 1947 |
| Citation | 321 Mass. 597,74 N.E.2d 666 |
| Parties | CITY OF LOWELL v. MARDEN & MURPHY, Inc., et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by the City of Lowell against Marden & Murphy, Inc., and another, to foreclose all rights of redemption in four parcels of land taken by the petitioner for nonpayment of taxes. From the decision rendered, the petitioner and the named defendant appeal.
Decision affirmed.Appeals from Land Court, Middlesex County; Fenton, Judge.
Before QUA, C. J., and LUMMUS, DOLAN, and RONAN, JJ.
R. D. O'Brien, of Lowell, for petitioner.
S. S. Dennis, Asst. Corp. Counsel, of Boston, for W. C. Kerr and L. Goldblatt, amici curiae.
W. I. Morse and B. E. Eames, both of Boston, for respondent.
This is a petition filed in the Land Court on August 21, 1944, to foreclose all rights of redemption in four parcels of land in Lowell which were taken by the petitioner on August 17, 1942, for the nonpayment of taxes for the years 1933 to 1941, both inclusive. G.L.(Ter.Ed.) c. 60, § 65, St.1933, c. 325, § 12, and by St.1938, c. 305. Four parcels were taken, as follows: Parcel 1, eighty-nine thousand seventy-nine square feet, located northerly of Jackson Street; parcel 2, forty-nine thousand six hundred twenty-nine square feet, located northerly of Jackson Street; parcel 3, nine thousand nine hundred forty-four square feet, located southerly of Jackson Street; and parcel 4, three thousand two hundred fifteen square feet, located southerly of Jackson Street. No two of these four parcels are contiguous to each other. Marden & Murphy, Inc., the owner, and Hamilton Company, a mortgagee, appeared and answered. The Land Court decided in favor of the petitioner as to parcels 2, 3 and 4, and against it as to parcel 1. Both the petitioner and Marden & Murphy, Inc., appealed. Since no other respondent appeared or argued in this court, Marden & Murphy, Inc., will hereinafter be called the respondent.
The first point taken by the respondent is that in the assessment of parcels 1 and 2 the respondent was assessed for water power that it did not own. But the water power was not assessed as a separate piece of property. Its value merely enhanced the value of the land, as in other cases in which valuable water power has been considered for purposes of taxation. Essex Co. v. City of Lawrence, 214 Mass. 79, 90, 91, 100 N.E. 1016;Assessors of Lawrence v. Arlington Mills, 320 Mass. 272, 276, 69 N.E.2d 2. If the inclusion of the value of the water power was wrong, the only remedy of the respondent was by a petition for abatement. Central National Bank v. City of Lynn, 259 Mass. 1, 7, 156 N.E. 42;Id., 266 Mass. 145, 164 N.E. 927;Codman v. Assessors of Westwood, 309 Mass. 433, 435, 35 N.E.2d 262.
The respondent contends that the tax taking for the taxes of 1938 and 1939 was invalid because the respondent had no opportunity to obtain a reduction in the valuation. It is not disputed that the tax was greater than the amount for which an abatement might be sought without payment upon the tax, under G.L.(Ter.Ed.) c. 59, §§ 64, 65, as amended. By St.1938, c. 478, § 3 (G.L.[Ter.Ed.] c. 59, § 65B), where a tax on a parcel of real estate exceeds $1,000, a payment, generally of half the tax, must be made as a condition of appeal to the Appellate Tax Board. It is settled that such a payment may constitutionally be made a condition of a hearing upon an application or an appeal for abatement, regardless of the financial condition of the taxpayer. Old Colony Railroad v. Assessors of Boston, 309 Mass. 439, 35 N.E.2d 246;Lincoln Hotel Co. v. Assessors of Boston, 317 Mass. 505, 59 N.E.2d 1. We remain satisfied with those decisions, which are decisive as to the present objection raised by the respondent.
The respondent contends that the assessments in question were invalid because the description of the property assessed was inadequate. At most the variances from the correct area were one thousand seven hundred forty-five square feet as to parcel 1, out of an area of eighty-nine thousand seventy-nine square feet; four hundred forty-one square feet as to parcel 3, out of an area of nine thousand nine hundred forty-four square feet; and two hundred eighteen square feet as to parcel 4, out of an area of three thousand two hundred fifteen square feet. The locations of the parcels in the assessment book were sufficient to identify them. In Roberts v. Welsh, 192 Mass. 278, 280, 78 N.E. 408, 409, this court said that the statutes do not intend that the description in a valuation list See also Town of Lenox v. Oglesby, 311 Mass. 269, 274, 41 N.E.2d 45.The judge was right, we think, in finding that the taxpayer knew what property was being assessed, and was not misled. Town of Franklin v. Metcalfe, 307 Mass. 386, 389, 390, 30 N.E.2d 262;City of Boston v. Boston Port Development Co., 308 Mass. 72, 78, 30 N.E.2d 896, 133 A.L.R. 515.
The respondent raised, but did not argue in this court, the point that the abatement of the taxes for the years 1930, 1931 and 1932 prevented the tax taking from being lawful. Of course the abatements destroyed any tax lien for the taxes of those years. No later sale or taking for those years was ever made. Nothing in that transaction prevented the taking in question for nonpayment of the taxes of later years. See Newton v. Noone, 319 Mass. 374, 65 N.E.2d 921.
The land in question was sold by the collector of taxes to the city of Lowell on March 17, 1937, but on petitions to foreclose the rights of redemption from that tax sale the Land Court, on May 21, 1942, held the tax title conveyed by such sale to be invalid, and the petitions were dismissed. After disclaimers of such tax title, a new taking was made on August 17, 1942. The respondent contends that the assessments of taxes to it for the years 1937 to 1941, inclusive, were void, because such assessments should have been made to the city of Lowell as the holder of the tax titles which were held to be invalid as stated above.
By G.L.(Ter.Ed.) c. 60, § 78, ‘Before foreclosure or redemption, taxes on land taken or purchased by a town shall be assessed to the person to whom they would be assessed if the land had not been so taken or purchased.’ This section was repealed by St. 1936, c. 194. By G.L.(Ter.Ed.) c. 59, § 11, taxes on real estate were assessable to the person who was either the owner ‘or in possession thereof,’ and it was provided that the record owner shall be deemed to be the true owner, ‘and so shall the person so appearing of record under a tax deed not invalid on its face.’ The quoted portions of the section were omitted when it was revised by St.1936, c. 92. Accordingly, when the section was again revised by St.1939, c. 175, real estate was made taxable to the ‘owner,’ and the record owner was deemed the true owner. We think that these statutory changes made it impossible after 1936 to tax real estate to a tax title holder. See Nichols Taxation in Massachusetts (3d Ed. 1938) 267, 268. Apparently the right to assess land to a tax title holder was the creature of express statute, and ceased when an express provision permitting such taxation was no longer to be found in the statute. Burr v. City of Boston, 208 Mass. 537, 543, 95 N.E. 208, 34...
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