City of Quincy v. Wilson

• Decision Date: 14 February 1940
• Citation: 25 N.E.2d 369,305 Mass. 229
• Parties: CITY OF QUINCY v. WILSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 229

25 N.E.2d 369

CITY OF QUINCY

v.WILSON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 14, 1940.

Exceptions from Land Court, Norfolk County; P. J. Courtney, Judge.

Petition by the City of Quincy against William W. Wilson and others to foreclose rights of redemption in registered land taken by the petitioner for nonpayment of taxes. The judge in the land court held the tax taking valid, and the named respondent filed exceptions.

Exceptions sustained and petition dismissed.

Harry Pavan, of Quincy, for plaintiff.

M. L. Lourie, M. S. Lourie and J. L. Yesley, all of Boston, for defendants.

LUMMUS, Justice.

This is a petition to foreclose rights of redemption in registered land taken by the petitioner in 1936 for nonpayment of the taxes of 1931, 1932, 1933 and 1934. G.L.(Ter.Ed.) c. 60, § 65; St.1938, c. 305. The judge in the land court held the tax taking valid. The respondent William W. Wilson alleged exceptions.

The first point argued by the respondent is that the description of the land in the taking was not ‘substantially accurate.’ G.L.(Ter.Ed.) c. 60, § 54; St.1933, c. 325, § 7; St.1938, c. 339, § 2. See, also, as to descriptions in tax deeds, G.L.(Ter.Ed.) c. 60, § 40; Williams v. Bowers, 197 Mass. 565, 84 N.E. 317;Welsh v. Briggs, 204 Mass. 540, 552, 90 N.E. 1146;Conners v. Lowell, 209 Mass. 111, 95 N.E. 412, Ann.Cas.1912B, 627;Larsen v. Dillenschneider, 235 Mass. 56, 126 N.E. 363;Springfield v. Arcade Malleable Iron Co., 285 Mass. 154, 188 N.E. 639;Boston v. Lynch, Mass., 23 N.E.2d 466.

The description in the taking corresponded with that in the petition, and the latter was sufficient to enable the respondent to assert in his answer that ‘he is the owner of the real estate referred to in the petition as appears by certificate of title No. 19,796.’ Thus there was some reason to believe that the description was substantially accurate. The respondent now asks us to compare the description in the taking with that in his certificate of title, and contends that a comparison would show that the description in the taking was not substantially accurate. Upon the present record such a comparison would be profitless. Both descriptions are complicated, with many boundaries, and are incomprehensible without either a plan or intimate knowledge of the neighborhood. Both refer to plans that were not in evidence. In preparing a record for this court, it should be borne in mind that we have no judicial or other knowledge of territory that may be familiar to parties, counsel and the court below, and that a description in words only seldom creates an assured understanding of the complexities of a land case.

The respondent's exception to the ruling that the description in the taking was substantially accurate must be overruled upon the principle that the burden is on an excepting party to see to it that the bill of exceptions demonstrates the commission of error. Posell v. Herscovitz, 237 Mass. 513, 517, 130 N.E. 69;Barnes v. Springfield, 268 Mass. 497, 504, 168 N.E. 78;Anderson v. Beacon Oil Co., 281 Mass. 108, 111, 183 N.E. 152;Lariviere v. Boucher, 297 Mass. 27, 30, 8 N.E.2d 353;Graw v. Hew Construction Co., Mass., 15 N.E.2d 225.

The second point argued by the respondent is that the amount of taxes due stated in the taking was excessive. Hurd v. Melrose, 191 Mass. 576, 78 N.E. 302;Wood v. Wilson, 256 Mass. 340, 342, 152 N.E. 355, and cases cited. The excess, it is argued, resulted from the unlawful inclusion of the taxes of 1931.

Prior to the taking, the land in question was sold in 1932 by the collector of taxes of Quincy for nonpayment of the taxes of 1931. In accordance with G.L. (Ter.Ed.) c. 60, § 48 he purchased the land for the city for the amount of the tax, charges and expenses. The duty of recording the tax deed was upon the collector, as the section just cited plainly implies. See now St.1933, c. 325, § 5. The tax sale in 1932 was in all respects regular and valid, except that the tax title of the city failed solely because the deed was recorded in the registry of deeds as though the land were unregistered, instead of being filed within the thirty days then allowed with the assistant recorder for the district where the land lies and registered in the registration book. G.L. (Ter.Ed.) c. 60, § 45; c. 185, § 84. Wood v. Wilson, 256 Mass. 340, 152 N.E. 355. See now St.1938, c. 339, § 1.

The proper recording or filing of the tax deed to the city was the final duty of the collector in making the ‘sale’ to the city, and his failure to perform that duty made the tax title ‘invalid by reason of * * * error, omission or informality in the * * * sale,’ within G.L.(Ter.Ed.) c. 60, § 84, and St.1935, c. 260. Nickerson v. Hyde Park, 209 Mass. 365, 366, 367, 95 N.E. 794. Accordingly, in November, 1935, he had the right under the statutes just cited to ‘disclaim and release such title by an instrument under his hand and seal, duly recorded in the registry of deeds.’ The statute further provided that ‘he shall,...