City of Worcester v. Bennett

• Decision Date: 31 December 1941
• Citation: 38 N.E.2d 647,310 Mass. 400
• Parties: CITY OF WORCESTER v. BENNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 400

38 N.E.2d 647

CITY OF WORCESTER

v.BENNETT.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 31, 1941.

Appeal and Exceptions from Land Court, Worcester County; Fenton, judge.

Petition under statute by the City of Worcester against Edward L. Bennett, trustee, to foreclose all rights of redemption in certain real estate in Worcester from a tax title alleged to have been acquired by the city in 1935 for nonpayment of taxes originally assessed in 1928 and reassessed on December 18, 1934. From a decree for the petitioner, Edward L. Bennett, trustee, brings exceptions and also appeals.

Reversed, and a decree directed dismissing the petition.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.A. M. Hillman, Asst. City Sol., and W. D. Allen, City Sol., both of Worcester, for petitioner.

P. Fletcher, of Worcester, for respondent.

QUA, Justice.

This is a petition under G.L.(Ter.Ed.) c. 60, § 65, as amended, to foreclose all rights of redemption in certain real estate in Worcester from a tax title alleged to have been acquired by the city in 1935 for nonpayment of the taxes originally assessed in 1928 to Y-D Service Garage of Worcester, Inc., hereinafter called the company, and reassessed on December 18, 1934, after a tax title acquired by the city under the original assessment had been held invalid in the Land Court ‘because of error in the description in the assessment, notice and tax deed.’ Edward L. Bennett as one of two trustees under a ‘Refunding Mortgage Indenture’ covering the property has filed a bill of exceptions and has also appealed from a decision of the Land Court wherein a decree for the petitioner was ordered. No offer to redeem from the tax title has been made.

At the threshold of the case lies the question whether before the sale in 1935 the city had been deprived of its tax lien by an alienation of the land resulting from an entry under the mortgage indenture on July 1, 1929, and three years' possession thereafter. ‘The right to sell land for taxes rests solely upon the existence of such a lien, which is a creature of statute and not originally a feature of the collection of taxes in this Commonwealth.’ Shruhan v. Revere, 298 Mass. 12, 14, 9 N.E.2d 411, 412. If it had no lien the city acquired no tax title which it can now foreclose. Morse v. Revere, 248 Mass. 569, 143 N.E. 621.

When the original assessment was made in 1928 what is now G.L. (Ter.Ed.) c. 60, § 37, was in force and continued in force without amendment until after July 1, 1932, when the three years from the date of entry expired. This section provided in part as follows: ‘Taxes assessed upon land * * * shall * * * be a lien thereon from April first in the year of assessment. Such lien shall terminate at the expiration of two years from October first in said year, if the estate has in the meantime been alienated and the instrument alienating the same has been recorded, otherwise it shall continue until a recorded alienation thereof; * * *. There shall be no lien for taxes reassessed if the property is alienated before the reassessment.’ It was also provided by c. 59, § 77, relating to reassessments, that ‘An alienation of the real estate assessed shall not defeat a reassessment, if made within two years after the tax first assessed was committed to the collector; but the lien provided by section thirty-seven of chapter sixty shall terminate as therein provided.’ The reassessment in this case was not made within the two years, but was made about six years after the tax first assessed must have been committed to the collector. It is true that before the reassessment was made c. 60, § 37, had been amended by St.1934, c. 169, and that the sentence ‘There shall be no lien for taxes reassessed if the property is alienated before the reassessment’ does not appear in the amended section. But the provision of c. 59, § 77, that an alienation shall not defeat a reassessment, if made within two years after the tax first assessed was committed to the collector remained. We do not consider the effect in general of the 1934 amendment upon liens for reassessed taxes, since we are of opinion that if that amendment in any way broadens the effect of reassessment upon lands that have been alienated it should not be construed retroactively to apply to reassessments made after it took effect of taxes originally assessed before its enactment. See Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 107 N.E. 426, Ann.Cas.1917A, 145. A very similar question in relation to reassessments of betterments was decided in Union Street Railway Co. v. City of New Bedford, 253 Mass. 314, 317, 149 N.E. 46, 48, where it was said that betterment assessments are in ‘legal character, a tax,’ citing President, etc., of Harvard College v. Board of Aldermen City of Boston, 104 Mass. 470, 482. The New Bedford case is authority here to the effect that the respondent's rights are to be determined under the law as it stood before the 1934 amendment. We need not consider whether before that amendment there was any inconsistency in the two sections from which we have quoted, since upon any reasonable construction of these sections it seems to result that there could be no lien for the taxes reassessed more than two years after the original commitment if the property had been alienated before the reassessment. See the corresponding provisions of G.L.(Ter.Ed.) c. 80, § 16, relating to reassessments of betterments. This is true whether or not the completed alienation can be said to have been recorded. The provisions of section 37 relative to recording are applicable in fixing the duration of the lien once it arises. They have never been made applicable in determining whether a lien is created by a reassessment upon alienated land. St.1859, c. 118, § 2. Gen.Sts. c. 12, § 23. St.1881, c. 304, § 7. Pub.Sts. c. 11, § 78; c. 12, § 25. St.1888, c. 390, § 31. R.L. c. 13, § 35, St.1909, c. 490, Part I, § 86; Part II, § 36. St.1915, c. 237, § 17. St.1918, c. 257, § 46.

We are of opinion that there had been a completed alienation of the land before the reassessment. On July 1, 1929, Bennett as ‘individual trustee’ under the mortgage indenture, upon which the company as mortgagor was then in default, entered upon the premises and thereafter duly recorded and registered (part of the premises being registered land) a certificate of entry in accordance with G.L.(Ter.Ed.) c. 244, §§ 1, 2, wherein it is stated that he, “Individual Trustee' under' the indenture, entered ‘for the purpose by him declared of taking possession of the mortgaged property and premises and managing working and conducting the business of the Company and of foreclosing the mortgage for breach of the condition thereof.’ The other trustee under the indenture, whose corporate name was then Worcester Bank and Trust Company, and which is called in the indenture the ‘corporate trustee,’ ‘refused to join in’ and ‘has not ratified’ the entry and has thereafter, in acknowledging receipt of the notice required by the indenture, ‘stated that it neither approved nor disapproved’ of the entry. Before the entry Bennett had discussed with the bank's trust officer and its attorney the action to be taken and ‘the manner in which it was to be taken,’ and as a result of this discussion ‘it was decided that the corporate trustee did not wish to join Bennett, individual trustee, in taking possession of the property.’ The bank's attorney, however, assisted in preparing the ‘necessary instruments.’ After the entry Bennett as individual trustee remained in possession. It may be assumed in the absence of anything to the contrary that his possession was sufficiently peaceful to satisfy the more or less fictional requirement of the statute. See Bennett v. Conant, 10 Cush. 163, 166, 167;Fletcher v. Cary, 103 Mass. 475;Long v. Richards, 170 Mass. 120, 127-129, 48 N.E. 1083,64 Am.St.Rep. 281. The certificate was conclusive of Bennett's intent to foreclose. See Hawkes v. Brigham, 16 Gray 561, 564, 565. The three years expired July 1, 1932, before the reassessment. The foreclosure of a mortgage by sale is an alienation of the land within the meaning of the statutes here under consideration. Davis v. Boston, 129 Mass. 377, 379. See Abbott v. Frost, 185 Mass. 398, 70 N.E. 478. A mere entry to foreclose, without the lapse of the necessary three years, was held not an alienation in Market National Bank v. Belmont, 137 Mass. 407, but language was used which seems to us to imply strongly that the court would have regarded the alienation as complete if the entry had ripened into a foreclosure by the lapse of three years. We cannot doubt that this would be so, and that an alienation within the meaning of the statutes involved is here shown, if the entry by the individual trustee Bennett alone, without actual participation by his co-trustee, was a lawful and sufficient entry for the...