Curtiss v. Inhabitants of Sheffield
| Decision Date | 06 January 1913 |
| Citation | 213 Mass. 239,100 N.E. 365 |
| Parties | CURTISS v. INHABITANTS OF SHEFFIELD et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan. 6 1913.
Arthur S. Kneil, of Westfield, for plaintiff.
Howard M. Whiting, of Great Barrington, for defendants.
The general findings of the master that none of the taxes have been paid and that no tender of the amounts due has been made are justified by the subsidiary findings set out in the report, and must stand. So far therefore as the plaintiff relies upon payment or tender he fails.
He contends, however, that the deeds are void by reason of irregularities in the proceedings of assessment and sale; and in support of this contention he alleges that the assessments made upon the two lots named in the bill in the first case were illegal because the lots, being owned by tenants in common, the tenants were assessed each for his own individual interest therein, whereas, as the plaintiff says, they should have been jointly assessed for the whole.
We will first consider this objection so far as respects the taxes for the year 1905. It appears that on May 1st of that year the first of these two lots was owned by the plaintiff and his two children as tenants in common, he owning seven-ninths and his children each one-ninth. This lot was known on the assessors' books as the 'milling property' and consisted of about one acre of land with the buildings thereon, the whole being valued by the assessors at $3,750. It was originally assessed two-thirds to the plaintiff and one-third to each of the children, but, the assessors apparently having discovered the error as to fractions, a reassessment was made changing the figures so as to conform to the actual state of the title. Upon the books of the assessors the entries were made in the following way:
It thus appears that the assessment was not of the whole tax upon the whole land to the tenants jointly, but an assessment to each tenant upon his undivided interest in the land for his proportionate part of the tax upon the whole land. The case seems to raise the general question whether an assessment to a tenant in common for his undivided interest in land is authorized under our system of taxation. There can be no doubt that it is within the power of the Lagislature to authorize such an assessment. The only question is whether it has done so. It is merely a question of statutory construction, but, nevertheless, is one of considerable difficulty.
Not much light is thrown upon it by those portions of the colonial and provincial statutes which directly prescribe the manner of assessment. They provide in general terms that each inhabitant shall be assessed in just proportion according to his estate both real and personal, and that the amount of his tax shall be clearly set forth, but with reference to the question under discussion the language is vague and indefinite. See for example, Anc. Ch. pp. 69, 249, and the several provincial annual tax acts of which that set out in Prov. St. 1738-39, c. 13, 2 Prov. Laws (State Ed.) 952, is a fair sample. Perhaps the most that can be said of the provisions contained in these statutes as to the manner in which the assessments shall be made and recorded is that they are not conclusive either way on the question. And, speaking generally, it may be said that none of our statutes, past or present, whether colonial, provincial or state, contains any direct provision as to the manner of assessing real estate owned in fee by tenants in common. None expressly directs either that the assessment shall be made to the tenants each for his own undivided interest, or to the tenants jointly for the whole. And while some of the provisions seem to point to the first, others seem to point to the second, as the proper method; and taken as a whole they are not absolutely inconsistent with either view. Hence if the decision of this question depended entirely upon these provisions as to the manner of assessment, it would be difficult to say that an assessment to a tenant in common upon his undivided interest is unauthorized.
But these provisions for the making and recording of assessments do not constitute the whole of our system of taxation. There are also provisions for the collection of the taxes. And these two sets of provisions, the one for assessing and the other for collecting, constitute the whole system, each set being essential. By comparing these two and studying them in their relation to each other and to the whole system, doubts as to the meaning of the one may be resolved by the plain legal meaning of the other. Where practicable, each set should be so interpreted as not to clash with the efficient action of the other, to the end that there may be harmony in the working of the whole and that taxes may be not only assessed but collected.
We never have had a lien upon any article of personal property for the tax assessed therefor, no matter how large or cumbersome the article might be. The only method of collecting a tax upon personalty is by distress, arrest or action at law. It is otherwise as to a tax on real estate. In addition to these three remedies there is a process in rem for the collection of such a tax. A tax upon real estate may be assessed to the owner or occupant, and even when assessed to the latter it is a lien upon the whole land irrespective of the various interests of the owners or of lienors of any kind; and this lien may be enforced by a taking or sale. R. L. c. 13, § 35 et seq.
It becomes necessary to examine into the history of the legislation as to tax liens. Prov. St. 1731-32, c. 9, 2 Prov. Laws (State Ed.) 616, seems to have been the earliest statute giving a lien for taxes upon real estate. It was applicable only to unimproved lands of nonresidents. It provided that if the tax was not paid three freeholders, to be appointed by the assessors, should 'apprize so much of such * * * lands * * * as they judge will be sufficient to pay and satisfy' the taxes and charges, and that, the default continuing, the part thus apprized should be sold, and a deed thereof be given to the highest bidder. If the part apprized sold for more than enough to discharge the tax and charges, the surplus was to be paid to the 'delinquent proprietors.' See, also, Prov. St. 1735-36, c. 6, § 1, 2 Prov. Laws (State Ed.) 759, where only 'so much and no more' of the land as the assessors should judge sufficient to pay the tax and charges should be offered for sale. See also to the same effect Prov. Sts. 1745-46, c. 9, § 1, 3 Prov. Laws (State Ed.) 251; 1752-53, c. 17, 3 Prov. Laws (State Ed.) 646; 1761-62, c. 44, § 1, 4 Prov. Laws (State Ed.) 532; 1777-78, c. 13, § 5, 5 Prov. Laws (State Ed.) 757. In this last statute the language is that the collector shall 'sell so much only of the land 'as will be sufficient to discharge' the tax and charges. And the same language is employed in the following statutes, namely: Prov. Sts. 1777-78, c. 26, § 4, 5 Prov. Laws (State Ed.) 793; 1779-80, c. 12, § 5, 5 Prov. Laws (State Ed.) 1111; 1779-80, c. 30, § 5, 5 Prov. Laws (State Ed.) 1164; 1779-80, c. 49, § 5, 5 Prov. Laws (State Ed.) 1228; 1780, c. 9, § 6, 5 Prov. Laws (State Ed.) 1407, 1408; 1780, c. 16, § 5, 5 Prov. Laws (State Ed.) 1431; and St. 1785, c. 70, § 7.
St. 1785, c. 70, § 6, extended the lien to the case where the landowner removed out of town after the tax was assessed. In such a case the collector was to sell 'so much of [the] land' as would suffice to pay the tax and charges. In section 7 the lien was extended to embrace the case of improved land of persons living out of the state, the lien to be enforced in the same manner. In this last class of cases, namely, where the landowner lived out of the state, it was early held that the tax was a lien on the land only and was not a personal charge. Rising v. Granger, 1 Mass. 49.
There were no other provisions for lien for taxes upon real estate until the annual tax act of 1822, usually cited as St. 1821, c. 107. This applied only to taxes on real estate situated in Boston, and provided that if the tax was not paid the collector should sell 'so much of the same' as should be necessary to discharge the tax and charges. The same provision was continued in the following year (St. 1822, c. 108, § 9), and by St. 1823, c. 133, § 9, the lien was made general throughout the commonwealth, and with modifications not here material the lien has ever since existed. St. 1830, c. 151, § 9; Rev. Sts. c. 8, § 18; G. S. c. 12, §§ 22 and 23; P. S. c. 12, §§ 24 and 25; R. L. c. 13, § 35; St. 1909, c. 490, pt. 2, § 36.
At the time these various liens were established and until the Revised Statutes went into effect, the only way of enforcement was by a sale of so much of the land as was considered sufficient to discharge the tax and charges. It is manifest that by the term land as used in this connection is meant the actual physical object, and not an undivided interest therein. Accordingly it was held in Wall v Wall, 124 Mass. 65, that the collector could not sell an undivided portion 'so as to...
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