O'day v. Bowker

• Decision Date: 24 November 1886
• Parties: O'DAY v. BOWKER. (Two Cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 59

9 N.E. 16

O'DAY v. BOWKER. (Two Cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

November 24, 1886

COUNSEL

H.H. Winslow, for defendant.

The deed given by the collector of taxes to J.W. French "conveyed an estate in fee-simple." Butler v Stark, 139 Mass. 19, and cases cited. French was seized of the land. There can be but one actual seizin of an estate. Seizin follows the title. The title was vested in French. The right to revest the title in the O'Day heirs, by lawful redemption within two years of sale, (Pub.St. c. 12, § 49,) never was used, and therefore the fee never has been in the O'Day heirs or plaintiff since September 3, 1880. Plaintiff is not entitled to an account. Mitchell v Green, 10 Metc. 107. "There is no privity between the parties by way of contract." Infant's rights are determined. Hall v. Bumstead, 20 Pick. 2; Thompson v. Paris, (N.H.) 2 East.Rep. 26; Dewey v. Donovan, 126 Mass. 337; Reed v. Adams, 2 Allen, 413. Equity follows the law. Gladwin v French, 112 Mass. 186.

H. Dunham, for plaintiff.

The only question before this court seems to be whether the decree conforms to the allegations and prayer of the bill, no report of the evidence having been requested at the hearing before the single justice, (Weld v. Walker, 130 Mass. 422; Mason v. Lewis, 115 Mass. 334; O'Hare v. Downing, 130 Mass. 16, 20; rule 35, Ch., 136 Mass. 609; Pub.St. c. 151, § 26; Iasigi v. Chicago, B. & Q.R.R., 129 Mass. 46; Stanley v. Stark, 115 Mass. 259;) and though the decree may state some of the facts, it does not necessarily state all, (rule 37, Ch., 136 Mass. 610; Mason v. Daly, 117 Mass. 405.) All inferences of fact must be presumed to have been decided against the appellant, (Seamans v. Gibbs, 132 Mass. 240,) and the findings of fact cannot be revised, ( Wiley v. Hoyt, 120 Mass. 166;) and, even were the evidence reported, the decision of the single justice would not be reversed unless clearly erroneous, (Rau v. Von Zedlitz, 132 Mass. 164, 167; Reed v. Reed, 114 Mass. 372; Boston Music Hall Co. v. Cory, 129 Mass. 435.) But in this case the decision is not erroneous, and the decree conforms to the allegations and prayer of the bill. Gladwin v. French, 112 Mass. 186; Faxon v. Wallace, 98 Mass. 44. A tax on real estate is a lien only. Preston v. Boston, 12 Pick. 7, 13; Howe v. Boston, 7 Cush. 273, 275. Edwin F. Bowker's right in the land was neither greater nor less by reason of the sale to Ellis.

Another question is presented in this case, viz., that the plaintiff, being a minor, has the right to redeem. "In all cases of infants, a court in equity has jurisdiction." Story, Eq.Jur. §§ 1333, 1334, 1337, 1341. Infancy is a personal privilege, which cannot be taken away nor waived, even by a guardian. Pub.St. c. 139, §§ 29, 30; Oliver v. Houdlet, 13 Mass. 237, 240; Chandler v. Simmons, 97 Mass. 508, 511. In case of a deed from an infant, such infant may, by entry, within age, or after, reserve the title in himself, (Worcester v. Eaton, 13 Mass. 371, 375; Chandler v. Simmons, ubi supra, and cases cited;) and the infant plaintiff would seem to have the right to set aside, or at least redeem from, a tax sale.

OPINION

FIELD J.

These are appeals from final decrees in two suits in equity, heard upon issue joined and evidence. The evidence is not reported, and the only questions before us are whether the decree in each suit is warranted by the frame of the bill, and is consistent with the facts found and recited in the decree. The first suit was brought on May 26, 1885, by Elizabeth O'Day, a minor, who sues by her guardian, John W. McDonald, against Edwin F. Bowker, to redeem a lot of land from tax sales and conveyances made to the defendant in 1881 and 1882, for the payment of taxes assessed in 1880 and 1881. The second suit was brought on December 5, 1885, by the same plaintiff, against Sarah B. Bowker, to redeem the same lot of land from a tax sale and conveyance made to the defendant in 1883, for the payment of a tax assessed in 1882.

The final decree entered in the second suit is as follows: "This cause came on to be heard at a sitting of this court, December 22, 1885, upon its merits; and, it appearing that the parties to said cause were all before said court, evidence was then and there heard and duly considered by the court, after argument by counsel; and thereupon the following facts were found and determined upon by the court, to-wit: That one Margaret O'Day died November 29, A.D. 1871, owning the real estate described in the plaintiff's bill in fee-simple; that she left surviving, as her heirs at law, three children, Mary, Catherine, and Elizabeth O'Day, and also a husband, William O'Day; that the said Elizabeth O'Day is still a minor, and is the plaintiff, bringing this bill by her guardian, John W. McDonald; that William O'Day was appointed guardian of his three children aforesaid, March 25, 1872, and continued guardian of Mary and Catherine until their death, and of the survivor, to-wit, the plaintiff, until his own death, February 11, 1883; that said Mary O'Day died November 27, 1877, and said Catherine, February 21, 1880. In A.D. 1879 the estate described in the plaintiff's bill was duly assessed to the heirs of Margaret O'Day, and was duly sold for unpaid taxes, and conveyed to one J.W. French, by a deed of the collector of taxes of the city of Boston, September 3, 1880, and by said French conveyed to one Thomas Ellis, September 4, 1880. The tax of 1880 was duly assessed to the heirs of Margaret O'Day, and the said estate, being the estate described in the plaintiff's bill, was duly sold for non-payment thereof to Edwin F. Bowker, by a deed of the collector of taxes of the city of Boston, September 4, A.D.1881.

"The tax of A.D.1881 was duly assessed to Thomas Ellis, and said estate was duly sold for non-payment thereof to Edwin F. Bowker, by a deed of the collector of taxes of the city of Boston, September 6, 1882. The tax of 1882 was duly assessed to Edwin F. Bowker, and said estate was duly sold for non-payment thereof to Sarah B. Bowker, the defendant, by deed of the collector of taxes for the city of Boston, September 5, 1883; that the tax sale of September 5, 1883, is the sale set forth in the plaintiff's bill, from which the plaintiff claims redemption. The plaintiff had no guardian from the death of her father, William O'Day, February 11, 1883, to the appointment of John W. McDonald, March 29, 1885; that the plaintiff's bill was filed December 5, 1885; that on the death of his wife, Margaret O'Day, William O'Day had his curtesy in said estate until his death, and by the death of his daughter Mary, in 1877, inherited her third of the estate. At the time of assessment of tax of 1879, for which the estate was sold to Ellis, he and his surviving daughters owned each a third of the estate, he being guardian of the survivors.

"When the tax of A.D.1880 was assessed, by the death of his daughter Catherine, William O'Day had become owner of another third of the estate; that said William O'Day had thus become owner of two-thirds of the estate described in plaintiff's bill, and was guardian of plaintiff, and Thomas Ellis held under his deed, dated September 4, 1880, all the estate conveyed to French, September 3, 1880, when the estate was sold to Edwin F. Bowker, September 4, 1881, and September 6, 1882; that, when the estate was sold to Sarah B. Bowker, defendant, September 5, 1883, for the tax of 1882, Thomas Ellis held under his deed dated September 4, 1880, and Edwin F. Bowker held by his deed dated September 6, 1882, and that said bill was brought within five years from said sale to her; that previous to the bill the plaintiff's guardian sold the said estate by virtue of a license of the probate court duly granted to Mr. Conners, and made an agreement (not recorded) that he would return the purchase money, and said estate should be reconveyed, unless he should clear the premises from all tax sales theretofore made, and that Conners took possession under said deed; that no tender was made to defendant. Whereupon it is ordered, adjudged, and decreed that the plaintiff pay to the defendant, Sarah B. Bowker, the original sum by her paid to the collector of taxes to the city of Boston, with interest to date of decree, and lawful costs, amounting to $60.55; that the defendant, Sarah B. Bowker, execute, acknowledge, and deliver a deed of release of said estate from the tax sale, in said plaintiff's bill set forth, to the plaintiff; that the defendant pay to the plaintiff the costs of this suit, to be taxed by the clerk of this court."

The decree in the first suit is similar, except that this decree does not recite any facts concerning the tax sale to Sarah B. Bowker, as this was subsequent to the sales from which the first bill seeks to redeem the land; neither does it find that any conveyance had been made to "Conners" by the plaintiff's guardian.

This suit was brought within five years of the tax sale and conveyance, in 1880, to J.W. French, who conveyed to Thomas Ellis, while the second suit was brought more than five years after this sale. The sale to French, in 1880, is not set up in the answer to either bill; but the facts found and recited in the decrees, if material, cannot be disregarded, although they have not been pleaded. They are facts found by the court, and incorporated into the decrees, and, although perhaps not all of the facts, they are a part of the foundation of the conclusion of law pronounced by the court; and, if these facts are inconsistent with the conclusion, the decrees cannot be affirmed.

It appears by the decrees that every sale was made within two years of the time when the taxes were committed to the collector, and while they were a lien upon the land, ...