Dunham v. City of Lowell

• Decision Date: 06 January 1909
• Citation: 86 N.E. 951,200 Mass. 468
• Parties: DUNHAM v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 468

86 N.E. 951

DUNHAM v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1909

COUNSEL

Harrison

Dunham & Son, for complainant

J Gilbert Hill, City Sol., for respondent.

OPINION

HAMMOND J.

1. The tax was properly assessed to Brown. He held the legal title as trustee, at least so far as respected the question of taxation. Brown v. Wright, 194 Mass. 540, 80 N.E 612. It was therefore a valid lien upon the land.

2. The right to abatement is solely a creature of statute. Rev Laws, c. 12, § 73, upon which the petitioner bases his right to apply for an abatement, provides that 'a person aggrieved by the taxes assessed upon him' may make such application; and the question is whether within the meaning of the statute the petitioner is a person upon whom the tax was assessed. He was not the owner of the land on May 1, 1907, as of which time the tax was assessed, and the tax could not have been legally assessed to him. He contends, however, that it is primarily a charge upon the land, and that, inasmuch as he has since become the owner of the land, he is interested in the amount of the tax, which is excessive, and that in this way he is aggrieved by the assessment made as he says upon it; or, more briefly stated, the assessment for which the land may be held is an assessment upon him within the meaning of the statute.

The trouble with this contention is that, while in a certain sense and as between certain persons a tax may be regarded as primarily a charge upon the land (Swan v. Emerson, 129 Mass. 289, 291), yet it is not so as between the assessor or collector and the person assessed. As between them the tax is primarily a pecuniary imposition upon the latter, and the lien on the land is to be regarded simply as security of which the collector may avail himself in case of the default of the person assessed. Indeed there never is any lien upon real estate for taxes unless given by statute (see the cases cited in Cooley on Taxation [3d Ed.] p. 865, note 6), and our earlier tax acts contained no provision for such a lien except possibly in the case of nonresidents. See, as examples, St. 1780, p. 84, c. 43; St. 1781, p. 503, c. 16. A provision for such a lien as to real estate in Boston however, appears in the tax act approved February 23, 1822, being St. 1821, c. 107, as found in 2 Laws Mass. p. 577. It is stated in the note by the commissioners to this statute that this feature never had appeared before in a tax act. In the tax act of 1824 the principle was extended for the first time to all taxes on real estate throughout the commonwealth, and ever since it has been one of the features of our tax system. Hayden v. Foster, 13 Pick. 492; St. 1830, c. 151, § 9. At first there does not seem to have been any limit of time expressly given to the existence ...