F. H. Whittlesey Co. v. Town of Windsor Locks

• Decision Date: 19 April 1916
• Citation: 90 Conn. 312,97 A. 316
• Court: Connecticut Supreme Court
• Parties: F. H. WHITTLESEY CO. v. TOWN OF WINDSOR LOCKS.

97 A. 316

90 Conn. 312

F. H. WHITTLESEY CO.

v. TOWN OF WINDSOR LOCKS.

Supreme Court of Errors of Connecticut.

April 19, 1916.

Appeal from Court of Common Pleas, Hartford County; Edward L. Smith, Judge.

Action by the F. H. Whittlesey Company against the Town of Windsor Locks. From a judgment for defendant, plaintiff appeals. No error.

William M. Maltbie, of Hartford, for appellant. Matthew P. Kelly, of Hartford, for appellee.

WHEELER, J. The complaint claims a judgment requiring the defendant, the town of Windsor Locks, to cancel a certificate of a lien for a tax against its real estate, listed and assessed against its predecessor in title, the Whittlesey Paper Company.

The complaint recites that on March 31, 1908, the taxes of this company, which were laid October 1, 1906 and became due April 1, 1907, not having been paid the defendant town caused to be recorded in its town records a certificate to extend the tax lien on said real estate under the provisions of General Statutes, § 2403, and the amendments thereto, and that this certificate included in one amount the entire taxes laid against both the real and personal property of the company, and hence was void and did not extend the tax lien. The answer admits these allegations, and further recites that on October 1, 1906, the paper company owned this real estate and Laura V. Whittlesey was the holder of a mortgage thereon, which by judgment of foreclosure she, on April 1, 1007, became the owner in fee of; that the General Assembly in 1909 passed a validating act (Pub. Laws 1909, c. 263) § 3, providing, among other things, that "no tax lien, a certificate to continue which has heretofore been recorded * * * shall be deemed to be invalid * * * because the amount of the tax secured by said lien was or is incorrectly stated therein"; that Mrs. Whittlesey conveyed the property to the plaintiff July 30, 1914; and that the defendant has many times offered to discharge so much of the tax as exceeds the amount laid on the real estate.

The plaintiff demurred to the answer on two grounds, the first is general and cannot be considered, the second because the validating statute did not create or revive a tax lien on this real estate, as thereby the vested rights of the plaintiff in the real estate would have been impaired. The trial court overruled the demurrer, and the question involved in the second ground of demurrer is the only question for determination upon the appeal.

This tax lien continued as a valid lien until April 1, 1908. It was not legally extended under General Statutes, § 2403, since it included in the amount of the taxes the amount as assessed upon the personal property as well as the real. Meyer v. Burritt, 60 Conn. 117, 22 Atl. 501; Hellman v. Burritt, 62 Conn. 438, 26 Atl. 473; New Britain v. Mariners' Bank, 67 Conn. 528, 532, 35 Atl. 505; Union School District v. Bishop, 76 Conn. 695, 699, 58 Atl. 13, 66 L. R. A. 989.

Our question is whether the invalid lien has been made valid by the validating act. The plaintiff does not contend that this lien so extended would not have been good under the validating act had the paper company continued in ownership of this real estate. It insists that as against Mrs. Whittlesey, the mortgagee, who secured title by judgment of foreclosure prior to the passage of the validating act, and hence as against the plaintiff, her successor in title, the validating act is inoperative and the lien void, since it impairs the vested rights of the...