Glazier v. Everett

• Decision Date: 23 May 1916
• Parties: GLAZIER v. EVERETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 184

112 N.E. 1009

GLAZIER

v.EVERETT.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1916.

Appeal from Superior Court, Norfolk County.

Petition by L. Gordon Glazier against John Everett to redeem land sold for taxes. From a decree for petitioner, defendant appeals. Decree ordered modified.

John Everett, of Canton, pro se.

Frank H. Stewart, Waldron H. Rand, Jr., and John A. McNamara, all of Boston, for appellee.

RUGG, C. J.

This is a petition under part 2, § 76, of the Tax Act (St. 1909, c. 490), to redeem land sold for taxes. The case was heard by a judge of the superior court, who, without making any finding of facts, entered a decree in favor of the petitioner. The evidence was taken by a commissioner. No rulings of law were requested and no exceptions taken. The defendant's appeal brings the case here. The entry of the decree implies a finding of every fact essential to the right entry of that decree permitted by the evidence. It is for this court to review the evidence and decide the case on its own judgment, both as to facts as well as law. But under the familiar rule, where oral testimony has been heard, the finding of the trial court as to facts, either expressly made or necessarily implied by his disposition of the case, will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263.

The sale to the defendant was made upon the tax assessed for the year 1907 to one Devlin. No question has been made as to the correctness of the assessment and the regularity of the sale, which occurred in September, 1909.

The defendant, who was purchaser at the tax sale, resided in Canton. He did not appoint an agent residing in Sharon, where the land was situated, or in Dedham, where the deed was recorded, authorized to release the land, and he did not file with the treasurer of Sharon, nor in the registry of deeds at Dedham, a statement of his residence and place of business. Thus he failed wholly to comply with the provisions of section 46 of part 2 of the tax act. It was held in Davidson v. Stafford, 210 Mass. 145, 96 N. E. 63, that such failure was sufficient ground to warrant the sustaining of a bill in equity for redemption within the six years limited by section 76, even though after the expiration of the two years, which is the usual limit for redemption from tax sales, fixed by section 59. That case governs the present upon that point. The question is whether the general equities disclosed by the evidence require a decree in favor of the plaintiff.

A declaration of trust signed by John A. Bowman, dated June 30, 1899, recited amongst other matters the conveyance of certain lands therein described to him as trustee for the benefit of holders of certificates in an unincorporated association of named individuals, who also signed the declaration. The name of the association was the Oakland Park Land Company. The general purposes of the trust were to manage, develop and sell the real estate therein described, and to purchase other real estate, and to hold and dispose of all of it in accordance with the trust.

The land in question was conveyed to John A. Bowman as trustee, by deed recorded in May, 1907. He died in February, 1908. The declaration of trust provided that, in case of the death of the trustee, his successor might be appointed by the judge of the probate court for the county where the land was situated. In accordance with this provision, George M. Glazier was appointed trustee in October, 1908. He died in February, 1914, and the present plaintiff was appointed trustee by two shareholders in the trust holding not less than a majority of the shares, which was another method of filling a vacancy in the position of trustee provided by the declaration of trust. This declaration of trust was recorded in the registry of deeds for the county where the land was located. Although the declaration of trust was not referred to specifically in the deed by which the land was conveyed to John A. Bowman, yet that deed recited the consideration as ‘paid by John A. Bowman * * * as he is trustee of a voluntary association known as the Oakland Park Land Company,’ and the grant was ‘to said John A. Bowman, trustee,’ and the habendum ‘to the said John A. Bowman, trustee, and his successors, heirs and assigns.’ Although the conveyance is not expressed with accuracy, yet its intent is not difficult to discover. It disclosed the payment of the consideration by Bowman as trustee for Oakland Park Land Company. That fact would be enough to raise a resulting trust in favor of the one paying the consideration, even though conveyance had been to Bowman alone. Howe v. Howe, 199 Mass. 598, 85 N. E. 945,127 Am. St. Rep. 516. But the grantee named is ‘John A. Bowman, trustee.’ This in connection with the rest of the deed shows that the conveyance was intended to be to Bowman in his capacity as trustee of the association. It is enough to disclose a design to bring it under the operation of the declaration of trust. Byam v. Bickford, 140 Mass. 31, 2 N. E. 687. The effectuation of this intent is not inconsistent with any rule of law or incompatible with the terms of the grant. Simonds v. Simonds, 199 Mass. 552, 554, 85 N. E. 860,19 L. R. A. (N. S.) 686.

The title to the land vested in Bowman as trustee. At common law the appointment of new trustees in succession by parties (not in execution of a special power), did not vest the title in the new trustees without conveyance. Peabody v. Eastern Methodist Society in Lynn, 5 Allen, 540. It was said by Wells, J., in National Webster Bank v. Eldridge, 115 Mass. 424, 428, that:

‘The appointment of the trustees [in succession] not having been made under the authority of the statute, it would follow * * * that the provisions of Gen. St. c. 100, § 9, would not operate to vest the title in them.’

That decision was rendered in 1874. The difficulty there pointed out was remedied by St. 1878, c. 254, whereby it was provided that the title to property held by...