Massachusetts Hosp. Life Ins. Co. v. Shulman

• Citation: 12 N.E.2d 856,299 Mass. 312
• Parties: MASSACHUSETTS HOSPITAL LIFE INS. CO. v. SHULMAN et al.
• Decision Date: 02 February 1938
• Court: United States State Supreme Judicial Court of Massachusetts

299 Mass. 312

12 N.E.2d 856

MASSACHUSETTS HOSPITAL LIFE INS. CO.

v.SHULMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 2, 1938.

Suit in equity in the superior court by the Massachusetts Hospital Life Insurance Company against Ruben Shulman, alias & Shulman & Miller Furniture Co., Inc., to recover taxes assessed against named defendant which were paid by plaintiff. From an interlocutory decree sustaining a demurrer to plaintiff's bill with leave to amend, entered by Gray, J., and from an order denying plaintiff's motion to amend and a final decree dismissing the bill, entered by Williams, J., plaintiff appeals.

Affirmed.Appeals from Superior Court, Suffolk County; Gray and Williams, judges.

H. Snyder and S. L. Bailen, both of Boston, for appellant.

H. J. Stein, S. B. Stein, and L. Shulman, all of Boston, for appellee Shulman.

COX, Justice.

The defendant Shulman's demurrer to the plaintiff's bill was sustained with leave to amend. The plaintiff seasonably moved to amend but its motion was denied. A final decree was entered dismissing the bill with costs. The plaintiff appealed from the interlocutory decree sustaining the demurrer, the order denying its motion to amend and the final decree.

The material allegations of the bill are: ‘1. That on or about August 31, 1917, the Respondent Ruben Shulman, alias, became the owner of the equity of the premiseslocated at 1901-1903 Washington Street, and 2-10 Worcester Place, in Boston, County of Suffolk, and that your Complainant was the holder of the first mortgage on the said property’; that on April 1, 1934, April 1, 1935, and January 1, 1936, the premises were assessed to Shulman as required by statute; that on or about April 3, 1936, the plaintiff, as holder of the first mortgage, took possession of the premises for breach of conditions contained in the mortgage and on or about that date sold the premises at foreclosure sale ‘which said foreclosure sale was subject in no way to unpaid taxes'; that on or about that date there remained certain unpaid balances on the taxes assessed to Shulman for the year 1934 amounting to $1,531.23 and for the year 1935 amounting to $1,409; that the proportional amount of the tax for the year 1936 from January 1, 1936, to April 3, 1936, was $352.51; that there was a primary liability on Shulman to pay those taxes; that the plaintiff had made several demands on Shulman to pay the outstanding taxes but that he had failed so to do; ‘11. That your Complainant paid to the City of Boston the above stated real estate taxes on the aforesaid premises which were assessed to the said Respondent, Ruben Shulman, alias, and that said Respondent, Ruben Shulman, alias, therefore owes your Complainant the above-stated amounts, viz., $3,292.74, which was paid by the said Complainant together with interest from April 3, 1936.’ Further allegations of the bill are to the effect that Shulman is the owner of certain stock in the defendant corporation, and the plaintiff asks that its claim be established, the stock sold and the proceeds applied to the payment of the claim, G.L.(Ter.Ed.) c. 214; 3(8). The grounds of the demurrer are: (1) The matters contained in the bill are insufficient in law to enable the plaintiff to maintain its suit; (2) the plaintiff's bill does not set forth a cause of action. The plaintiff's motion to amend was by striking out the quoted paragraphs 1 and 11 of its bill and substituting the following: ‘1. That on or about August 31, 1917, the Respondent, Ruben, Shoolman, alias, became the owner of the premises situated at 1901-1903 Washington Street, and 2-10 Worcester Place, in Boston, County of Suffolk, and remained the owner of said premises until on or about April 3, 1936; that your Complainant was the holder of the first mortgage on the said property, and remained the holder of said first mortgage until on or about April 3, 1936, when said premises were sold at foreclosure sale, as hereinafter set out’; ‘11. That your Complainant in order to preserve its security and prevent the creation of a superior lien in said premises, paid to the City of Boston the aforesaid real estate taxes on the premises at 1901-1903 Washington Street, and 2-10 Worcester place, Boston, County of Suffolk, which were assessed to the said respondent, Ruben Shoolman, alias, as aforesaid, and that said Respondent, Ruben Shoolman, alias, accordingly owes your Complainant said amount, viz. $3292.74, which was paid by said Complainant, together with interest.’ The plaintiff contends that it is entitled to be subrogated to all rights of the tax collector by reason of having paid the taxes in the circumstances alleged in the bill, including the enforcement of the personal obligation of the taxpayer. See G.L.(Ter.Ed.) c. 60, § 35. We do not think the allegations support that contention and are of the opinion that the demurrer was sustained rightly.

It has been held that although there is a lien upon the land for the assessed tax, G.L.(Ter.Ed.) c. 60, § 37, as amended, the primary liability to pay it is upon the person assessed. Dunham v. Lowell, 200 Mass. 468, 86 N.E. 951; Equitable Trust Co. of New York v. Kelsey, 209 Mass. 416, ...