McCarty v. Greenlawn Cemetery Ass'n

• Decision Date: 29 October 1962
• Citation: 158 Me. 388,185 A.2d 127
• Parties: Charles M. McCARTY v. GREENLAWN CEMETERY ASSN., Maynard A. Ellis and Gladys E. Ellis.
• Court: Maine Supreme Court

Page 127

185 A.2d 127

158 Me. 388

Charles M. McCARTY v. GREENLAWN CEMETERY ASSN., Maynard A. Ellis and Gladys E. Ellis.

Supreme Judicial Court of Maine.

Oct. 29, 1962.

David A. Nichols, Camden, for plaintiff.

Niehoff & Niehoff, Waterville, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SULLIVAN, Justice.

Plaintiff filed his complaint to remove a cloud upon title to real estate in Swanville Maine. R.S. c. 172, §§ 52, 54, as amended. Defendants have answered and the case is before this Court upon report.

Plaintiff on June 21, 1955 had been granted a mortgage upon the premises in controversy by the record owner, Maple Terrace Farms, Inc. Waldo County Registry of Deeds, Book 527, Page 486. Plaintiff foreclosed that mortgage by a publication process devised to acquire title for him in default of a redemption upon the expiration date, May 7, 1959. Waldo Registry, Book 565, Page 171; R.S. c. 177, §§ 5, 7.

On July 3, 1956 Maple Terrace Farms, Inc. purported to convey a 5 acre parcel of the mortgaged real estate to Maine School Building Authority but the record in this case yields no evidence of any release by the plaintiff-mortgagee. Waldo Registry, Book 535, Page 246. The report of the pre-trial conference and order, however, informs us that the 5 acre lot has been eliminated by the parties from the issues here.

Real estate taxes assessed against the property in litigation for the tax year 1957 were committed for collection on April 22, 1957 and have never been paid. Seasonably the Tax Collector on May 9, 1958 commenced forfeiture process by tax mortgage liens. R.S. c. 91-A, § 88 ff. The statutory period for redemption of such self foreclosing, priority mortgage terminated on November 9, 1959. The municipality of Swanville thereafter, on February 10, 1960 conveyed all its title to a portion of the controverted real estate to Green Lawn Cemetery Association and on March 4, 1960 quitclaimed the rest of that property to Maynard A. and Gladys E. Ellis. Waldo Registry, Book 575, Page 329; Book 576, Pages 1, 8.

The issue formulated by consensus of these litigants is as follows:

'If the tax liens (for 1957 taxes) are valid, judgment is to be entered for the defendants; if invalid, and subject to amendment, the defendants reserve the right to amend in accordance with the law and facts. If the tax liens (for 1957 taxes) are invalid and their invalidity cannot be corrected by amendment, then judgment is to be entered for the plaintiff.'

The Valuation Book of the Swanville assessors for the tax year 1957 contains this entry:

'Description . . .. As recorded at this (Waldo) County Registry of Deeds--Land bounded (Book) 469/ (Page) 205.

"Description .... As recorded at this (Waldo)

County Registry of Deeds--Land bounded (Book)

469/ (Page) 205

                No. of Lot  No. of Acres  Value of Land  Value of Bldgs
                  H                                           $600
                  B                                            500
                  B                                            300
                  Sh             94            700             100
                                100            400
                

Total Value of real estate--$2,600

Robinson, Doris J. and/or Maple Terrace Farms,

Inc."

It is to be noted that 2 distinct units of real estate had been thus assessed--one composed of 94 acres of land valued at $700 with buildings thereon individually appraised to an aggregate amount of $1,500--the other consisting of 100 acres of land valued at $400. The assessors had obviously estimated and recorded

'* * * separately the land value, exclusive of buildings, of each parcel of real estate.' R.S. c. 91-A, § 36; P.L.1955, c. 399, § 1.

The testimony in this case verifies the existence of 2 parcels of real estate. Witnesses stated that there were 2 divisions of the property set apart from each other by a county road known as Route 141 and that all of the buildings were located upon but one of those property divisions.

For a description of the real estate assessed the foregoing assessment record makes reference to the deed from Archie Philo to Doris Joan Robinson, dated October 15, 1948 and recorded in Waldo Registry in Book 469 at Page 205. The Philo deed is in the chain of title prior in time to the deed from Doris Joan Robinson to Maple Terrace Farms, Inc. Waldo Registry, Book 497, Page 142, supra. The Philo grant conveyed 4 parcels of property and included in its disposition more real estate than is described in the Robinson--Maple Terrace Farms, Inc. instrument. The assessors made no effort to allocate any of the 4 parcels of the Philo deed to either of the separately estimated land items and values of the assessment record.

On May 9, 1958 the Tax Collector filed in the Registry of Deeds 2 lien certificates against:

'Maple Terrace Farm, Inc. Doris Robinson ..... as owner'

On lien certificate was for an unpaid tax of $32.80 and claimed a lien upon the real estate described as:

'Land

Book 469 page 205 Waldo County

Registry of Deeds'

The other lien certificate was for an unpaid tax of $181.40 and claimed a lien upon the real estate described as:

'Land and Buildings

Book 469 page 205 Waldo County

Registry of Deeds'

Manifestly the Tax Collector filed a lien against each of the 2 units of real estate which the assessors had separately valued in their Valuation Book and through each lien attempted to effect forfeiture of all of the land described in the Philo to Robinson deed recorded in Waldo Registry in Book 469, Page 205. The second lien in addition sought to acquire title to the buildings on such land. In fine each lien certificate for the unpaid tax upon one of 2 physically detached and separately taxed portions of a gross property aspired and presumed to expropriate the gross property in its entirety. Were such technique of the Tax Collector permissive the taxpayer would be obligated to pay all taxes upon the gross property in order to redeem from forfeiture either one of the individually taxed units.

In derogation of the mandate in R.S. c. 91-A, § 88 neither lien certificate contained a description of the real estate on which the respective tax had been assessed.

Notwithstanding the presumption of validity conferred upon tax mortgage liens by R.S. c. 91-A, § 93, in assaying established defenses to such liens the Court must apply to such forfeiture process:

'* * * that strict construction which well-established rules of law require to be put upon statutes affecting the property of the citizen, and by which it may be taken from him, as by taxation * * *.' Carlton v. Newman, 77 Me. 408, 417, 1 A. 194, 199.

'The principle that strict compliance with statutory requirements is necessary to divest property owners of their titles for non-payment of taxes has become firmly established by a long line of decisions running back to one rendered by our first Chief Justice at the beginning of our statehood, Porter v. Whitney, 1 Me. 306. * * *' Inhabitants of Town of Warren v. Norwood, 138 Me. 180, 183, 24 A.2d 229, 231.

'It is a familiar principle that when a statute imposing or enforcing a tax or other burden on the citizen, even in behalf of the state, is fairly susceptible of more than one interpretation, the court will incline to the interpretation most favorable to the citizen. * * * If ...