McDonough v. Everett

• Decision Date: 03 February 1921
• Citation: 129 N.E. 681,237 Mass. 378
• Parties: McDONOUGH v. EVERETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 378

129 N.E. 681

McDONOUGH

v.EVERETT.

Supreme Judicial Court of Massachusetts.

Feb. 3, 1921.

Appeal from Land Court, Norfolk County; C. T. Davis, Judge.

Petition to register title to land by Peter J. McDonough against John Everett. From decree for petitioner, respondent Everett appeals. Decree affirmed.John Everett, pro se.

Alton W. Eldredge, of Boston, for appellee.

PIERCE, J.

This is a petition to register the title to three parcels of land in the town of Dedham, all being parts of land shown on the plan entitled ‘Plan No. 1 of Building Lots Belonging to the Elmwood Land Co., May 6, 1871, William A. Garbett, Surv.,’ recorded in ‘Book of Plans No. 6, plan 202, or which is the same thing as plan No. 202 on file.’ The respondent claims title to these parcels under three several tax deeds, ‘one dated January 26, 1892, recorded with Norfolk Deeds, Book 687, page 503, one other dated January 28, 1897, recorded with said Deeds, Book 778, page 13, and the other dated January 28, 1897, recorded with said Deeds, Book 778, page 20.’ The respondent also claims titles to these parcels by adverse possession.

The case was referred under R. L. c. 128, § 35, to a master who made a report on the issue of the validity of the tax titles. To this report eleven exceptions were taken by the respondent and three by the petitioner. After a hearing on the report and a rehearing on the question of adverse possession, the land court overruled the respondent's exceptions to the master's report numbered 1, 2, 3, and 9.

These exceptions are to the admission in evidence of the assessments, tax lists, and advertisements of sale, the respondent contending that the owner's remedy was barred. The ruling was plainly right; the lapse of time established presumptively, not conclusively, the performance of every fact essential to the validity of the tax deeds. St. 1911, c. 370; St. 1915, c. 237, § 1. Blossom v. Cannon, 14 Mass. 177;Commonwealth v. Carr, 143 Mass. 84, 88, 9 N. E. 28.

The court also overruled the exceptions of the respondent to the master's report numbered 4, 5, 6, and 7, in regard to the statements of the master as to the assessments of the Munroe and Madison street lots to owners unknown, and to his finding that the assessments, and consequently the tax titles based thereon, were invalid. The ruling of the court was right. Legally land cannot be assessed to owners unknown if the assessor by reasonable diligence can learn who is the owner in fact, the owner of record, or the person in actual possession of the land to be taxed. P. S. c. 11, § 13; R. L. c. 12, § 15. Desmond v. Babbitt, 117 Mass. 233;Hough v. North Adams, 196 Mass. 290, 82 N. E. 46;Stone v. New England Box Co., 216 Mass. 8, 11, 102 N. E. 949;J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 522, 105 N. E. 370, L. R. A. 1915A, 334. In the case at bar the assessors knew that the lots were a part of the Elmwood Land Company property and described the several parcels as lots on the Elmwood Land Company's recorded plan. A search of the records would have disclosed quickly and readily that the record title to these lots was in Cole and Towle. It follows that the assessment to owners unknown was invalid, and that the tax sale based thereon was void. J. L. Hammett Co. v. Alfred Peats Co., supra.

The respondent's tenth exception is to the ruling of the master ‘that any of the advertisements of sale are invalid by reason of a misdescription of the property.’ The advertisement of sale of the Elmwood avenue lot was published as follows:

‘George M. Briggs about 9,000 feet of land on Elmwood avenue being parts of lots 53 and 54 on plan of the Elmwood Land Company'sland recorded with Norfolk Deeds as plan No. 202 on file. Tax, 3.20.’

The exception was properly overruled; the description of the land was not sufficiently definite to enable those who attended the sale as prospective purchasers to identify the premises. Williams v. Bowers, 197 Mass. 565, 567, 84 N. E. 317;Conners v. Lowell, 209 Mass. 111, 120, 95 N. E. 412, Ann. Cas. 1912B, 627.

The advertisement of the sale of lots 6 and 84 was as follows:

‘Owners unknown about 12,272 feet of land on Munroe street, being lot No. 6 on a plan of the Endicott Land Company's land recorded with Norfolk Deeds as plan No. 202 on file. Tax, $9.84.

‘Also

‘Owners unknown about 12,000 feet of land on Madison street, being lot No. 84 on plan last above named. Tax, $5.56.’

The court overruled the exception of the respondent as to the finding of the master in regard to the Elmwood avenue lot, and sustained it as to the other two lots.¹ The error in the name of the land company did not make the description misleading or uncertain. Welsh v. Briggs, 204 Mass. 540, 552, 90 N. E. 1146. The petitioner's first exception should be overruled; the assessment there referred to was sufficiently definite for the information of the parties interested.²Roberts v. Welsh, 192 Mass. 278, 78 N. E. follows: The owners of these parcels of land at the time of the several assessments and several sales were nonresidents; and thereafter they continued to be nonresidents, so far as the record discloses, during the entire period covered by the alleged adverse holding of the respondent. The lots in question at the time of the tax sales were pasture land and woodland, and have remained unimproved land. Much of the original heavy timber upon them has been cut or burned. The pasturage has run out, and the lots have grown up to sprout land with occasional patches of large trees and open spaces. Poor people and others in the neighborhood have freely cut wood from the lots other than the Munroe street lot. When the parcels were sold Elmwood avenue, Madison street and Munroe street existed only on paper. There has been no continuous physical occupation of the lots by the respondent, and none whatever by the petitioner or his predecessor in title. The respondent, immediately after receiving his tax deeds, in 1892 and in 1896, entered upon the respective tracts described therein for the purpose of taking possession thereof, put up no trespassing signs and planted on each lot two linden trees and two fruit trees together with some blackberry bushes, all of which he purchased for that purpose. How long the no trespassing sign remained does not appear. The trees were killed within two years by cattle browsing on them. The respondent picked blackerries on the lots and so have other people. The respondent has also at times gone upon the lots with people to whom he offered them for sale. Taxes have been paid by the respondent upon all of the lots since he bought them at the respective tax sales, and he has also paid...