Mcgee v. City of Salem
| Decision Date | 11 May 1889 |
| Citation | 21 N.E. 386,149 Mass. 238 |
| Parties | McGEE et al. v. CITY OF SALEM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.A. Benjamin, for plaintiffs.
F.L Evans, for defendant.
We understand from the exceptions that the tax on the land upon which the greenhouses stood was assessed to Emmerton, and that in this assessment the greenhouses were not included and that the tax on the greenhouses, considered apart from the land, was assessed to Putnam as a tax on real estate. This separation of the greenhouses from the land on which they stood implies that the assessors considered that the greenhouses belonged to Putnam as personal property. These taxes were assessed as of May 1, 1884. Putnam, after this tax was assessed to him, became an insolvent debtor; and the assignees of his estate on January 1, 1886, sold the greenhouses to the plaintiffs. The plaintiffs, therefore, so far as appears, took an absolute title to the greenhouses unless there was a lien on them in favor of the city of Salem for the payment of the tax assessed to Putnam. Pub.St. c. 11, § 3, provides that "real estate, for the purposes of taxation, shall include all lands within this state, and all buildings and other things erected on or affixed to the same;" and section 53, Id., provides for the separate description and valuation of all buildings and lots of land assessed; and section 13, Id., provides that "taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the first day of May;" and section 20, Id., provides that "all personal estate, within or without the commonwealth, shall be assessed to the owner in the city or town where he is an inhabitant on the first day of May, except," etc.
In Milligan v. Drury, 130 Mass. 428, it was, in effect, decided that buildings affixed to land, under an agreement between the owner of the land and the owner of the buildings that they should remain personal property, might be assessed with the land to the land-owner, and it was said that "the assessors were not obliged to inquire into the private contracts between the parties, but had the right to do as they did, and assess together as real estate the land and the buildings affixed thereto." It follows from this decision that the land and the buildings affixed thereto could be assessed together as real estate to the person in possession of the land and the buildings on the 1st day of May as well as to the owner of the land. The question did not arise in that case whether a tax can be assessed upon buildings which are personal property, as a separate tax from that assessed on the land to which the buildings are affixed, and whether, if a tax can be so assessed, the buildings should be taxed as real or personal estate was not considered. There are difficulties, whatever view is taken. If the owner of the buildings is an inhabitant of another town within the commonwealth than that in which the buildings are situated, and the buildings may be assessed to him in one town as personal property, and also may be assessed in the other town as a part of the land to the owner or person in possession, then there may be double taxation, at the election of the assessors of the different towns. While the statutes expressly declare that, for the purposes of taxation, real estate shall include buildings affixed to land, and expressly provide for a separate description and valuation of the buildings and the lots of land, yet the provisions relating to the collection of a tax on real estate by a lien upon it, and a sale of it, or of the rents and profits, or by the purchase of the real estate in behalf of the city or town, or by the taking of it for the city or town, as well as the provisions for the redemption by the owner of real estate taken or sold, are in many respects inapplicable to buildings which are personal property, and which must at some time be removed from the land, or taken down, if the owner of the land requires it. Pub.St. c. 12, §§ 24-58. Buildings affixed to land are in their nature real property, and they are only considered as personal property between the parties to an agreement making them such and those who purchase the land with knowledge of the agreement. They pass as a part of the land to a purchaser for value, without notice. Hunt v. Iron Co., 97 Mass. 279; Dolliver v. Ela, 128 Mass. 557.
The questions we are discussing were considered in...
To continue reading
Request your trial