Meenes v. Goldberg

• Decision Date: 02 November 1954
• Citation: 122 N.E.2d 356,331 Mass. 688
• Parties: Jacob MEENES et al., Trs., v. Miriam V. GOLDBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 356

122 N.E.2d 356

331 Mass. 688

Jacob MEENES et al., Trs., v. Miriam V. GOLDBERG et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 27, 1954.

Decided Nov. 2, 1954.

Alfred N. Whiting, Asst. City Solicitor, Worcester, Harry J. Meleski, City Solicitor, Worcester, for defendant city of Worcester.

Joseph Talamo, Worcester, James J. Phillips, Worcester, with him, for plaintiff.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ. QUA, Chief Justice.

This bill seeks a declaratory decree as to the validity of a lien for a sewer assessment upon a parcel of land in Worcester. The Superior Court entered a decree that the lien had been discharged as the result of the filing in the registry of deeds of certificates in accordance with G.L. (Ter.Ed.) c. 60, § 23, as then most recently amended by St.1943, c. 478, § 3. ¹ The defendant city of Worcester appeals.

On July 12, 1938, the mayor and aldermen laid the assessment upon the defendants Davis, the then owners, and on April 30, 1940, postponed payment of the assessment until April 30, 1950, or until the land should be built upon, whichever should first occur. See St.1939, c. 282, § 3; G.L. (Ter.Ed.) c. 83, § 19, as appearing in St.1943, c. 252, § 4. On November 1, 1945, the land in question was conveyed to the plaintiffs, subject to the assessment. Under date of November 2 and November 3, 1945, on written application, the collector of taxes furnished certificates in accordance with section 23 of 'all taxes and assessments, water rates and charges' constituting liens on land including that here involved. The certificates were filed for record on November 8. The sewer assessment did not appear upon the certificates. The land was built upon during the year 1946, but no notice of such building was given to the treasurer or collector. On January 5, 1949, the plaintiffs conveyed the land to the defendant Goldberg, and on April 30, 1951, the defendant Goldberg conveyed it to the defendant, Lonstein, the deed reciting that the grantor assumed and agreed to pay the sewer assessment. The amount of the assessment with interest was added to the tax bill for 1951, and demand was made upon the defendant Goldberg. By instrument of taking dated December 19, 1952, the collector took the land for the city for nonpayment of taxes, including the sewer assessment. The defendant Lonstein has begun an action against the defendant Goldberg for breach of warranty against encumbrances, and the defendant Goldberg has threatened to bring a similar action against the plaintiffs, all on account of the alleged existence of the sewer assessment.

1. The first question is whether the Superior Court had jurisdiction of a bill for a declaration as to the continued validity of the lien for the assessment. The city in raising the point relies upon a series of cases holding that equity will not interfere to determine the validity of a tax, but will leave the statutory machinery to operate precisely according to the terms of the statutes. Welch v. Boston, 208 Mass. 326, 328, 94 N.E. 271, 35 L.R.A., N.S., 330; Warr v. Collector of Taxes of Taunton, 234 Mass. 279, 282-283, 125 N.E. 557, and cases cited. Maley v. Fairhaven, 280 Mass. 54, 56-58, 181 N.E. 798; Atlantic Pharmacal Co. v. Commissioner of Corporations & Taxation, 294 Mass. 485, 2 N.E.2d 474; Proprietors of the Cemetery of Mount Auburn v. Unemployment Compensation Commission, 301 Mass. 211, 16 N.E.2d 666. There are many cases to the same effect. For present purposes a sewer assessment is a tax. Kirchner v. Pittsfield, 312 Mass. 342, 344, 44 N.E.2d 634. Most of the cases denying relief in equity proceed upon the ground that the remedies through ordinary legal processes by petition for abatement or by paying the tax under protest and then recovering it back are adequate. See Oakley County Club v. Long, 325 Mass. 109, 112-113, 89 N.E.2d 260. Some cases also mention the public necessity for prompt payment of taxes. Greenhood v. MacDonald, 183 Mass. 342, 67 N.E. 336.

The exclusion of equitable remedies from this field is not necessarily total. In exceptional circumstances where other remedies are not deemed adequate, equity may intervene. Atlantic Pharmacal Co. v. Commissioner of Corporations & Taxation, 294 Mass. 485, 487-488, 2 N.E.2d 474; Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 281-282, 5 N.E.2d 720. And in the present instance it may be noted that the real question is not the validity of the assessment itself but rather the continued validity of the lien upon the land, a matter in which all seven parties to the suit have an interest.

But the most convincing reason for sustaining the bill is found in G.L. (Ter.Ed.) c. 231a, inserted by St.1945, c. 582, § 1, and setting up the present procedure for declaratory judgments. Section 9 of this chapter makes it particularly plain that the statute is to be 'liberally construed and administered * * * to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations.' Commonly relief under this chapter should not be denied because of the possibility of some other form of remedy, if the case presented comes within the general scope of the chapter and no special reasons exist against the use of the declaratory process. We think those conditions are met in this instance. Declaratory procedure has been widely employed to determine rights and duties in connection with the assessment and collection of taxes. ² These rights and duties must be determined at some time. Injunctions delaying the collection of the tax are not a necessary part of declaratory procedure and caution should be exercised in granting them. We believe that declaratory procedure subject as it is, to the discretion of the court and under its immediate control will prove a convenient means of promoting justice and will not unduly interfere with the collection of taxes.

We think also that the Superior Court was a proper court to entertain jurisdiction of the cause. Chapter 231A, § 1, places declaratory procedure in the Supreme Judicial Court, the Superior Court, the Land Court, and the Probate Courts, 'within their respective jurisdictions.' It would seem that the proper court must be determined largely by analogy to the kinds of jurisdiction generally exercised by these courts. The rule of liberal construction should prevail in this matter of jurisdiction, as in other matters relating to declaratory procedure. The Superior Court has general equity jurisdiction and can entertain a bill to remove a cloud on title. It by no means follows that the suit could not have been brought in this court or in the Land Court.

2. We think that the judge rightly ruled that the lien had been discharged. It is provided by G.L. (Ter.Ed.) c. 60, § 23, as amended, that 'The collector of taxes for any...