Morison v. Assessors of Brookline

• Decision Date: 24 May 1943
• Citation: 313 Mass. 746,49 N.E.2d 237
• Parties: HORACE MORISON, executor, v. ASSESSORS OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 746

49 N.E.2d 237

HORACE MORISON, executor, v. ASSESSORS OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1943

April 6, 1943.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Taxation, Real estate tax: abatement, apportionment, payment. Notice. Sale Of real estate. Real Property, Sale.

A former owner of a tract of land, sold by him, subsequent to the assessment of a tax thereon, to a purchaser who subdivided it into lots which he sold to various persons, was not entitled to challenge the validity of an apportionment of such tax among the several lots under G.

L. (Ter. Ed.) c 59, Section 79, et seq., as amended, on the ground that neither he nor certain of the owners of the lots received the notice of the proposed apportionment prescribed by Section 80; nor, after the apportionment and payment of the entire tax as apportioned by the owners of all the lots, was he entitled to file or prosecute an appeal to the

Appellate Tax Board from a refusal of the assessors to abate the tax.

Upon a sale of real estate, a deduction allowed the purchaser from the purchase price as an adjustment to cover the part of an outstanding tax proportionate to the period from the assessment date to the date of the sale gave the seller no standing as one who had made a part payment of the tax to the town.

APPEAL from a decision by the Appellate Tax Board. S.D. Ferguson, for the taxpayer.

E. L. Twomey, for the assessors.

RONAN, J. This is an appeal from a decision of the Appellate Tax Board dismissing an appeal from the refusal of the assessors to grant an abatement of the tax for 1941 upon real estate in Brookline which the appellant owned on January 1, 1941. The tax was assessed to the appellant.

The appellant owned a large tract of land in Brookline which he conveyed on April 1, 1941, to one Rhodes, who assumed liability for the payment of the tax and was credited with the sum of $1,152.02 from the purchase price as an adjustment to cover the proportionate share of the tax for the period from January 1 1941, to April 1, 1941. The tax for 1941 upon this realty amounted to $4,151.25. The land was subdivided by the purchaser into sixteen lots and sold to various persons. Two of these persons on July 1, 1941, filed with the assessors, in accordance with G. L. (Ter. Ed.) c. 59, Section 79, as amended by St. 1938, c. 150, Section 1, a written request, containing the names and addresses of all the other owners, for an apportionment of the tax. The assessors did not send any notice of the filing of this request or of the time appointed for making the apportionment "to every person interested in said real estate whose address is known to them." G. L. (Ter. Ed.) c. 59, Section 80. The assessors apportioned the tax among the several lots on July 11, 1941, and tax bills were sent to the owners of these respective lots. The appellant filed an application for an abatement with the assessors on July 16, 1941, in which he stated that the real estate was assessed at more than its fair cash value. The assessors took no action upon this application. The owners of thirteen lots paid the taxes apportioned to them and each secured an abatement upon his tax. Three other owners of the subdivided lots paid the taxes as apportioned to their lots. The appellant on October 17, 1941, notified the collector of taxes that he objected to the granting of abatements to the lot owners. When the appellant filed his appeal with the Appellate Tax Board on February 11, 1942, the entire tax as apportioned among the various lots comprising the original tract had been paid. The Appellate Tax Board granted the motion of the assessors to dismiss the appeal because the appellant had not been aggrieved by the tax assessed to him.

The tax upon the entire tract of land was properly assessed to the appellant. G. L. (Ter. Ed.) c. 59, Section 11, as appearing in St. 1939, c. 175. Crocker-McElwain Co. v. Assessors of Holyoke, 296 Mass. 338 . Assessors of Weston v. Trustees of Boston College, 296 Mass. 399 . Irving Usen Co. Inc. v. Assessors of Boston, 309 Mass. 544 . Prior to the amendment of G. L. (Ter. Ed.) c. 59, Section 59, by St. 1933, c. 165, Section 1, an application for an abatement could have been filed only by a person "aggrieved by the taxes assessed upon him" or, in certain circumstances, by a tenant of real estate paying rent therefor and obligated to pay not less than one half of the tax. Hough v. North Adams, 196 Mass. 290 . Dunham v. Lowell, 200 Mass. 468. Mechanics Savings Bank v. Collector of Taxes of Holyoke, 299 Mass. 404. The tax was regarded as the primary obligation of the owner, and the lien upon the land was considered as security for the payment of the tax. Kearns v. Cunniff, 138 Mass. 434 . Richardson v. Boston, 148 Mass. 508 . Webber Lumber Co. v. Shaw, 189 Mass. 366 . Shruhan v. Revere, 298 Mass. 12 . Since the amendment of this section in 1933, one, other than the person to whom the tax was assessed, if he is the owner or has an interest in the land assessed or is in possession thereof, may pay the tax and "may thereafter prosecute in his own name any application, appeal or action provided by law for the abatement or recovery of such tax" and shall, for the purposes of such proceedings, be deemed to be the person to whom the tax had been assessed. After the amendment by St. 1939, c. 250, a mortgagee paying a certain portion of the tax may, within a certain period of time, bring similar proceedings provided the person assessed has not commenced such proceedings. One of the purposes of this section is to afford an opportunity to those who have an interest in the property to secure relief from an excessive or illegal tax and to eliminate a hardship existing where the right, with the above exception, rested exclusively with the person assessed. Another purpose is to limit the previous right of the person assessed to avail himself of the remedies for an abatement or recovery of the tax where the tax was paid by the owner or a person having an interest in the realty or in possession of it or where a mortgagee, under the conditions stated, could invoke the remedy created by this section. The right to relief having been extended to the classes of persons designated, the section seeks to avoid duplication of proceedings by the person assessed and by others entitled to bring such proceedings. The limitation upon a mortgagee's bringing proceedings if the person assessed has not already done so is not imposed upon the other persons described who have paid the tax. In the latter case, the right to seek relief accrues upon the payment of the tax. Choate v. Assessors of Boston, 304 Mass. 298 . Boston Five Cents Savings Bank v. Assessors of Boston, 311 Mass. 415 .

The original tract of land was divided by the purchaser into sixteen lots. The owners of two of these lots, in accordance with G. L. (Ter Ed.) c. 59, Section 79, as amended by St. 1938, c. 150, Section 1, requested the assessors to apportion the tax and the assessors, although they knew the names and addresses of the owners of the remaining lots, failed to mail a notice to them stating that a request for an apportionment had been made and the time appointed for making the apportionment, as required by G. L. (Ter. Ed.) c. 59, Section 80, which provides that such notice shall be mailed "to every person interested in said real estate whose address is...