Morrill v. Lovett

• Decision Date: 28 March 1901
• Citation: 49 A. 666,95 Me. 165
• Parties: MORRILL v. LOVETT.
• Court: Maine Supreme Court

49 A. 666

95 Me. 165

MORRILL

v. LOVETT.

Supreme Judicial Court of Maine.

March 28, 1901.

(Official.)

Bill by Levi Morrill against James L. Lovett to remove cloud. Decree for complainant.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and FOLGER, JJ.

Wm. M. Payson, F. C. Payson, and H. R. Virgin, for plaintiff.

B. D. & H. M. Verrill, for defendant.

SAVAGE, J. Bill in equity to remove a cloud upon the title to certain real estate in that part of Portland which was formerly Deering. Harriet J. Morrill, of Boston, Mass., who died in 1889, was seised of the premises at the time of her death. The complainant is her devisee. In 1890 and 1891 the assessors of Deering assessed taxes on the real estate to Harriet J. Morrill, as a nonresident owner. At the tax sale for the nonpayment of these taxes the property was bid in on behalf of the city under the statute (Rev. St. c. 6, § 203). Later, in 1894, Deering conveyed its interest in the premises to the defendant, for the amount of the taxes and interest.

Under the allegations of the bill, the only questions open for consideration are (1) whether the assessments to Harriet J. Morrill, then dead, were void; and, (2) if so, whether the complainant is equitably bound to reimburse the defendant for the purchase price paid by him and interest, as a condition precedent to having the cloud removed from his title.

1. That a tax assessed to a dead person is void, as a general rule, is not controverted. But prior to her death this real estate had been assessed to Harriet J. Morrill, and, this being so, the defendant contends that the assessors might lawfully continue to assess the property to her, though dead, unless and until notice was given to them of a change in ownership or occupancy. And to support this contention the defendant relies upon Rev. St. c. 6, § 27, which provides that "when assessors continue to assess real estate to the person to whom it was last assessed such assessment is valia, although the ownership or occupancy has changed, unless previous notice is given of such change and of the name of the person to whom it has been transferred or surrendered. * * *" The complainant replies that this statute does not apply in cases where the change in ownership arises from the death of the owner, and the estate thereby passes to heirs or devisees. And here issue is joined.

It is unnecessary upon this point to consider the allegations that the death of Mrs. Morrill was "generally well known" in Deering, and to "many or all of the officers thereof," or that specific notice was given to the assessors in the spring of 1891, because it is neither alleged nor shown that the assessors had notice of her death previous to the assessment of 1890. "Previous notice" (that is, notice previous to the assessment) is the language of the statute. And, if the assessment for 1890 was valid, the defendant has obtained a good title.

Under the provisions of the statute cited, can assessors lawfully continue to assess real estate to a former owner after death? Is the change of ownership limited to transfers, voluntary or involuntary, by living persons, or by prescription, or does it include a change in ownership occasioned by the death of the owner? In answering these questions, it may be observed, in the first place, that the general policy of our legislation relating to taxation seems to be not only to create a lien upon real estate taxed, to secure the payment of the tax, but to create a personal liability for the tax in the one to whom it has been assessed, to be enforced by arrest, distraint, or suit at law. If the construction claimed by the defendant is correct, this statute is a departure from the genera) rule, for it is clear that the assessment of a tax to a dead person upon real estate formerly owned by him is purely in rem. We do not doubt, however, that the legislature has power to provide for the assessment of such a tax. The question here is simply whether it has done so.

Again, we shall be aided if we can ascertain the precise purpose of this statute. In the absence of statutory modifications, a tax assessed to one not the owner was void. The law encouraged the free and easy transfers of real estate. Title might, and frequently did, pass from one to another without any change in the indicia of ownership, and conveyances were valid without being recorded, so far as taxation was concerned. To compel the assessors to inquire into the existence of voluntary changes in ownership, at the peril of making void assessments, would be intolerable, and would afford one thus inclined too easy a method of avoiding the payment of a tax. It was good policy, then, to declare an owner liable to taxation until he had given notice of a transfer. But the reasons for the statute which we have stated, if they exist at all in change of ownership by death, exist only to a slight degree. The distinction is marked. Transfers by living owners are private transactions, not necessarily known to any but the parties themselves. But death, particularly the death of a land proprietor, is ordinarily a matter of local notoriety, at least. And the cases are rare indeed when the fact of such death, and consequent change of ownership, is not easily ascertainable, or is not in fact known by the assessors within the term of their service, and while they...