Nickerson v. Town of Hyde Park

• Decision Date: 21 June 1911
• Parties: NICKERSON v. TOWN OF HYDE PARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 365

95 N.E. 794

NICKERSON v. TOWN OF HYDE PARK.

Supreme Judicial Court of Massachusetts, Norfolk.

June 21, 1911

COUNSEL

Colver J. Stone, for petitioner.

John A Keefe, for defendant.

OPINION

MORTON J.

This is a petition to register the title to land in the defendant town. The defendant claims title, subject to redemption, by virtue of a tax deed dated August 12, 1909, and recorded August 20, 1909, from the collector to it pursuant to a sale August 11, 1909, for the tax of 1907. A previous deed to the town dated September 12, 1908, had been declared invalid by the land court for the reason that it recited that the property was sold for the nonpayment of taxes assessed in 1908 instead of 1907, and also because it failed to state what was the fact, that no bid was made at the sale. Thereupon the collector believing that the incorrect recital in the deed of 1908 constituted a defect in the sale and authorized a disclaimer, and acting under the advice of counsel for the town executed and caused to be recorded pursuant to R. L. c. 13, § 72, an instrument disclaiming and releasing the title of the town under the deed of 1908 and proceeded to advertise the property again for sale, and sold and conveyed it to the town by deed dated and recorded as aforesaid.

The case was sent to a master who ruled that 'the tax title created by the sale and deed (of 1909) is a valid tax title, and that if the petitioner is entitled to register his title, it should be subject to said tax title.' The petitioner filed exceptions to the report, which were sustained in the land court, and a decree was ordered for the petitioner free from the lien claimed by the respondent under its deed of 1909. The case comes here on exceptions by the respondent to the refusal of the land court to confirm the master's report, and to give certain rulings requested by the respondent.

The validity of all matters up to and including the commitment of the warrant and tax list to the collector was admitted by the petitioner. After the sale in 1908 the collector entered in his cash book under the collections for September, 1908: 'Nickerson & Baker, sold to Hyde Park Sept. 9, interest $26.37, tax $620.50. Total paid $646.87.' It is conceded that there was no alienation of the land between the assessment in 1907 and the sale in August, 1909.

The petitioner contends that the deed of 1908 did not constitute a part of the sale, and that, therefore, there was no invalidity in that sale and the collector had no authority to file a disclaimer and to sell again in 1909. If that is not so then he contends that the statute gives the collector no power to sell again after a disclaimer where the tax title is held by a city or town.

The deed was the culminating act, the finishing touch, so to speak, in the sale, without which it would have been incomplete. In common acceptation a sale includes the passing of the title. The defect in the deed of 1908 constituted, therefore, we think, an invalidity in the sale, and the collector could disclaim pursuant to R. L. c. 13, § 72. The result of the petitioner's contention would be that there would be no remedy provided by statute where the invalidity in the tax title was caused by a defect in the deed. We think that the Legislature intended to afford a remedy whether the failure in the title arises from errors in the assessment, or in the subsequent proceedings and that the statute can be and should be so construed.

We also think that the sale and deed of 1909 were valid. The two years during which the lien continues had not expired. The entry upon the collector's book was, as the master rightly ruled, a mere bookkeeping entry. The tax has not been paid and unless the sale and deed of 1909 are valid the town will lose the tax, which it is...