Parrotta v. Hederson
| Decision Date | 01 February 1944 |
| Citation | 53 N.E.2d 97,315 Mass. 416 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | NICHOLAS PARROTTA v. GEORGE F. HEDERSON & others. |
November 3, 1943.
Present: FIELD, C.
J., LUMMUS, QUA & RONAN, JJ.
Equity Jurisdiction, Specific performance. Mandamus. Auction. Notice. Waiver. Agency, Scope of authority or employment Custodian of municipal property. Municipal Corporations Officers and agents, Property.
A suit in equity against a city for specific performance of a contract for sale of land owned by the city through foreclosure of the right of redemption from a tax title, brought after the city's custodian of the land had accepted the plaintiff's bid at an auction sale thereof conducted by the custodian in behalf of the city under St. 1938, c. 358,
Section 2, and after the plaintiff had seasonably paid the full amount of his bid to the city treasurer, was not barred on the alleged ground that the plaintiff's proper remedy was mandamus to compel the treasurer to execute and deliver a deed of the land to the plaintiff in accordance with the statute.
At an auction sale under St. 1938, c. 358, Section 2, of land owned by a city through foreclosure of the right of redemption from a tax title, the city's custodian without invalidating the sale might waive the terms stated in the statutory notice of the sale and might accept a bid in an amount less than the amount of the down payment required to be made at the sale by the terms of the notice.
At least in the absence of fraud or collusion in an auction sale conducted under St. 1938, c. 358, Section 2, by a city's custodian of property acquired through foreclosure of the right of redemption from tax titles, the fact that the amount of the bid accepted by the custodian for the property being sold was only a small fraction of its assessed value was not a ground for refusing the successful bidder relief in a suit in equity against the city for specific performance of the contract of sale.
BILL IN EQUITY filed in the Superior Court on June 30, 1942.
A demurrer to the bill was overruled by decree of Collins, J. The suit was heard by Broadhurst, J., by whose order a final decree was entered "that the defendant Hederson, as city treasurer, on behalf of the city of Chelsea, execute and deliver to the plaintiff a deed conveying to him" the land in question, and that the plaintiff have costs against the defendant city. The defendants appealed from both decrees.
J. Israelite, City Solicitor, for the defendants.
R. W. Frost, (F.
R. Breath with him,) for the plaintiff.
This bill is brought against the city of Chelsea, Hederson its treasurer, and McCarthy, who has been appointed in accordance with St. 1938, c. 358, Section 1 (), custodian of its property acquired by foreclosure of tax titles and, after the 1939 amendment, of property acquired under G. L. (Ter. Ed.) c. 60 Section 80, as amended. The object of the bill is to secure specific performance of a contract for the purchase and sale of about forty-five hundred square feet of vacant land, the buildings upon which have been torn down. The contract was entered into between the plaintiff and the city on May 14, 1942, when the plaintiff was the highest bidder at an auction conducted under the authority of Section 2 of the statute by McCarthy as custodian and auctioneer. The defendants appeal from an interlocutory decree overruling their demurrer and from a final decree in favor of the plaintiff.
Section 2 of the statute provides that such a custodian, "acting on behalf of the city or town," may sell any property in his custody at public auction, first sending to the former owner of record a notice which shall contain a description of the property and state the date, time, place, terms, and conditions of the sale, and posting a similar notice in two or more public places. The section further provides that failure to send or post the notice "or any insufficiency in the notice . . . shall not invalidate the title to any property sold"; that the custodian "may reject any and all bids . . . if in his opinion no bid is made which approximates the fair value of the property"; and that upon payment by the purchaser to the city or town of the amount of a bid "accepted by the custodian," the treasurer shall "on its behalf" execute and deliver any instrument necessary to transfer the title of the city or town to any property sold.
The city had acquired title to the land in 1941 through the foreclosure by decree of the Land Court of rights of redemption from a tax title. Before the sale to the plaintiff, McCarthy, as custodian, "complied with all the requirements of" the 1938 statute. The notice of sale stated that $200 was to be paid in cash, or a certified check would be required at the time and place of sale, "full balance in thirty (30) days to the Treasurer of the City of Chelsea." The right was reserved to reject any and all bids. Reference was made to McCarthy for "further particulars." At the sale, McCarthy accepted the plaintiff's bid of $100. McCarthy then demanded, and the plaintiff paid, the sum of $20. The plaintiff paid the balance of $80 to the treasurer within the time allowed. The property had been assessed for $10,250 in 1941 before the buildings had been torn down, and in 1942 the land alone was assessed for $2,250.
The defendants' first contention is that the plaintiff cannot maintain this bill because he has a complete and adequate remedy at law by a petition for a writ of mandamus to compel the treasurer to execute a deed to the plaintiff in accordance with the duty imposed upon the treasurer by the statute of 1938. This contention cannot prevail.
Attempts to define in a few words the grounds upon which a petition for a writ of mandamus may be founded are necessarily incomplete and not wholly satisfactory. A rough generalization applicable to most cases against public officers which do not involve title to office might be that mandamus is available to secure the performance of a public duty at the instance of any person who as a citizen or otherwise is legitimately concerned in having it performed. See Attorney General v. Boston, 123 Mass. 460 , 479; Brewster v. Sherman, 195 Mass. 222; Bancroft v. Building Commissioner of Boston, 257 Mass. 82 , 84; Brooks v. Secretary of the Commonwealth, 257 Mass. 91; Tuckerman v. Moynihan, 282 Mass. 562; D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven,
294 Mass. 570 , 574; Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65 , 69; Department of Public Utilities v. Trustees of the New York, New Haven & Hartford Railroad, 304 Mass. 664 . But compare Warner v. Mayor of Taunton, 253 Mass. 116 . The plaintiff's claim in this case springs wholly out of the personal contract which he made with the city at the sale through McCarthy, who was acting as the city's agent under the terms of the statute. The duty resting upon the city and its officers is the duty to perform the city's contract with the plaintiff. A mere contractual obligation does not often create the kind of public duty performance of which is enforced by mandamus, even though performance necessarily devolves upon some public officer. In Tuckerman v. Moynihan, 282 Mass. 562 , at page 569, this court said that mandamus "is not, except in rare instances, a remedy for the enforcement of contractual obligations," citing a passage from 18 R. C. L. at page 130, wherein it is said that any other doctrine "would necessarily have the effect of substituting the writ of mandamus in place of a decree for specific performance, and the courts have, therefore, steadily refused to extend the jurisdiction into the domain of contract rights." See now 34 Am. Jur., Mandamus, Section 58. In Lexington v. Mulliken, 7 Gray, 280, this court held that refusal of a town treasurer to pay a debt due from the town was not a proper cause for mandamus, since the creditor had a complete remedy by ordinary process. See Wheelock v. Auditor of Suffolk County, 130 Mass. 486; Police Commissioner of Boston v. Boston, 279 Mass. 577 , 585-586; High on Extraordinary Remedies, Section 25. In Parrott v. Bridgeport, 44 Conn. 180, 182, the Supreme Court of Errors said, "But the writ of mandamus has never been considered as an appropriate remedy for the enforcement of contract rights of a private and personal nature and obligations which rest wholly upon contract and which involve no questions of public trust or official duty." Many cases are collected in 38 C.J. at page 588.
In resting this decision upon the ground here taken we do not wish to be understood as now accepting the general proposition that a bill in equity cannot be maintained especially in one of the commonly recognized branches of equity jurisdiction, because there is a remedy by mandamus. Mandamus is itself classed as one of the extraordinary remedies. The statement has been made in numerous cases by many judges that a petitioner cannot have mandamus, if any other adequate and effectual remedy is available. This statement is couched in forms sufficiently broad to include equitable remedies among those to which resort must first be had. [1] It has frequently been held that a petitioner cannot have mandamus where he has a statutory remedy in equity. [2] And this principle has been applied in cases where the statutory remedy in equity is not confined to any particular set of facts but is in the nature of a more or less general extension of equity jurisdiction to a new subject matter, as in the instance of suits by ten taxable inhabitants under G. L. (Ter. Ed.) c. 40, Section 53, to prevent the illegal expenditure of money by a city or town. [3] The only case in this Commonwealth of which we are aware that...
To continue reading
Request your trial