Phelps v. Creed

• Decision Date: 19 October 1918
• Citation: 231 Mass. 228,120 N.E. 589
• Parties: PHELPS v. CREED et al. SAME v. DAVISON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 228

120 N.E. 589

PHELPS

v.CREED et al.

SAME

v.DAVISON et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 19, 1918.

Appeal from Superior Court, Berkshire County; Frederick Lawton, Judge.

Suits by Cassius D. Phelps against James E. Creed and others and against Charles S. Davison and others. From decrees for plaintiff, respondents appeal. Affirmed.

Charles H. Wright and John J. Whittlesey, both of Pittsfield, for appellants.

Wm. A. Burns, John B. Cummings, and James M. Rosenthal, all of Pittsfield, for appellee.

PIERCE, J.

These are two bills in equity to remove a cloud alleged to rest on the title of the petitioner to two distinct parcels of land, or, in the alternative, to redeem the same parcels, sold with other land for the nonpayment of taxes assessed to George L. Phelps for the years 1905 and 1906, to the defendant Temple, who in March, 1909, executed and delivered to the defendant Creed a deed of the parcel described as the ‘mountain wood lot’ and in March, 1910, executed and delivered to the defendant Davison a deed of the parcel known as the‘ Sherman lot.’

The original bills were filed November 16, 1912, and were wholly bills to redeem. Notwithstanding the objections of the defendants (1) ‘that the plaintiff has no right to convert an original bill by amendment or otherwise into a bill to remove cloud from title or to redeem;’ (2) ‘that the petition of defendant Davison in the land court for the purpose of registering his title * * * deprived this court of jurisdiction;’ and (3) ‘that a bill to remove cloud from title cannot be joined with a bill in equity to redeem from tax sale’-the bills were changed to their existent form by amendments allowed by a judge of the superior court October 15, 1915.

It is plain the judge of the superior court in the exercise of his discretion had authority to allow any change in the form of relief prayed for which the court had authority to grant in the same cause of action. Downey v. Lancy, 178 Mass. 467, 59 N. E. 1015. It is equally clear that there was no error in the joinder of two distinct specific grounds for equitable relief in one suit (Garden Cemetery Corp. v. Baker, 218 Mass. 339, 342, 105 N. E. 1070, Ann. Cas. 1916B, 75), and that the plaintiff is not precluded by laches from maintaining these bills for the purpose of having the tax deeds declared void as a cloud upon his title. There is no evidence of title in the defendants acquired by adverse possession. Tobin v. Gillespie, 152 Mass. 219, 25 N. E. 88.

The facts as found by the master, upon which the petitioner rests his contention that the tax sale to Temple was void, succinctly stated, are as follows: The duly elected and qualified assessors of the town of Williamstown in 1905 and 1906 lawfully assessed to George L. Phelps a lawful tax on two parcels of real estate-one the ‘farm’ and the other the ‘mountain lot’-each being assessed separately each year. The total amount of all taxes, real, personal and poll, due the town of Williamstown from the said George L. Phelps for the year 1905, amounted to $50.51. On or before March 1, 1906, $35.41 had been paid, leavinga balance due of $15. The total amount assessed to George L. Phelps on his real estate in 1906 was $45.82, and none of the taxes for the year 1906 had been paid when the lands were sold. On February 5, 1907, Summer I. Prindle, the duly elected and qualified tax collector of the town of Williamstown, sent by mail, prepaid, to George L. Phelps, a demand for payment of balance of taxes for 1905, $15, and taxes for 1906, $55.82, which demand did not identify each parcel or give the amount of taxes assessed or due on each for either year. On February 22, 1907, the collector posted and published a notice of the sale. This notice ‘contained a substantially accurate description of two separate, distinct and noncontiguous parcels of real estate at least one mile distant from each other,’ namely, the parcels in question, but did not give the amount of tax assessed on each parcel for the year 1905 and for the year 1906, or the amount...