Rogers v. Gookin
| Decision Date | 20 May 1908 |
| Citation | 198 Mass. 434,85 N.E. 405 |
| Parties | ROGERS v. GOOKIN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Melvin G. Rogers and Geo. D. Cummings, for plaintiff.
Fisher H. Pearson, for defendants.
This is a suit by a tax collector to enforce the personal liability of a landowner for taxes apportioned under Pub. St. 1882, c 11, § 81. Certain assignees were the owners of a tract of land on May 1, 1900, and were properly assessed for a tax thereon. Subsequently, in the same May, the tract was divided by sale among divers buyers, the defendants becoming purchasers of one subdivision, and the deed of it to them was duly recorded in the next month. The defendants and other purchasers orally requested the assessors to apportion the tax, which was originally assessed as a unit to the assignors as owners of the entire tract. In the November or December following the assessors made the apportionment, and a tax bill was sent to the defendnats for the sum apportioned to the lot purchased by them. On December 14, 1900, the defendants filed with the assessors a petition for an abatement, which in terms recognized the apportionment as having been made at their request, and complained only that the tax was too high. The superior court found as a fact that the defendants did not object to the apportionment on the ground that they received no notice and were not heard before it was made nor because it was unfair, but only because the property was overvalued, and that as an apportionment it was assented to. It is now too late for the defendants to object that their request for apportionment was not in writing. The action of the assessors was at their express instigation. Even if this was not of itself a waiver of their power to insist upon compliance with the letter of the statute, their subsequent action respecting the apportionment amounted to a relinquishment of all right to object on this account. Bryant v. Goodnow, 5 Pick. 228. For the same reason they cannot now object that the notice required by Pub. St. 1882, c. 11, § 82, was not given. Moreover, the exceptions do not show that the failure of the assessors to give any notice may not have been due to their ignorance of the addresses of the persons interested, and in such event they are not required to give any notice. The burden is upon the excepting parties to show that they have been prejudiced and in this respect they fail to sustain that burden.
Two of the three assessors were called as witnesses. One testified that the tax assessed to the assigness was 'abated' and 'reassessed,' and the other that it was 'abated' and 'apportioned' to the various owners. The only act which they did, in addition to making the apportionment, was to hand the collector of taxes a slip signed by themselves, which contained the direction to him to 'abate' the original assessment. This was not an abatement in any legal sense. There was no ground for abatement of the tax, and the assessors were not clothed with power to make an abatement in any way, except that pointed out by the statute. Pub. St. 1882, c. 11, §§ 69-77, both inclusive. Nor did the assessors intend not undertake to make any of the determinations required by the law touching abatements. They testified that they supposed it to be improper that there should appear upon the collector's list two assessments upon the same land to different persons. To describe the act, by which they attempted to correct what appeared to them an incongruity, as an abatement, falls far short of transforming it into a valid abatement. Merely to call an act an abatement does not make it one.
The statute as to apportionment makes no express provision for the personal liability for their part of the tax upon the several owners of the smaller parts. All taxes are assessed as of the first of May, and all rights are fixed with reference to that date unless a distinct provision to the contrary appears. All taxes upon real estate are assessed, not primarily to the land, but 'to the person who is either the owner or in possession.' Pub. St. 1882, c. 11, § 13; St. 1889, p. 837, c. 84. Richardson v. Boston, 148 Mass. 508-510, 20 N.E. 166. The provision is comparatively recent, that all taxes on real estate should be a lien, distress and arrest being the early remedies. Sherwin v. Boston Five Cents Sav. Bank, 137 Mass. 444. The statute under consideration does not contemplate the illegality of the first assessment, nor any reassessment. That is provided for in sections 79 and 80. It recognizes the validity of the first assessment, but shifts its point of incidence from 'the person who is either the owner or in possession' (Pub. St. 1882, c. 11, § 13) on the 1st of May, so that it will rest 'upon the several parcels into which said real estate has been divided,' and it releases the original owner from all personal liability for the tax upon any parcel to...
To continue reading
Request your trial