Rogers v. Nichols

• Decision Date: 17 October 1904
• Citation: 186 Mass. 440,71 N.E. 950
• Parties: ROGERS v. NICHOLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 440

71 N.E. 950

ROGERS v. NICHOLS.

Supreme Judicial Court of Massachusetts, Middlesex.

October 17, 1904

COUNSEL

Foster Rogers and Chas. C. Long, for appellant.

OPINION

BRALEY J.

Between May 1, 1901, the date when the tax was assessed on the estate described in the bill, and June 8, 1903, the date of sale to the plaintiff, the statutory provisions relating to the redemption of lands sold for the payment of taxes had been changed.St. 1888, pp. 373, 374, c. 390, §§ 57, 58, 59 subsequently Rev. Laws, c. 13, §§ 58, 60, 61;St. 1902, p 357, c. 443.The plainitff seeks to have this last statute which wrought this change, declared unconstitutional.It provided that the person entitled to redeem from a tax sale might make the requisite tender for redemption to the collector of taxes, who should then give a certificate 'specifying the amount paid, and the name of the person to whom, and the real estate on which the tax was originally assessed, and the registry of deed and the book and page therein where the collector's deed is recorded.'And upon the recording of this certificate in the proper registry all right and title of the purchaser under the collector's deed became extinguished.If the statute is declared void, then the right to redeem could be exercised only under Rev. Laws, c. 13, § 58, by making the required tender to the 'purchaser or his legal representatives or assigns,' and, as the bill alleges that the former owner seeks to redeem from the collector, and accordingly has made application to him for a certificate, which, when recorded, would constitute a cloud on the title of the plaintiff, he would not be compelled to wait until this certificate was actually procured and placed on record before bringing suit, as such a bill can be maintained to prevent clouding as well as to remove a cloud from title to real estate.Stevens v. Mulligan,167 Mass. 84, 86, 44 N.E. 1086;Loring v. Hildreth,170 Mass. 328, 331, 49 N.E. 652, 40L. R. A. 127, 64 Am. St. Rep. 301;White v. Gove,183 Mass. 333, 339, 67 N.E. 359.

But the statute must be deemed constitutional.By Acts 1848, p. 694c. 166,§§ 6-8, it was first provided that where a purchaser of lands sold for payment of taxes, or any agent duly appointed by him, could not be found upon reasonable search, the person entitled to redeem might pay the amount required for redemption to the town or city treasurer, who should give a certificate showing the fact of payment, and designating the land on which the tax was assessed.Upon filing this certificate in the registry of deeds where the lands lay, together with an affidavit of himself or some disinterested person that upon reasonable search neither the owner nor his agent could be found, and which is given the force of prima facie evidence as to the facts recited therein, all right and title acquired under the collector's deed was released and discharged.These provisions for redemption finally became by re-enactmentsRev. Laws, c. 13, §§ 60, 61.SeeGen. St. 1860, c. 12, §§ 37, 38;Pub. St. 1882, c. 12, §§ 50, 51;St. 1888, p. 374, c. 390, §§ 58, 59.The purpose of the statute under discussion was to supersede these two sections of the Revised Laws, and extend this method of redemption to all cases, whether the purchaser at a tax sale could or could not be found, and the affidavit prescribed by the earlier statute became unnecessary and was no longer required, while the collector of taxes, instead of the treasurer of the city or town, was substituted as the person to whom tender could be made.Although the lien which attaches to real estate upon a proper assessment of taxes thereon is commensurate with the extent of the title at the time, and may so continue nutil a sale is made, the right to redeem therefrom is not dependent upon the nature or extent of this lien, but is a separate provision, granted by the state for the benefit of those who may have been thus deprived of their property.It is within the power of the Legislature after an assessment has been made, and before the sale, to prescribe the conditions under which redemption may be had if the premises taxed are sold; and acts of this character are not considered...