Sherwin v. Boston Five Cents Sav. Bank

• Decision Date: 15 July 1884
• Citation: 137 Mass. 444
• Parties: Thomas Sherwin v. Boston Five Cents Savings Bank
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 444

Thomas Sherwin v. Boston Five Cents Savings Bank

Supreme Court of Massachusetts

July 15, 1884

Suffolk.

Judgment for the defendant Affirmed.

E. B Hagar, for the plaintiff.

C. F Kittredge, for the defendant.

Field J. Devens & Holmes, JJ., absent.

OPINION

Field, J. This is an action originally brought by the city of Boston, and, by amendment, now prosecuted by Thomas Sherwin, late the collector of the city, to recover, under the Gen. Sts. c. 12 § 40, taxes assessed on a parcel of land in 1872 and 1873 to Charles A. Wood, then the owner of the equity of redemption in possession; a tax assessed on the same parcel in 1874 to Josiah S. Eastman, then the owner of the equity of redemption in possession; and a tax assessed on another parcel in 1875 to Jonathan Preston, then the owner of the equity of redemption in possession. Each of the parcels was, at the dates respectively of the assessments, subject to a mortgage to the defendant; and, in September, 1879, the defendant made the statutory entry for the purpose of foreclosing the mortgages, and certificates thereof were duly made and recorded, but otherwise than this the defendant was never in possession. The agreed facts state that, "at the date of said entries, no lien existed on any part of said real estate for said taxes, or either of them. All of said mortgages had been paid and discharged before there was any notice or demand addressed to the defendant as mortgagee in possession, in regard to the payment of said taxes."

By the Gen. Sts. c. 11, § 8, "Taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the first day of May. Mortgagors of real estate shall, for the purposes of taxation, be deemed owners until the mortgagee takes possession, after which the mortgagee shall be deemed the owner." By c. 12, § 22, "Taxes assessed on real estate shall constitute a lien thereon for two years after they are committed to the collector; and may with all incidental costs and expenses be levied by sale thereof," &c.

The plaintiff contends that, in addition to this remedy by a sale of the estate, there is a remedy against the person to whom the taxes are assessed by distress, §§ 7, 8; by arrest, § 13; and by action, § 19; that these remedies are to recover taxes assessed on real, as well as on personal estate; that the words, "all taxes due thereon," in § 40, mean all taxes which have been legally assessed to any person on the real estate, which have not been paid, and for the recovery of which any process would lie; that there is no limitation to the remedies by distress or arrest, and only the general limitation of personal actions to the remedy by action; and that this limitation had not expired when the defendant entered.

In West Roxbury v. Minot, 114 Mass. 546, the court say, that "taxes on real estate, being a lien on the estate, can only be enforced by the sale of the estate itself;" but certainly this has never been decided, and the case did not call for any construction of the statutes relating to a distress, or an arrest, or an action for the recovery of taxes; and there are expressions inconsistent with this statement in the opinions of the court in several cases. Hayden v. Foster, 13 Pick. 492. Burr v. Wilcox, 13 Allen 269. Cochran v. Guild, 106 Mass. 29.

The St. of 1785, c. 70, provided, as the general remedy for the collection of all taxes, a distress of goods and an arrest of the person, and only in special cases, as, for example, when the owner was non-resident or, after the assessment, had removed from the municipality, gave the right to sell the land. §§ 6, 7, 15. The St. of 1789, c. 4, gave an action to the constables or collectors to recover the rates, such as other creditors have for the recovery of debts, when a person duly rated dies, or removes out of the town, district, or plantation, or, being an unmarried woman, intermarries before the payment of the rates. The St. of 1823, c. 133, was the first general law which provided that all taxes on real estate should be a lien, although, before that time, taxes on real estate in Boston had been made a lien. That statute provided that the tax might be collected by a sale of the real estate, in the same manner as "taxes assessed on lands of non-resident proprietors."

In Hayden v. Foster, ubi supra, the court say of this remedy, "It is a remedy superadded to those of demand, distress, and imprisonment." In this statute, there was no limitation of time; and the court say, "Nor can we entertain a doubt that such lien continues until the tax is paid." The limitation of two years was first enacted in the Rev. Sts. c. 8, § 18, with the provision that "nothing in this section shall restrain the collector from selling any real estate for taxes after the said term of two years shall have elapsed, unless said estate shall have been alienated in the mean time."

The Rev. Sts. c. 8, § 15, retained the provisions of the St. of 1789, c. 4, authorizing a suit by the collector, if the person taxed removes, dies, or, being an unmarried woman, intermarries before the payment of the tax, but gave an action in no other case The St. of 1859, c. 171, extended this provision "to all cases in which taxes committed to a collector have remained unpaid for one year after such commitment." These provisions became the Gen. Sts. c. 12, § 19, and the Pub. Sts. c. 12, § 20.

In the view we take of this case, it is not necessary to decide whether there are remedies by distress, by arrest, and by action, for the purpose of collecting a tax assessed on real estate of the person to whom it has been assessed. We assume that such remedies, or some of them, exist.

The St. of 1849, c. 213, § 1, provided that "no sale of any real estate for taxes shall affect the rights of any person not taxable therefor: provided, that any mortgagee, upon taking possession of said real estate by force of his mortgage, shall be liable to pay all taxes then due, and the costs and expenses of any sale that shall have taken place." This is the earliest provision we have seen making the mortgagee liable for the taxes upon taking possession.

The St of 1856, c. 239, provided, in § 1, that "taxes assessed on real estate hereafter mortgaged shall, in all cases, constitute a lien thereon for two years after they are committed to the collector; and said taxes . ....