Southworth v. Edmands
| Decision Date | 05 September 1890 |
| Citation | 152 Mass. 203,25 N.E. 106 |
| Parties | SOUTHWORTH v. EDMANDS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S.K. Hamilton, for demandant.
George M. Hobbs, for tenant.
The taxes are properly assessed to Rodney Edmands. The record title was in Strong, and he was the person taxable as owner and not Mrs. Edmands, who held an unrecorded deed, of which the assessors had no notice. Gen.St. c. 11, § 8; Forster v. Forster, 129 Mass. 559, 566; St.1881, c. 304, § 4; Pub.St. c. 11,§ 13. The potent facts upon which the assessments must be made were that Strong was the owner of the premises, and that the Edmands family occupied them, and there was nothing to overthrow the presumption that the head of the family was in possession. The tax could not properly have been assessed to Mrs. Edmands as the person in possession. Even if Mrs. Edmands' deed had been recorded, and she taxable as owner, Mr. Edmands would still, upon the facts found, have been taxable as in possession. It appears that Mr. Edmands and his wife occupied the premises, and, with their young children, resided on the place. There is nothing to show that he, as the head of the family, was not in possession of the family home. The fact that the wife owned the place would not afford an inference that she had taken her husband's place in the family. Undoubtedly she would have the right to take and retain possession even if it were necessary therefor to compel her husband to furnish another home for her. But if she permitted her estate to be occupied as the family home, the presumption, in the absence of evidence to the contrary, is that she permitted the possession of it to be in her husband. Her consent that her husband should be in possession would be presumed. He would not be her tenant, but would be in by her license. Plaisted v. Hair, 150 Mass. 275, 22 N.E. 921. He was under legal obligation to provide a home for his family. She was under no legal obligation to allow him to use her estate for that purpose. She might have refused it to him. Perhaps she might, as a condition of admitting him to it, have exacted his consent that she should be the master of the house. Perhaps she could by an antenuptial contract have settled the possession of the house upon herself, after the pattern of the plaintiff in McIntyre v. Knowlton, 6 Allen, 565, who married her hired man under an agreement that he was to have only his board and lodging and a home with her, and nothing more. But no such relation between husband and wife will be presumed. If nothing appears but that the husband and wife and children occupy a house owned by the wife, the inference will be that the husband is the person in possession of it, and that he is, what his name imports, master of the house. At the time of this occupancy the wife could not have conveyed her real estate, or let it for a longer term than one year, without the concurrence of her husband. Gen.St. c. 108, § 3; St.1874, c. 184, § 1. If she used her property for carrying on a boarding-house or a farm, the property employed in the business would be conclusively presumed to be her husband's, as against his creditors, unless a certificate that it was her business had been filed. St.1862, c. 198; Snow v. Sheldon, 126 Mass. 332. Like his children, she took and followed the settlement of her husband. Gen.St. c. 69, § 1, clause 1. We cannot follow the decision in Hamilton v. Fond du Lac, 25 Wis. 496, nor adopt the doctrine there laid down that "a husband merely residing with his wife upon her separate property is no more the occupant of the property, within the meaning of the statute allowing lands to be assessed to occupants, than she would be of his lands if residing with him thereon." The circumstances of the occupancy stated in the report, meager as they are, show that the actual possession was in the husband. Before March, 1861, he was the owner. In that year the record title passed by the foreclosure of a mortgage to Strong, and it remained in him until 1882. In 1869, Strong gave the deed to Mrs. Edmands, which was recorded in 1882. The taxes were assessed to Strong, and paid by him until 1864. Since then they have been assessed to Edmands, and were paid by him until the tax for 1873, for which the first sale was made. It does not appear how long Edmands had lived upon the place, only for some years prior to 1869. It is said the place was "purchased from Strong" in 1864, although the deed was not given until 1869. The inference is that Edmands occupied the place continually since 1864, if not from before the foreclosure of the mortgage, and with Mrs. Edmands, at least, since 1864. Neither Mr. nor Mrs. Edmands ever objected to the taxes being assessed to Mr. Edmands, or claimed in any way that they should be assessed to Mrs. Edmands. It must be assumed that both of them knew to whom the taxes were assessed. In the instances, probably common throughout the commonwealth in which the real estate of the wife is assessed to the husband, there can hardly be found one which would not furnish more plausible ground than this for holding the tax to be illegal and void. In 1873 the assessors found Edmands occupying the place with his family. He had so occupied it for nine years or more, and during that time the taxes had been assessed to him, and paid without objection. They were not bound to look further. If they had notice from the record that Strong was the owner, they were not bound to inquire if there was not an unrecorded deed from him to Mrs. Edmands; and, if they had had notice of such a deed, they may well have doubted whether they could have assessed the tax to her as owner, while the right to assess to the occupant in possession was clear. It has not been argued that the taxes could have been assessed to Mrs. Edmands, except as owner, or that they could have been assessed to any one as in possession unless to Mr. Edmands. The demandant asserts Mr. Edmands' possession by making him a tenant in the action, and he admits that he is in possession, by pleading the general issue without a specification of disclaimer.
It is objected that the affidavits of notice of the sales provided for by Gen.St. c. 12, § 27, were insufficient, because the attorney of the collector by whom they were made was not a disinterested person. The statute does not require that an affidavit should be filed. It only makes a proper affidavit evidence that notice was given, but does not exclude proof by other evidence. As it is found that notice was in fact given, it is immaterial if the affidavit is insufficient.
It is further objected that the sales were void because the collector sold the whole of the land when a part might conveniently have been sold. But it was optional with the collector to sell the whole or a part. Gen.St. c. 12, § 33; Crowell v. Goodwin, 3 Allen, 535.
It is also objected that the sales were illegal because there was included in each annual appropriation a sum of money to pay interest on a debt contracted for the purchase of land for a public park, it being contended that the town could not lawfully raise money for that purpose. If this were so, it would not avoid the sale. Gen.St. c. 12, § 56; Cone v. Forest, 126 Mass. 97.
It is further objected that the sales are void because the collector at each sale announced that he hoped that no person would bid more than the amount of taxes, interest, and charges, on account of the inconvenience of disposing of the surplus. There is no reason to suppose that this remark did, in fact, or was calculated to, influence the bidding. It was apparently intended only for the class of bidders who meant to advance about the amount due, and to hold the land for redemption, when they would recover back their advance, and 10 per cent. interest upon it, and it might have influenced such a bidder to offer the exact amount due, instead of a round sum that would cover it; but that would be no detriment to the owner. It could not have influenced any bid made with the intention of purchasing and holding the property. It is better for the owner, if he redeems the property, that the sale should be for no more than the amount due, for, when he redeems, he will have to repay the surplus, with interest at the rate of 10 per cent. per annum; and this seems to have been the opinion of the legislature, for, before the last sale, the collector was authorized to take the land for the town for the amount due. St.1878, c. 266.
No other objection is made to the validity of the tax-sales, and in the opinion of a majority of the court there must be judgment for the defendant.
I do not agree to that part of the opinion of the majority of the court which seems to hold that, when a man and his wife live together on her real estate, the possession is deemed to be in the husband, and not in the wife. There can be no doubt that when two men or two women, or a man and a woman who are not married to each other, are residing in a house owned by one of them, and nothing else appears, the owner is held to be in possession, and the other to be there in the owner's right. By Pub.St. c. 147, § 1, it is provided that "the real and personal property of a woman shall upon her marriage remain her separate property, and a married woman may receive, receipt for, hold, manage, and dispose of property, real and personal, in the same manner as if she were sole, except that she shall not, without the written consent of her husband, destroy or impair his tenancy by the curtesy in her real estate." Under this section, except as to her husband's right by the curtesy, and the making of contracts with her husband, a married woman stands in precisely the same position in regard to...
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