Streeter v. City of Worcester
| Citation | 146 N.E.2d 514,336 Mass. 469 |
| Parties | Clarence R. STREETER v. CITY OF WORCESTER. |
| Decision Date | 11 December 1957 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Harry Zarrow, Worcester, for plaintiff.
Harry J. Meleski, City Solicitor, Worcester, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.
This is an appeal from a decision of the Land Court on a bill filed December 12, 1955, seeking a declaratory decree that the plaintiff is the owner of a parcel of land in Worcester and that a previous decree of said court entered on May 10, 1937, purporting to foreclose the right of redemption from a tax title on said land is of no force and effect. In the instant case the court, on October 24, 1956, entered a final decree that Streeter 'has no right of redemption or other rights in said land.' The parties agreed upon the facts which the judge amplified by findings to a small extent concerning which there is no dispute, but he made rulings of law which are attacked by the plaintiff.
We briefly narrate the following facts which appear from the agreed facts and findings. Streeter on April 1, 1926, conveyed all the real estate he owned in Worcester to Streeter and Sons Co., a corporation, except the one parcel in question. The corporation thereafter for the next four years paid the taxes on all the various parcels including that one last mentioned. The tax thereon for 1931 was unpaid and on August 15, 1932, a tax deed to the city was recorded. The deed ran against the corporation although Streeter individually was the owner and occupant of the said parcel. The city on January 29, 1935, filed in the Land Court against the corporation a petition to foreclose the right of redemption. An official examiner of the Land Court reported that the title stood in the name of Streeter. In accordance with an order of the court Streeter was notified on August 26, 1935, of the pending proceedings to foreclose and the petition was amended to substitute him as respondent for the corporation. Streeter, although he received actual notice, did not appear and on May 10, 1937, a final decree foreclosing all rights of redemption was entered, and notice of the decree was recorded in the registry of deeds on May 14, 1937.
Streeter was notified on March 9, 1953, that the premises would be sold at public auction by the city under the provisions of G.L. (Ter.Ed.) c. 60, § 77B. Streeter then filed a bill in the Superior Court seeking a declaratory decree that his title was not affected by the decree of May 10, 1937. This bill was dismissed on the ground that the rights of the parties had been adjudicated by the Land Court decree of May 10, 1937. The appeal of Streeter from this decision of the Superior Court ended for lack of prosecution. The parties to the present suit have agreed that the defense of res judicata in regard to the proceedings of the Superior Court was waived.
As Streeter and Sons Co. was not the owner or in possession of the land on the taxable date the assessment of the tax to the corporation was invalid. 'And if the assessment is not levied on the person who is either the owner or in possession, the tax is void.' J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 522, 105 N.E. 370, 371, L.R.A.1915A, 334. Desmond v. Babbitt, 117 Mass. 233. See Irving Usen Co., Inc. v. Board of Assessors of Boston, 309 Mass. 544, 36 N.E.2d 373. The assessors might have assessed the land to an unknown person if reasonable inquiry did not disclose the owner or the occupant, Stone v. New England Box Co., 216 Mass. 8, 10, 102 N.E. 949, but the collector could not include in the tax sale any land the person assessed did not own or occupy. Lancy v. Boston, 186 Mass. 128, 132-133, 71 N.E. 302. Holcombe v. Hopkins, 314 Mass. 113, 115, 49 N.E.2d 722. If no decree of foreclosure had been entered on May 10, 1937, the plaintiff would have a right to redeem or quiet title to the land. Sargent v. Bean, 7 Gray 125. Desmond v. Babbitt, 117 Mass. 233. Richardson v. City of Boston, 148 Mass. 508, 20 N.E. 166. Tobin v. Gillespie, 152 Mass. 219, 25 N.E. 88. Lancy v. Boston, 186 Mass. 128, 71 N.E. 302. Fuller v. Fuller, 228 Mass. 441, 117 N.E. 838. Phelps v. Creed, 231 Mass. 228, 120 N.E. 589. Bertram v. Wilbur, 246 Mass. 377, 141 N.E. 99. Holcombe v. Hopkins, 314 Mass. 113, 49 N.E.2d 722. McHale v. Treworgy, 325 Mass. 381, 90 N.E.2d 908.
Where the city had been deprived of its...
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