Sullivan v. City of Boston
| Decision Date | 29 February 1908 |
| Citation | 84 N.E. 443,198 Mass. 119 |
| Parties | SULLIVAN v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The following requests were asked by the defendant:
Henry H. Buck, for plaintiff.
George A. Flynn, for defendant.
This is an action of contract to recover back money paid for taxes alleged to have been illegally assessed upon land owned by the plaintiff, not at the time the taxes were assessed, but at the time they were paid. The trial court sitting without a jury found for the plaintiff, and the case is here on exceptions taken by the defendant.
The taxes were assessed as of May 1, 1903. At that time the land consisted of two parcels, one upon the easterly side of Norton street, and one upon the westerly side. They were owned by Patrick and Michael H. Norton, in fee, subject to two mortgages, the first for $25,000, held by the Boston Insurance Company, hereinafter called the insurance company, and the second for $8,000, held by one McQuesten, each mortgage covering both parcels. The McQuesten mortgage may be eliminated from the case as being immaterial to the questions before us.
1. As to the tax on the lot upon the easterly side of Norton street. The first ground upon which the validity of this tax is attacked is that is was assessed wholly to the Nortons and not in part to them and in part to the mortgagee. Upon this it appears that prior to the assessment of the tax the insurance company undertook to give the statement prescribed by Rev. Laws, c. 12, § 45, in order that its interest as mortgagee might be taxed under the provisions of sections 16 and 17 of that chapter. But the difficulty with this contention is that the statement did not contain the particulars required by section 45. This section, so far as material to this case, reads as follows:
The clear meaning of this section, especially when taken in connection with the history of the legislation on this matter, is that when two or more parcels situated in the same town are included in a mortgage as security for one entire sum, the statement must include, for the guidance of the assessors, an apportionment of the amount secured upon each parcel. Stated in another way, the statement must show to the assessors the estimate which the maker thereof, whether he be the mortgagor or mortgagee, himself places upon the taxable interest the mortgagee has in the lot to be assessed. That estimate the assessors are entitled to. This feature of this method of taxation is very important, and it was enacted for the purpose of relieving the assessors from the duty, onerous and practically impossible of performance, which St. 1881, p. 646, c. 304, had imposed upon them. See Worcester v. Boston, 179 Mass. 41, 60 N.E. 410, for a general summary of the legislation. The apportionment which under this section it is the duty of the assessors to make is not apportioning the entire sum due on the mortgage among the several parcels covered by it, but that of determining 'the proportionate interest of the mortgagor or mortgagee respectively.' Upon an inspection of the statement of the insurance company, which was the only statement sent to the assessors, it appears to be lacking in this respect. The statement relates to several pieces of land held by the company on mortgages, but as to this land the only description is that it is located on 'Norton and Olney streets' in Dorchester; and the amount of the mortgage is stated to be $25,000. The fair construction of this is that the land abuts both on Norton and Olney streets, and that it does not apply to land which does not touch both of those streets. The lot upon the easterly side of Norton street did not abut on Olney street, nor was it within several hundred feet of that street. The statement therefore, fairly construed, did not refer to this lot at all. Especially is this so when it is remembered that the other lot, namely, the one upon the westerly side of Norton street does abut on Olney street and that the language aptly enough describes that lot. But even if it be said that inasmuch as both streets are named the language may fairly be construed as including any land owned by the Nortons on either street, whether it touches the other or not, still the statement is fatally defective on another account. It contains neither a statement of the 'amount secured upon each separate parcel' nor an 'estimate of the interest of the mortgagee * * * in each part.' Hence by the express terms of the statute the tax assessed to the Nortons 'was not invalid merely by reason that the interest of the mortgagee had not been assessed.'
The next objection to the validity of the tax is that it was assessed to the Nortons jointly, whereas, as the plaintiff contends, it should have been assessed one undivided half to each. This objection is untenable. Land owned in common may be assessed so far as respects the lien thereon to the tenants in common, and such is the general...
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