Town of Franklin v. Metcalfe

• Decision Date: 27 November 1940
• Citation: 30 N.E.2d 262,307 Mass. 386
• Parties: TOWN OF FRANKLIN v. METCALFE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 386

30 N.E.2d 262

TOWN OF FRANKLIN

v.METCALFE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Nov. 27, 1940.

Proceeding by the Town of Franklin against Herbert L. Metcalfe and others to foreclose rights of redemption under a tax title acquired by petitioner in 1935 for nonpayment of balance of real estate taxes assessed for the year 1932. From a decision that tax title was valid and ordering that case stand for further hearing on the matter of redemption, the respondents appeal.

Affirmed.Appeal from Land Court, Norfolk County; Fenton, Judge.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

B. Bachner, of Franklin, and T. L. Mackin, of Boston, for petitioner.

H. L. Metcalfe and A. T. Handverger, both of Franklin, for respondents.

DOLAN, Justice.

This is a petition to foreclose rights of redemption under a tax title, acquired by the petitioner, in 1935, for nonpayment of the balance of real estate taxes assessed for the year 1932 on premises situated on Main and West Central Streets in the Town of Franklin. The case comes before us upon the respondents' appeal from the decision of the judge in which he ruled that the tax title is valid and ordered that the case ‘stand for further hearing on the matter of redemption.’

The decision of the judge discloses the following facts: The land in question consists in part of premises conveyed by one Sargent to Eliza H. Metcalfe in 1880, and in part of premises conveyed by him to her in 1887. She died intestate and possessed of the land involved on July 5, 1931, leaving as her heirs at law two sons, the respondents Herbert L. and Ernest L. Metcalfe. They were appointed administrators of her estate on July 8, 1931. The real estate taxes for 1932 were assessed to ‘Eliza H. Metcalfe Heirs or Devisees.’ For each year since they have been assessed to Herbert L. Metcalfe and Ernest L. Metcalfe.

The land involved was taken for nonpayment of the taxes for 1932 by an instrument of taking dated August 29, 1935, which, together with an affidavit of demand and notice, was recorded in the Norfolk County Registry of Deeds on October 24, 1935. The instrument of taking ‘recites that Robert A. Doherty, Collector of Taxes, did take for the Town of Franklin the land in said Franklin described as follows: ‘Land Main and West Central Streets with buildings thereon being the same premises described in deeds from Edwin H. Downes, Deputy Sheriff, to Bertha Bachner dated May 12th, 1934, and recorded with Norfolk County Registry of Deeds, Book 2028, Page 63, and supposed to contain about 29,040 square feet.’ The affidavit of demand recites that a demand was served on Herbert L. Metcalfe et al., Franklin, Mass., with a statement of the amount of the tax assessed on said land for the year 1932.'

A lunch cart stands on part of the premises involved. From January 1, 1926, to November 1, 1938, one Lawrence maintained the lunch cart under a lease from Eliza H. Metcalfe. On the latter date Lawrence sold the lunch cart to Carleton F. Mason and Elmer D. Flemming, taking back a mortgage. On the same day the respondents Herbert and Ernest Metcalfe executed a lease of the land on which the lunch cart stands to Mason and Flemming. Under both leases the lunch cart is described as personal property and it is provided that it may be removed at any time by the lessees. The cart stands ‘on its own wheels on abutments which are four cement poles * * * [which] go two feet into the ground.’ A brick veneer wall was built around three sides of the lunch cart in 1925. The rear end of the cart is ‘up against’ the wall of another building but is not attached thereto. Prior to 1925 the cart was assessed to Lawrence as personal property. Thereafter it was assessed as real property and Lawrence paid the taxes to the respondent Herbert Metcalfe up through 1934. Lawrence and Mason and Flemming are also respondents in this proceeding. In their answer each of the respondents asks an opportunity to redeem if ‘it appear that all the proceedings in the taking of the land for taxes was in accordance with the law provided therefor * * *.’ The petitioner agreed that ‘if the tax title was declared valid the lunch cart might be removed from the premises upon payment of the proportionate share of taxes due on it.’

The respondents contend that the tax title of the petitioner is invalid for the reasons that the assessment for 1932 was defective, that the description of the land in the instrument of the taking was insufficient, and that the demand and notice of the taking were improper. These were the only questions upon which evidence was presented to the Judge or that were argued before him.

The assessment was valid. Real estate taxes are generally assessed either to the owner or to the person in possession of the land. G.L. (Ter.Ed.) c. 59, § 11. But under the law as it existed in 1932 an assessment to the heirs or devisees of a decedent was proper. G.L. (Ter.Ed.) c. 59, § 16. See now St.1937, c. 114; Boston v. Lynch, Mass. 23 N.E.2d 466. While it is settled that taxes cannot be assessed properly to unknown persons where the assessors reasonably could have ascertained the true owners, McDonough v. Everett, 237 Mass. 378, 381, 129 N.E. 681, under § 16 (prior to St.1937, c. 114) the assessment to the heirs or devisees of a decedent generally was authorized unless they made their names known to the assessors. There is nothing in the record to show that the heirs in the present case took any steps to make their names so known.

The lunch cart properly was assessed as part of the real estate involved. Land and the buildings ‘erected thereon or affixed thereto’ are properly taxed as a unit and this rule is not affected by private agreements or by the degree of its physical attachment to the land. G.L.(Ter.Ed.) c. 59, § 3. Milligan v. Drury, 130 Mass. 428, 430;McGee v. Salem, 149 Mass. 238, 240, 21 N.E. 386;Paine v. Board of Assessors of Town of Weston, 297 Mass. 173, 175, 7 N.E.2d 584. See Callahan v. Broadway National Bank of Chelsea, 286 Mass. 473, 190 N.E. 792;Crocker-McElwain Co. v....