Town of Lenox v. Oglesby

• Decision Date: 31 March 1942
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TOWN OF LENOX v. OGLESBY & others.

311 Mass. 269

41 N.E.2d 45

TOWN OF LENOX v. OGLESBY & others.

Supreme Judicial Court of Massachusetts, Berkshire.

March 31, 1942

February 4, 1942.

Present: FIELD, C.

J., QUA, COX, &amp RONAN, JJ.

Tax, On real estate: assessment, taking.

In the circumstances of their use together, a finding was warranted that two tracts of country land separated by a road properly were assessed in

1934 as one parcel to one who had owned them since 1928 and had not filed any real estate list with the assessors nor requested an assessment of the tracts separately.

An assessors' tax list was not in the circumstances defective as to its description of the uses of buildings on parcels of land assessed as

"house," "garage," "storage house," "potting house," "ice house," and "shed"; nor as to its description of the land upon which the buildings were situated merely by lot numbers with a statement of the number of acres included and the value of the land.

In the circumstances, a finding, that there was no substantial or misleading error nor irregularity in the proceedings of a tax collector in a taking of real estate in 1936 for nonpayment of taxes, was warranted although the instrument of taking stated only the amount of the tax with interest and a charge of thirty-five cents for a demand and there were omitted certain other allowable incidental costs and expenses to the date of taking; and the tax title was not invalid.

PETITION, filed in the Land Court on October 2, 1939, for foreclosure of a tax lien.

The case was heard by Fenton, J.

F. deL.

Cunningham, for the respondents Oglesby.

J. M. Rosenthal (C.

J. Broderick, Town Counsel, with him,) for the petitioner.

COX, J. This is a petition to foreclose the rights of redemption in land taken by the petitioner in 1936 for nonpayment of taxes assessed in 1934 to the respondent Kate Oglesby, the owner of the land. The judge of the Land Court, whose decision is made a part of the bill of exceptions, made findings of fact, denied certain requests of the respondents for rulings, ruled that the tax taking was valid, and, inasmuch as there had been an offer to redeem by the respondents, if the taking was determined to be valid ordered that the case stand for further hearing on the matter of redemption. The respondents Mrs. Oglesby and her husband who has an inchoate right of curtesy, excepted. The exhibits mentioned in the decision of the judge are, by reference, incorporated in and made a part of the bill of exceptions, which concludes with the statement that "All of the evidence material to these exceptions is set forth above or comprised in the papers and exhibits incorporated herein by reference." Apart from the exhibits, however, there is no evidence reported. We proceed to consider the case upon the basis of the facts, subsidiary and ultimate, contained in the decision of the judge and the documentary evidence. See Sheehan Construction Co. v. Dudley, 299 Mass. 48, 50, 51; McCarthy v. Lane, 301 Mass. 125 , 127; Boston v. Cable, 306 Mass. 124 , 126.

The respondents contend that the petitioner's tax title is invalid because it is based upon the supposed lien of a single tax levied generally upon two parcels of land, disconnected and sharply and distinctly divided by use and character, which should have been assessed separately. Sometime, apparently in 1928, Mrs. Oglesby's husband purchased over eight hundred twenty-one acres of land in Lenox, including the land involved in the case at bar. Shortly thereafter he engaged a surveyor and indicated certain parts of the property that he wished to be designated as separate parcels. This was done, a plan was made for the purposes of sale, and a copy of it was given to the petitioner's tax collector by Mrs. Oglesby's husband, who told him that it was for the purpose of assisting in assessing the property. No request, however, was ever made to assess the parcels separately, nor was any real estate list given or sent to the assessors by either of the respondents. Parcels 7 and 8, as indicated on the plan, were conveyed to Mrs. Oglesby by her husband in 1928, and she has been the owner ever since. These two parcels of land are respectively parcels 1 and 2 in the deed to her and in the notice and instrument of taking. For a good many years prior to 1928, parcels 7 and 8, and two other sizable areas adjoining, had been used by the then owners as one estate. Parcel 7 consists of about seventy-five acres, on which there is a large residence and other buildings, hereinafter referred to. Across a country road from this parcel is parcel 8, consisting of about nine and one half acres, and prior to 1928, the owners of the two parcels and the adjoining land used the stables or barns on parcel 8 for farm purposes. There is now only one stable or barn on this parcel. Since 1928 the respondents have occasionally stabled horses there and have permitted other uses by a neighbor. Prior to 1934, this parcel was fenced, and there is also a fence across the road in front of parcel 7. These two parcels (7 and 8) were assessed to Mrs. Oglesby in 1934 as a single parcel with a single valuation. The judge found as a fact that both parcels were used as one estate and have remained as one estate from 1934, and that the assessment of them as one parcel was valid.

The applicable law relating to the assessment of taxes on real estate and the method of assessment is found in G. L. (Ter. Ed.) c. 59, Sections 11, 43-46. Appended to Section 45 of said c. 59 are forms with uniform headings for valuation lists of the assessors' valuation books which call for a description, by name or otherwise, of each and every lot of land owned by each person, and the value of the same. See Shruhan v. Revere, 298 Mass. 12.

There is no hard and fast rule that can be applied universally to guide assessors in determining whether parcels of land are to be assessed separately or together. In some instances the facts may be too clear to permit argument, and in others there may be real difficulty. The question now under consideration has been discussed in several cases, many of which are collected in Marlborough v. Poorvu, 305 Mass. 124 . The respondents concede, rightly as we think, that no single factor is decisive of the issue. From the entries in the valuation books, it appears that all of the real estate assessed to Mrs. Oglesby is comprised in the lots in question. It is difficult to see how she or her husband could be misled by the entries. See Bemis v. Caldwell, 143 Mass. 299 . It is not suggested that any injury has arisen to them in assessing the two parcels or lots as one, unless thereby the law was not complied with. In this connection, it is to be recalled that no list of the respondents' real estate was given or sent to the assessors. (See G. L. [Ter. Ed.] c. 59, Section 29; St. 1933, c. 254, Section 34.) The failure of Mrs. Oglesby to bring in such a list is not necessarily fatal to an application for abatement. (See Section 61 of said c. 59 as amended by St. 1933, c. 165, Section 2.) Nevertheless, it is not unreasonable to assume that if such list had been brought in seasonably, the assessors would have followed it in making the assessment. See Westhampton v. Searle, 127 Mass. 502, 506. We are of opinion that the finding of the judge that both parcels of land constituted one estate should stand, and that there was no error in the refusal of any of the rulings requested relating to this issue. The case at bar is distinguishable from Shruhan v. Revere, 298 Mass. 12 .

The respondents also contend that the petitioner's tax title is invalid by reason of defects or omissions in the valuation and assessment list of 1934 and in the instrument of taking, in three particulars, that is, (1) that the list did not enumerate and describe by naming their uses the several buildings on the land assessed; (2) that the list did not describe the land so that it could be identified; and (3) that the instrument of taking did not contain a statement of the incidental expenses and costs to the date of the attempted taking, and hence did not correctly state the amount of the tax lien upon the land.

The forms appended to Section 45 of said c. 59, already referred to, contain a heading entitled, "Buildings of all kinds, described by naming their uses." The valuation list of Mrs. Oglesby's assessment contains the following items: house $50,000; house $100; garage $2,500; storage house $500; potting house $100; ice house $200; garage $250; shed $250; shed $100. The judge found that the descriptions of the buildings and of the land in the valuation list fairly designated the premises for the information of the taxpayer and those interested and "were such that the respondents and nobody else were or could have been misled and were such that anyone could ascertain with reasonable certainty the property taxed." We are of opinion that the buildings were adequately described as to use.

From the description of the buildings in the valuation list, there would seem to be no difficulty in ascertaining their uses. The words used are not uncommon or misleading. It is true that the judge was more detailed in his general description of the buildings, as, for example, when he stated that there was a large residence of thirty rooms, a tool house, a large garage with servants' quarters and a small garage for the use of "the help." It would also seem that he described the sheds, so designated in the list, as stables. These descriptions of the judge, however, were made in describing parcels 7 and 8, and we are of opinion that they do not affect his finding as to the sufficiency of the descriptions used by the assessors.

The second particular is that the land itself was not sufficiently described. The judge's finding,...