Widersum v. Bender

• Decision Date: 07 January 1899
• Parties: WIDERSUM et al. v. BENDER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 436

52 N.E. 717

WIDERSUM et al. v. BENDER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1899

COUNSEL

F.C. Dowd, for appellant.

T.F McDonough and J.M. Minton, for appellees.

OPINION

BARKER J.

The tax sale from which the plaintiffs seek to redeem took place on October 18, 1893, and this bill was filed on April 10, 1897. Under the provisions of St.1888, c. 390, § 76, this court has equity powers in all cases of taking or sale of real estate for the payment of taxes assessed thereon, if relief is sought within five years from the taking or sale. While this provision does not in every case extend the time of redemption to five years, it allows the court to decree redemption upon a bill filed within five years from the sale if the circumstances render it equitable. O'Day v Bowker, 143 Mass. 59, 9 N.E. 16. See, also, Smith v. Smith, 150 Mass. 74, 22 N.E. 437; St.1849, c. 213, § 2; St.1856, c. 239, § 4; Gen.St. c. 12, § 42; St.1878, c. 266, § 14; Pub.St. c. 12, §§ 49, 66; St.1888, c. 390, §§ 57, 76; Mitchell v. Green, 10 Metc. (Mass.) 101; Rand v. Robinson, 11 Cush. 289; Parker v. Baxter, 2 Gray, 190; Simonds v. Towne, 4 Gray, 603; Rogers v. Rutter, 11 Gray, 410; Tinslar v. Davis, 12 Allen, 80; Faxon v. Wallace, 98 Mass. 44; Loud v. City of Charlestown, 99 Mass. 209; Gladwin v. French, 112 Mass. 186, 187; Dewey v. Donovan, 126 Mass. 337; Langley v. Chapin, 134 Mass. 88; Sherwin v. Bank, 137 Mass. 446, 447.

As there is no report of the evidence, or of the facts found by the single justice, the only question brought up by the defendant's appeal is whether the decree is one which could be entered upon the bill. We think that the bill alleges circumstances which make it equitable to allow the plaintiffs to redeem. They were owners of a remainder in fee, after the life estate of the defendant Bender, whose duty it was to pay the tax. Bender and Hormel, who purchased the tax title a week after the sale, kept the sale secret from the plaintiffs, in order to cause them to lose the right of redemption, and, intending to prevent the plaintiffs from redeeming, wrongfully conspired to defraud them. Bender (owning the life estate) and Hormel (owning the tax title), on December 3, 1896, more than two years and less than five from the tax sale, joined in a deed to the defendant Reichardt, which gave her the fee if the tax title could not be redeemed; and she gave back to Hormel a mortgage, yet outstanding. It is not alleged that Reichardt took with notice of the right to redeem, nor that she was a party to, or chargeable with knowledge of, the fraud or conspiracy of Bender and Hormel. But her answer does not allege that she was a purchaser without notice and in good faith, and such an allegation, if made, might not have been proved. There was nothing to prevent a finding that the appellant took her title under such circumstances as made it equitable to allow the plaintiffs to redeem.

The decree, therefore, cannot be reversed because of the defendant's appeal. It is evident, however, that it does not give the...