Worcester v. City of Boston
| Decision Date | 22 May 1901 |
| Citation | 179 Mass. 41,60 N.E. 410 |
| Parties | WORCESTER v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Brandeis, Dunbar & Nutter and W. H. Dunbar, for plaintiff.
A. E Clary, for defendant.
The first question is whether the plaintiff is the owner to whom under St. 1888, c. 390, § 40, the city is directed to pay the balance of the proceeds of the sale remaining after satisfying the taxes and charges. The material part of this section reads thus: 'If the taxes are not paid, the collector * * * may * * * sell the whole * * * of the land and, after satisfying the taxes and charges, he shall deposit the balance, if any, in the treasury of the city or town; and such city or town shall pay such balance to the owner of the estate upon demand.' Prior to the Revised Statutes, the collector could sell so much only of the land as should be sufficient to discharge the taxes and charges. St. 1785, c. 70, §§ 6, 7; Rev. St. c. 8, § 28. But, upon the recommendation of the commissioners of the Revised Statutes (see their note to chapter 8), the collector was authorized to sell the whole land if, in his opinion, it could not be reasonably divided, and a part set off without injury to the residue; and, after first satisfying the taxes and charges, he was to 'pay over the residue to the owner of the estate on demand.' Rev. St. c. 8, § 29. Although this section has been amended in various ways, this direction to pay the surplus to the 'owner of the estate on demand' has been a constant feature. Gen. St. c. 12, § 33; Pub. St. c. 12, § 35; St. 1888, c. 390, § 40. In order to find the true interpretation to be given to the word 'owner' in this connection, it is well to look somewhat into the statutes respecting the assessment and collection of taxes which were in existence when the provision as to the payment of the surplus proceeds of the sale first appeared. Taxes on real estate were assessed to the owner or occupant, and, in the case of mortgaged real estate, the mortgagor was to be deemed the owner unless the mortgagee took possession, after which he was deemed the owner. Rev. St. c. 7,§ 7. The assessors were required (section 29) to make a list for public inspection, showing the valuation and assessment, which list should contain, among other things, the names of the persons assessed, and the description and value of the real and personal estate assessed to each; and also (section 31) to commit a similar list, with their warrant, to the collector. The collector, with this list and warrant before him, proceeded to collect the taxes named in the list 'according to the warrant.' Rev. St. c. 8,§ 1. He could distrain the goods of or arrest the persons named in the warrant. Sections 7, 11. Taxes assessed on real estate constituted a lien thereon, and he could collect by sale thereof 'after a demand of payment, made either on the person taxed or upon any person occupying the estate.' Section 18. This remedy was in addition to the remedy by distress and arrest as against the person taxed. Before selling, he was required to give notice of the time and place of sale by an advertisement, which should also state 'the names of all the owners, if known to him, with the amount assessed on their lands respectively.' Sections 24, 25. Section 32 provides that the 'owner, or his heirs or assigns,' may redeem from the sale at any time within two years thereof. Upon a consideration of these various provisions, it is seen that the persons against whom the collector was to proceed were those named in the list committed to him by the assessors. They were the persons upon whom he was to make his demand, whose goods he might distrain, and whom he might arrest. His personal remedies for the collection of the tax could be enforced only against the persons named in the list. But in the proceedings to enforce the lien upon the land he was not so strictly confined to such persons. The demand for the payment of the tax need not by made upon the person taxed, but it was sufficient if it was made upon any person occupying the land. The collector was required also to state in his notice of sale the names of all the owners known to him. This was an important part of his duty, since it might be that the person named in the tax list was not the owner at the time of the assessment, not even taxed as such, but simply as the occupant. The proceedings are to enforce a lien. It is manifest that, as a general rule, the only persons interested in them are the persons having an interest in the land at the time of sale, and that, following the usual rule in such cases, they would be the persons entitled to the surplus. To hold otherwise, and to say that the surplus should be paid to the owner at the time of the assessment, although he had parted with his title, so that at the time of the sale he was not the owner of the land, would be likely to work great injustice in many cases, and would be inconsistent with the general principles applicable to the enforcement of liens and the distribution of surplus proceeds in case of sale. In the various changes which have since been made in the tax laws, there does not appear anything which changes the meaning of the word 'owner,' as used in this connection, and it must therefore be held that the word designates the owner at the time of the sale.
It is contended, however, by the plaintiff that the term 'owner' should be held broad enough to include mortgagees, and that in every case where there are such parties it is the duty of the city or town to pay the money over to the persons interested, in the order of the priority of their interests in the land; in a word, that the money stands for the land, and that those who have any interest legal or equitable, in the land, have a like interest in the money. But it is to be noted that at the time this provision for the payment of the surplus was first inserted it was to be paid by the collector himself, and the word 'owner' had been pretty clearly defined in the tax statutes, especially as between mortgagor and mortgagee. In Rev. St. c. 7, § 7, it was provided that taxes on real estate were to be assessed to the owner or occupant, and in the case of mortgaged real estate 'the mortgagor was to be deemed the owner unless the mortgagee took possession,' after which he was to be deemed the owner. It would be difficult to lay down the rule in clearer terms, so far as respects the assessment. The tax, whether assessed to the owner of the fee or to the mortgagee in possession as the owner, was a tax upon the whole land; and the general rule was that the tax, whether assessed to the owner, whose name might be known or unknown, or to a life tenant or an occupant, was a tax upon the whole land, and not merely on the interest of the person taxed. The tax is upon the parcel of real estate as one entire interest. Parker v. Baxter, 2 Gray, 185, 189. Titles to real estate are frequently very complicated. There may be life estates absolute or defeasible, vested or contingent, leasehold interests, mortgagees and lienors of various kinds, and the claims secured by the...
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