17-21 Hanover Street, Inc. v. City of Boston

12 Mass. App. Div. 90

This text of 12 Mass. App. Div. 90 (17-21 Hanover Street, Inc. v. City of Boston) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
17-21 Hanover Street, Inc. v. City of Boston, 12 Mass. App. Div. 90 (Mass. Ct. App. 1947).

Opinion

Keniston, C. J.

The plaintiff in this action seeks to recover from the defendant $1,542.78 with interest thereon out of $4,010.28 paid by the plaintiff to the defendant to redeem the plaintiff’s estate at 17-21 Hanover Street, Boston, from a tax title held by the defendant. The sum of $1,542.78 is the amount of the alleged water liens with interest and costs thereon included in the total amount claimed by, the defendant under its tax title.

The matter was presented upon a case stated. The trial judge found for the defendant. The question raised by the report is whether the trial judge was correct in finding for the defendant. Redden v. Ramsey, 309 Mass. 225, 227. Antoun v. Commonwealth, 303 Mass. 80, 81.

[91]*91The tax title when redeemed by the plaintiff included taxes assessed in the years 1938, 1939, 1940 and 1941. The 1938 tax included the unpaid 1936 water bills with interest and costs thereon. The 1939 tax included the unpaid 1937 and 1938 water bills with interest and costs thereon. The 1940 tax included the unpaid 19391 water bills with interest and costs thereon.

Between December 10, 1935 and February 7, 1939 the premises 17-21 Hanover Street, which consists of a parcel of land with a three story building thereon, was owned by Boston Community Centre, Inc., of the Volunteers of America and Robert I. Hunneman, each of whom owned an undivided half interest. Between February 7, 1939 and October 17, 1940 the entire estate was owned by Robert I. Hunneman. By deed executed October 17, 1940 and recorded October 23, 1940 Robert I. Hunneman conveyed the entire estate to the plaintiff which retained title until August 29,1945.

Adjoining the premises 17-21 Hanover Street is another parcel of land with a six-story building thereon numbered 25-33 Hanover Street. Since March 31, 1934 the estate at 25-33 Hanover Street has been owned by the Boston Community Centre, Inc., of the Volunteers of America.

During the period from December 10, 1935 to October 25, 1939 the premises at 17-21 Hanover Street were vacant except at such times as they were occupied by the Boston Community Centre, Inc., of the Volunteers of America.

For about ten years prior to December 31,1930, R. Mars-ton Company was the lessee of both the premises at 17-21 and 25-33 Hanover Street and operated a single restaurant occupying both buildings which were supplied by the defendant with water through a single meter located at 33 Hanover Street. When R. Marston Company vacated both estates on December 31, 1930 all plumbing fixtures except [92]*92several toilets and washbowls were removed from the building at 17-21 Hanover Street. From December 26,1920 until August 29, 1945, there was no water meter on the estate 17-21 Hanover Street and the system of water pipes in the building 17-21 Hanover Street was not directly connected with the defendant’s water mains. Between December 10, 1935 and February 7, 1939 the system of water pipes in the building 17-21 Hanover Street was connected with the system of water pipes in the building at 25-33 Hanover Street ; and whatever water, if any, was used on the estate 17-21 Hanover Street was obtained through that connection. On February 7, 1939 the connection between the two systems was broken.

The estate 17-21 Hanover Street was duly assessed as of January 1, 1938 to Robert I. Hunneman and to the real estate tax thereon was added the 1936 water bills with interest and costs. On June 20, 1938 the Assessors committed the total thereof to the Collector of Taxes. On April 15, 1939 one thousand dollars was paid on account of the total due. . April 24, 1940 the Collector took for the city the real estate at 17-21 Hanover Street because of the nonpayment of the balance of said total and the instrument of taking was duly recorded. In connection with the tax title so acquired by the city there was forthwith set up on the books of the city in the possession of the City Treasurer a tax title account for the estate 17-21 Hanover Street. The tax for the year 1939 with the unpaid water bills for the years 1937 and 1938 with interest and costs thereon were added thereto and the total of these sums were certified to the Tax Collector and were added to the tax account. Again in the year 1940 the tax for that year with the water bills for the year 1939 was similarly certified to the Tax Collector and added to the tax account.

[93]*93November 5,1942 the tax title held by the city not having been redeemed the city filed a petition in the Land Court to foreclose all rights of redemption thereunder. On December 1, 1942 citation issued returnable December 28, 1942 notifying the plaintiff of the pendency of the petition. The citation 'was served upon the plaintiff December 3, 1942. On December 11,1942 an appearance was filed for the plaintiff, but no answer was ever filed. About December 10, 1942 the President of the plaintiff corporation wrote to the Corporation Counsel of the defendant inquiring the amount due upon the tax title and thereafter on January 11, 1943 sent a check for the full amount claimed by the defendant which included the portion of the account for water liens with interest and costs and the defendant gave the plaintiff a receipt and an instrument of tax redemption, and on motion of the defendant the petition was withdrawn January 19, 1943.

When redemption was tendered, neither the treasurer of the city nor any of his subordinates knew of any fact impeaching the validity of any of the water liens scheduled; nor did counsel for the city, nor the plaintiff nor any of its agents, know of any such fact; and, at that time, neither the treasurer of the city nor the plaintiff nor its agents was of opinion that there had been error or irregularity which was substantial or misleading in the amount of any items of water rates or charges, or interest thereon or costs relative thereto, included in the tax title account, or in connection with the proceedings with respect to any of them.

When redemption was tendered the plaintiff believed there was a water meter on the estate at 17-21 Hanover Street and that the water bills scheduled were for water supplied to and for the estate at 17-21 Hanover Street. On or about April 16, 1943 the plaintiff learned for the first time [94]*94that there was no water meter on the estate at 17-21 Hanover Street and that the water bills included in the tax title were for water supplied through the meter upon the estate at 25-33 Hanover Street. The plaintiff forthwith- notified the defendant of the mistake and demanded that the defendant refund the amount of the water bills so scheduled, but the defendant has refused to refund that amount and this action was brought by writ dated September 26, 1945.

The water liens for the year 1936 never attached because ■the lien statement was not seasonably filed. The lien statements for the years 1937, 1938 and 1939 never took effect because the lien statements for those water bills did not contain the name of the owner of record of the estate at 17-21 Hanover Street on January first of the year in which those lien statements were filed.

The water bills with interest and costs included in the tax account paid by the plaintiff to redeem the tax title amounted to $1,542.78.

The provisions of Gen. Laws (Ter. Ed.) chap. 40, secs. 42A to 42F1, inclusive, -with the amendments thereto, the so-called Water Lien Statute, have been accepted by the defendant and are applicable. .

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Related

Knowles v. City of Boston
129 Mass. 551 (Massachusetts Supreme Judicial Court, 1880)
Wheatland v. City of Boston
88 N.E. 769 (Massachusetts Supreme Judicial Court, 1909)
Loring v. Commissioner of Public Works
163 N.E. 82 (Massachusetts Supreme Judicial Court, 1928)
Mechanics Savings Bank v. Collector of Taxes
12 N.E.2d 852 (Massachusetts Supreme Judicial Court, 1938)
Antoun v. Commonwealth
20 N.E.2d 423 (Massachusetts Supreme Judicial Court, 1939)
Redden v. Ramsey
34 N.E.2d 648 (Massachusetts Supreme Judicial Court, 1941)

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Bluebook (online)
12 Mass. App. Div. 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/17-21-hanover-street-inc-v-city-of-boston-massdistctapp-1947.