Davis v. City of Boston

129 Mass. 377, 1880 Mass. LEXIS 255

Opinion

Soule, J.

On May 1, 1876, Curtis and others, the first mortgagees of the land described in the plaintiff’s bill, were the only persons to whom the tax on that land could be legally assessed, because they were mortgagees in possession. Gen. Sts. c. 11, § 8. The original tax for the year 1876 was therefore void, because it was not assessed to the proper person. A reassessment of the tax was within the authority of the assessors for the year 1877, if made in the just amount and to the person to whom the tax ought at first to have been assessed. Gen. Sts. a. 11, § 53. The attempted reassessment was- invalid, because it was made to Tobey and others, the owners on the 1st of May, 1876, of the equity of redemption, instead of to Curtis ahd others, the mortgagees in possession. The statute on this point is explicit. The reassessment was invalid for the further reason that it was not based on the valuation of the year for which the tax was originally assessed. It was not, therefore, a reassessment of a tax which was void by reason of irregularity in assessing it to the wrong person, but was a new and original tax, assessed without authority. Hubbard v. Garfield, 102 Mass. 72.

But if this were not so, and the tax were legally reassessed, it did not constitute a lien on the land, and the collector had no authority to make sale of the land to enforce its collection.

When the tax was originally assessed, Tobey and others owned the land subject to two mortgages. Afterward, and before the reassessment, the land was sold under a power of sale contained in the second mortgage, and a valid absolute title was conveyed to the plaintiff, who was also the second mortgagee. This was an alienation of the estate which was in Tobey and others, leaving in them no title or interest whatever. Hall v. Bliss, 118 Mass. 554. If, therefore, Tobey and others were the persons to whom the tax ought originally to have been assessed, as owners of the land, a tax reassessed to them after a sale which extinguished their title, could not constitute a lien on the land, under the statute which provides that reassessed taxes on real estate shall constitute a lien thereon from the time they are committed to the collector, unless the estate has been alienated between the first and second assessments. Gen. Sts. c. 12, § 23.

The proceedings of the collector in selling and conveying the land were therefore unwarranted, and his deed to the defendant did not convey a valid title. But, as the defendant has caused the deed to be recorded, and refuses to release to the plaintiff, and claims title to the land, the collector’s deed to it constitutes a cloud on his title. As he is in possession, he cannot try his title by writ of entry, and may maintain this bill to remove the cloud from it. He is entitled to a deed of release from the defendant, and to recover his costs. Clouston v. Shearer, 99 Mass. 209. Russell v. Deshon, 124 Mass. 342.

Decree affirmed.