Desmond v. Babbitt

117 Mass. 233, 1875 Mass. LEXIS 201

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1875
• Status: Published

Opinion

Ames, J.

At the time when the tax was assessed upon this lot of land, Harrington was neither the owner nor in possession of it. It was, therefore, an error to tax him for it. Gen. Sts. c. 11, § 8. Sargent v. Bean, 7 Gray, 125. Rossire v. Boston, 4 Allen, 57. It is true that he had been the owner up to a point of time about four and a half years preceding that time, and no direct notice had been given to the assessors that his interest in the property had come to an end. But under the statutes now in force, there is no doubt that in cases where there is no person ' in apparent occupation of a lot of land, it is the duty of the assessors to make inquiry as to its ownership. If, with reasonable diligence, they cannot obtain trustworthy information, they would be justified in taxing it as the property of an unknown proprietor ; but they would not thereby acquire the right to tax it to a person, .by name, who was neither owner nor occupant.

It is true that in Alvord v. Collin, 20 Pick. 418, it was decided that, where in an assessment upon unimproved land of a nonresident owner, the land was by mistake set against the name of a former owner, the tax was legally assessed. But the question in that case arose under the St. of 1785, o. 50, which did not require non-resident owners of unimproved lands to be named in the assessment. In that respect, the law was changed by the Rev. Sts. o. 7, § 7, the provisions of which have been reenacted in the Gen. Sts. c. 11, § 8.

The assessment to Harrington was therefore invalid, and nc title passed by the collector’s deed to the defendant. According to the agreement, there must be Judgment for the plaintiff.