Inhabitants of Oakham v. Hall

112 Mass. 535

Opinion

Wells, J.

Footnotes

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The demandants claim title under a sale, in 1869, for non-payment of the taxes for the four previous years, reassessed in 1869, on the ground that the original, assessments were invalid. Upon the report it is found that during the whole time until the sale the record title was in John Hill, and the occupation or possession in Percival and Ambrose P. Hall; that it was assessed in 1865 to Percival Hall, and the other three years to Hill; that the reassessment was to “ owner unknown; ” and that the assessors for each of said years knew who were the occupants of said premises, and knew, or had the means of knowing, in whom was the record title.

We are of opinion that the reassessment, and consequently the sale and conveyance to the demandants were invalid: first, because, upon the facts stated, the taxes could not properly be as Bessed to “ owners unknown; ” second, because the original assessments were not invalid. The law requires that “ taxes on real estate shall be assessed, in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the first day of May.” Gen. Sts. c. 11, § 8.

The power to make a reassessment of any tax is derived wholly from the statute, and extends only to that “ which is invalid by reason of any error or irregularity in the assessment.” Gen. Sts. c. 11, § 53. An attempt to reassess a tax when the original assessment was not thus invalid, is without authority and void, and no title can be acquired by means of it. Inglee v. Bosworth, 5 Pick. 498. Pond v. Negus, 3 Mass. 230. Burr v. Wilcox, 13 Allen, 269.

The refusal of the Halls and of Hill to give the assessors information concerning the ownership of the land, and their statements that the taxes ought to be assessed otherwise than they were, were not such as may reasonably be supposed to have misled the assessors, and do not constitute an estoppel in pais.

The sale is void also by reason of non-compliance with the provisions of the St. of 1862, c. 183, § 1. That statute authorizes the collector to make the declaration of purchase on behalf of the town, only after “the sale shall have been adjourned from day to day.” There was no such adjournment in this case, but only for “ a spell ” on the same day.

A question was raised at the argument, whether the disclaimer of the assignee of Hill, who is joint defendant, would operate to vest his title in the demandant so as to enable a recovery to be had upon the title thus acquired by the pleadings in the case.

A disclaimer is a renunciation of title and right of possession. If not falsified, it defeats the action. But the demandant is thereupon entitled to the possession of the land, and the party pleading the disclaimer is forever estopped by the judgment from denying his right of possession. If, however, the plea is falsified, the tenant is nevertheless bound by his disclaimer, and the demandant may have judgment against him. Proprietors of Locks & Canals v. Nashua & Lowell Railroad Co. 104 Mass. 1, 10. The judgment upon a disclaimer, whether for or against the de mandant, is conclusive in his favor upon title, as between the parties. It is sometimes said to enure as a conveyance to the demandant of whatever title or right the party disclaiming had in the land. Jackson on Real Actions, 98. Prescott v. Hutchinson, 13 Mass. 439. This must be intended, we think, only as between the parties and their privies. A judgment for the demandant can hardly operate to establish any issue or proposition inconsistent with the allegations of the declaration, which are that the tenant hath unjustly and without judgment disseised him. A disclaimer purports only the disavowal of title or right in the supposed tenant. It is difficult to see how any new title or source of title can be derived by a demandant from such pleadings.

Under the feudal law, it is true, a disclaimer by a tenant, at the suit of his lord, worked a forfeiture of his estate, which was immediately thereupon revested in the lord. Jackson on Real Actions, 97. But that result followed necessarily from the renunciation and consequent destruction of the particular estate. So at common law, a disclaimer in a writ of entry operates to extinguish whatever estate, adverse to the demandant, the tenant may have had in fact at the time of pleading the disclaimer. If that estate was carved out of the freehold or fee claimed by the demandant, the extinguishment of the particular estate would of course, to that extent, enlarge the estate and title of the demandant.

On the other hand, when two persons are joined as tenants in a writ of entry, a disclaimer by one is said to enure “osa release, to pass all his estate to his co-tenant.” Jackson on Real Actions, 98, Stearns on Real Actions, 222. Prescott v. Hutchinson, 13 Mass. 439. The reason, doubtless, is, that strictly the action will lie against two, only on the ground that they are either joint tenants or coparceners. If they are so in fact, a renunciation of title by one, and its consequent extinguishment, would of itself clothe the other with the whole title, leaving him sole tenant of the whole land so held. If they are joint disseisors, they are joint tenants by disseisin, and the same result would follow a disclaimer by one, so far as their estate by disseisin is concerned. By joining them in the action, the demandant avers them to be joint tenants. Jackson on Real Actions, 72. Stearns on Real Actions, 204. If either of them has any estate or title, in sole tenancy or several tenancy, by right, the renunciation of such title by disclaimer would simply extinguish it.

This view of the nature and operation of a disclaimer will, as we think, afford a solution of the various, and apparently inconsistent effects ascribed to it. The demandant, having no title, can acquire none by the disavowal and extinguishment of his title by one of the tenants joined in the writ.

The result is that there must be judgment for both tenants. That in favor of Goulding, assignee of Hill, will be rendered upon his disclaimer, which must be treated as a plea in abatement, Gen. Sts. c. 134, § 12, and will estop him from claiming the estate against the demandant. The disclaimers of Hall will have the same effect as to the parcels of land to which they apply. The form of pleading is irregular and unauthorized. Wheelwright v. Freeman, 12 Met. 154. Fisk v. Fish, 12 Cush. 150. Richards v. Randall, 4 Gray, 53. Johnson v. Rayner, 6 Gray, 107. But no point in regard to the pleadings is presented upon the report, and as the demandant shows no title to the lands not disclaimed, and has neither traversed nor falsified the disclaimers, there must be Judgment for both tenants.

This case was argued at the last term.