Keith v. Wheeler

34 N.E. 174, 159 Mass. 161, 1893 Mass. LEXIS 110

• Court: Massachusetts Supreme Judicial Court
• Decided: May 19, 1893
• Status: Published

Opinion

Allen, J.

By Pub.' Sts. c. 12, § 49, real estate which has been sold for taxes may be redeemed, when the person offering to redeem is a mortgagee of record, at any time within two years after he has actual notice of the sale. There are two principal questions in the case: 1st, whether the demandant is to be deemed to be a mortgagee of record; 2dly, whether he offered to redeem within two years after he had actual notice of the tax sales.

1. At the time of the tax sales the demandant was mortgagee of record, but the tenant contends that he lost that character by reason of the release to him from the owner of the equity of redemption several months after the last tax sale. Such release did not have the effect to work a merger, and to extinguish his title as mortgagee, he having a clear interest to maintain the same, in view of the intervening tax titles. Loud v. Lane, 8 Met. 517. Evans v. Kimball, 1 Allen, 240, 242. New England Jewelry Co. v. Merriam, 2 Allen, 390. Tucker v. Crowley, 127 Mass. 400, 402. Factors & Traders' Ins. Co. v. Murphy, 111 U. S. 738, 744. 2 Washb. Real Prop. (5th ed.) 203-206.

2. The words “ actual notice of the sale,” as used in the statute, mean something more than knowledge of such facts as might be sufficient to put one on inquiry. Assuming that actual notice to the demandant’s agent is the same thing as actual notice to the demandant, the principal fact relied on to show actual knowledge on the part of the agent is the language of the two releases. The first one says, “ subject to any unpaid taxes ”; the second one says, “ subject to any and all unpaid taxes.” These words might be sufficient to put him on inquiry, but they are not equivalent to actual notice of the sales, for taxes. See Lamb v. Pierce, 113 Mass. 72, Parker v. Osgood, 3 Allen, 487, Crocker’s Notes on Pub. Sts. c. 120, § 4, and cases there cited, for illustrations of the meaning given to the words “ actual notice ” when referring to unrecorded deeds.

Knowledge that in 1888 the taxes were assessed to Welsh is not equivalent to actual notice that Welsh held under a sale for taxes.

3. The words in the release from the owner of the equity to the demandant, “ subject to any and all unpaid taxes, and to a mortgage given to said Keith by one Geo. W. Gay,” do not estop the demandant to deny that he knew of the sales for taxes.

Judgment affirmed.