Holmes, J.
The first question raised by the bill of exceptions touches the construction of the clause of the deed of September 17, 1873, to the Corbitant Mills. There is no doubt that it attaches a condition to the estate conveyed. The tenant argues that it amounts only to a personal covenant with the grantors. But there is nothing in the context which warrants any other than the natural interpretation of the words used, and we must therefore assume that they mean what they seem to.
The condition was broken, and the demandant entered for the breach in 1877. The nature of the respective interests of the demandant and McGowan does not appear, and we cannot discover enough in the bill of exceptions to show that the demand-ant’s entry was not made by him as cotenant, or as agent on behalf of McGowan, as well as for himself, or was insufficient for the purpose of revesting the entire- estate. Smales v. Dale, Hob. 120. Co. Lit. 258 a. 2 Cruise Dig. tit. 13, c. 2, § 43.
The entry was not invalid for want of notice. The cases cited for the tenant lend no countenance to the position, that such an entry must be accompanied by notice in order to be effectual, when there is no ambiguity in the character or purpose of the entry.
Finally, the validity of the entry was not affected by the sale for taxes. This was not argued by the tenant, and it is enough to say that it does not appear distinctly from the bill of exceptions whether the first conveyance under a tax sale was before [87]*87or after the entry, without meaning to intimate that an entry would not have been good after the sale.
The fee was therefore revested in the demandant and McGowan, and McGowan’s conveyance to the demandant is not open to the objection urged by the tenant, that it was an attempt to convey a mere right of reentry.
The rest of the case is made difficult to deal with by the obscurity of the bill of exceptions. The rulings asked by the tenant were open to the objection that they assumed the truth of all the facts which his evidence tended to prove. But the court not only refused the tenant’s requests, but ruled that the demandant could maintain his action and had title. Considering the frequent infirmity of tax titles, and that possession is rarely taken under tax deeds, it is hard to believe that the ruling in question was not made subject to a tacit assumption or finding that the demandant had the elder possession, or that there was a defect in the tax proceedings. But as the former does not clearly appear, and as the tenant offered evidence tending to show a valid sale for taxes to Fall River in 1876 and 1877, it seems fair to interpret the ruling as meaning that the demandant had title by his entry, irrespective of any mere possessory right, and notwithstanding the tax sale, even if valid, or the lapse of the period of redemption since that sale took place.
To maintain this ruling, so interpreted, it must either be shown that the tax sale did not affect the demandant’s title, but applied only to the existing fee, which was extinguished by the demandant’s entry for breach of condition, or that the effect of the sale was subsequently got rid of.
As to the former of these propositions, it is to be observed that the statutes nowhere expressly contemplate a case like the present. But the reasoning and authority of Parker v. Baxter, 2 Gray, 185, go far to establish that a sale for taxes is a conveyance which deals with the land and creates a title paramount to any existing estate. There can be no doubt that the lien binds the land; Gen. Sts. c. 12, § 22; and as the lien depends upon the sale for its efficacy, there is the strongest reason for believing that the sale was intended by the statute to go behind all interests. . This construction is confirmed by a reference to the legislation a few years before and after Parker v. Baxter. The St. [88]*88of 1849, C. 213, § 1, reenacted in the St. of 1856, c. 239, § 5, provided that “ no sale of real estate for taxes shall affect the right of any person not taxable therefor, unless a written demand is first made upon said person, by the collector, for the payment of said taxes.” This was repealed by the St. of 1858, c. 82, and it ' may fairly be argued that the Legislature has thus interpreted its own work, and has indicated its will for the future. For, after declaring by implication that a saving act was necessary to prevent the rights of persons not taxable from being affected, it has done away with the saving act, and has reenacted the old laws without it, and thus has signified its intent to make the sale binding on all the world.
The language of the Gen. Sts. c. 12, § 35, is entirely consistent with the view we take. By that section, the collector’s deed “ shall convey .... all the right and interest which the owner had therein at the time when the same was taken for his taxes.” These words were one of the amendments to the report of the commissioners on the Revised Statutes, and it is pretty clear that they were not intended to cut down the effect of a sale, but simply to declare that the effect was not diminished by an intervening alienation. The sale for taxes therefore, if valid, created a title paramount to the demandant’s, and that title became absolute by the lapse of two years.
It remains to consider whether anything has happened since to get rid of the title thus acquired by Fall River. The only material facts are the payment by the Corbitant Mills and the deed from Fall River to the corporation on March 1,1880. The deed conveyed no title to the Corbitant Mills, as against the demandant, if for no other reason because it was not made in pursuance of a sale by public auction. Sts. 1862, c. 183, § 7; 1878, c. 266, § 10. Walsh v. Wilson, 130 Mass. 124, 126. But the question is not on the effect of the deed, but on the effect of the payment.
In order to sustain the ruling that the demandant could maintain his action and had title, it is necessary to hold that the transaction between the city of Fall River and the Corbitant Mills had the same effect as a payment by the demandant within the two years, discharged all claim of Fall River upon the land, and left the demandant’s title clear. Such a decision would be [89]*89impossible in any ordinary case; for it amounts to saying, that after the claim for taxes is satisfied and extinguished and the city has become owner of the land which formerly secured it, in fee simple, a party, who by the demandant’s entry had become a stranger to the land, and who, if not by the entry, at least by the satisfaction of the claim for taxes, by the sale to the city and lapse of two years, had become a stranger to the claim in any form, (if there is any claim except to enforce the lien,) could, without the concurrence of the demandant, treat the claim as outstanding, could pay it on his own behalf not acting as the demandant’s agent, and could by a transaction in pais treat the city’s interest as only a lien to be discharged by such payment, and thus devest an estate of fee simple, and revest a title in the demandant without his concurrence and without a deed. Such a conclusion strains a good many technical rules; but with regard to tax titles, as they have been dealt with in this Commonwealth, it may be accepted. It must be remembered that the whole machinery of sale to a city has for its only purpose to put a certain sum of money into the treasury in respect of the land upon which that sum is assessed.
Free access — add to your briefcase to read the full text and ask questions with AI
Holmes, J.
The first question raised by the bill of exceptions touches the construction of the clause of the deed of September 17, 1873, to the Corbitant Mills. There is no doubt that it attaches a condition to the estate conveyed. The tenant argues that it amounts only to a personal covenant with the grantors. But there is nothing in the context which warrants any other than the natural interpretation of the words used, and we must therefore assume that they mean what they seem to.
The condition was broken, and the demandant entered for the breach in 1877. The nature of the respective interests of the demandant and McGowan does not appear, and we cannot discover enough in the bill of exceptions to show that the demand-ant’s entry was not made by him as cotenant, or as agent on behalf of McGowan, as well as for himself, or was insufficient for the purpose of revesting the entire- estate. Smales v. Dale, Hob. 120. Co. Lit. 258 a. 2 Cruise Dig. tit. 13, c. 2, § 43.
The entry was not invalid for want of notice. The cases cited for the tenant lend no countenance to the position, that such an entry must be accompanied by notice in order to be effectual, when there is no ambiguity in the character or purpose of the entry.
Finally, the validity of the entry was not affected by the sale for taxes. This was not argued by the tenant, and it is enough to say that it does not appear distinctly from the bill of exceptions whether the first conveyance under a tax sale was before [87]*87or after the entry, without meaning to intimate that an entry would not have been good after the sale.
The fee was therefore revested in the demandant and McGowan, and McGowan’s conveyance to the demandant is not open to the objection urged by the tenant, that it was an attempt to convey a mere right of reentry.
The rest of the case is made difficult to deal with by the obscurity of the bill of exceptions. The rulings asked by the tenant were open to the objection that they assumed the truth of all the facts which his evidence tended to prove. But the court not only refused the tenant’s requests, but ruled that the demandant could maintain his action and had title. Considering the frequent infirmity of tax titles, and that possession is rarely taken under tax deeds, it is hard to believe that the ruling in question was not made subject to a tacit assumption or finding that the demandant had the elder possession, or that there was a defect in the tax proceedings. But as the former does not clearly appear, and as the tenant offered evidence tending to show a valid sale for taxes to Fall River in 1876 and 1877, it seems fair to interpret the ruling as meaning that the demandant had title by his entry, irrespective of any mere possessory right, and notwithstanding the tax sale, even if valid, or the lapse of the period of redemption since that sale took place.
To maintain this ruling, so interpreted, it must either be shown that the tax sale did not affect the demandant’s title, but applied only to the existing fee, which was extinguished by the demandant’s entry for breach of condition, or that the effect of the sale was subsequently got rid of.
As to the former of these propositions, it is to be observed that the statutes nowhere expressly contemplate a case like the present. But the reasoning and authority of Parker v. Baxter, 2 Gray, 185, go far to establish that a sale for taxes is a conveyance which deals with the land and creates a title paramount to any existing estate. There can be no doubt that the lien binds the land; Gen. Sts. c. 12, § 22; and as the lien depends upon the sale for its efficacy, there is the strongest reason for believing that the sale was intended by the statute to go behind all interests. . This construction is confirmed by a reference to the legislation a few years before and after Parker v. Baxter. The St. [88]*88of 1849, C. 213, § 1, reenacted in the St. of 1856, c. 239, § 5, provided that “ no sale of real estate for taxes shall affect the right of any person not taxable therefor, unless a written demand is first made upon said person, by the collector, for the payment of said taxes.” This was repealed by the St. of 1858, c. 82, and it ' may fairly be argued that the Legislature has thus interpreted its own work, and has indicated its will for the future. For, after declaring by implication that a saving act was necessary to prevent the rights of persons not taxable from being affected, it has done away with the saving act, and has reenacted the old laws without it, and thus has signified its intent to make the sale binding on all the world.
The language of the Gen. Sts. c. 12, § 35, is entirely consistent with the view we take. By that section, the collector’s deed “ shall convey .... all the right and interest which the owner had therein at the time when the same was taken for his taxes.” These words were one of the amendments to the report of the commissioners on the Revised Statutes, and it is pretty clear that they were not intended to cut down the effect of a sale, but simply to declare that the effect was not diminished by an intervening alienation. The sale for taxes therefore, if valid, created a title paramount to the demandant’s, and that title became absolute by the lapse of two years.
It remains to consider whether anything has happened since to get rid of the title thus acquired by Fall River. The only material facts are the payment by the Corbitant Mills and the deed from Fall River to the corporation on March 1,1880. The deed conveyed no title to the Corbitant Mills, as against the demandant, if for no other reason because it was not made in pursuance of a sale by public auction. Sts. 1862, c. 183, § 7; 1878, c. 266, § 10. Walsh v. Wilson, 130 Mass. 124, 126. But the question is not on the effect of the deed, but on the effect of the payment.
In order to sustain the ruling that the demandant could maintain his action and had title, it is necessary to hold that the transaction between the city of Fall River and the Corbitant Mills had the same effect as a payment by the demandant within the two years, discharged all claim of Fall River upon the land, and left the demandant’s title clear. Such a decision would be [89]*89impossible in any ordinary case; for it amounts to saying, that after the claim for taxes is satisfied and extinguished and the city has become owner of the land which formerly secured it, in fee simple, a party, who by the demandant’s entry had become a stranger to the land, and who, if not by the entry, at least by the satisfaction of the claim for taxes, by the sale to the city and lapse of two years, had become a stranger to the claim in any form, (if there is any claim except to enforce the lien,) could, without the concurrence of the demandant, treat the claim as outstanding, could pay it on his own behalf not acting as the demandant’s agent, and could by a transaction in pais treat the city’s interest as only a lien to be discharged by such payment, and thus devest an estate of fee simple, and revest a title in the demandant without his concurrence and without a deed. Such a conclusion strains a good many technical rules; but with regard to tax titles, as they have been dealt with in this Commonwealth, it may be accepted. It must be remembered that the whole machinery of sale to a city has for its only purpose to put a certain sum of money into the treasury in respect of the land upon which that sum is assessed. The city cannot elect to keep the land if it sees fit. It must sell again as soon as the time of redemption is past. Pub. Sts. c. 12, § 58. The land is still only a security to it for the money. And, as no one but the owner is entitled to insist on this sale, we do not see why, if they so agree, the city should not be at liberty to receive its taxes and charges from him without further trouble, on the footing of a payment, and why this should not, ipso facto, extinguish the statutory title after the two years have elapsed, as it would have extinguished it before; or, in other words, why a certificate of payment should not be as good as a deed.
The remaining steps are not so hard to take. If the demand-ant could have discharged the city’s title by a payment accepted in redemption of the land, then the owner of any interest in the land could have done so. Pub. Sts. c. 12, § 57. And having in view the objects of the statute just referred to, without controverting any general doctrine as to payment by strangers, we think that, if the city is willing to permit a redemption by the owner, and the party to whom the premises were assessed presents himself as such, and claims and is allowed to redeem, [90]*90his payment shall have effect by way of redemption, whatever may prove to be the defects in his alleged title.
The result is, that the payment by the Corbitant Mills terminated all estate and interest of the city of Fall River in the demanded premises; and that the demandant was thereafter entitled to recover on the strength of his title alone, irrespective of the superior possessory right which he probably had as against the tenant, who had no rights at all.
The tenant’s claim for improvements is disposed of by the finding of the court. Exceptions overruled.