Perry v. Lancy

60 N.E. 472, 179 Mass. 183, 1901 Mass. LEXIS 541

• Court: Massachusetts Supreme Judicial Court
• Decided: May 24, 1901
• Status: Published

Opinion

Holmes, C. J.

This is a writ of entry brought by a party having the fights of a mortgagee of record, McGauley v. Sullivan, 174 Mass. 303, against the holder of a tax title, on the ground that his title has been brought to an end. St. 1888, c. 390, § 57. The case is before us upon agreed facts, and it appears that the tenant has had no possession of the premises other than arises by force of law from his tax title. The first defence is based on this fact. The demandant learned of the tax title for the first time on January 21, 1897. It would seem that the tenant resorted to devices which have become familiar to the court through a number of recent cases in order to avoid a redemption until it should be too late. The tax sale took place on October 12, 1893, so that both the two years allowed for redemption by St. 1888, c. 390, § 57, and the five years within which by § 76 a bill in equity can be brought have expired. Evidently the purpose of this purely technical defence, an afterthought, as appears by the pleadings, is to carry through the trickery by which the demandant is to be deprived of a remedy.

But it is agreed that the sale to the tenant was valid. Therefore the tenant got not only a paramount and new title, but a seisin at the moment of the conveyance. There is nothing which shows as matter of law that he has been disseised since, although the mortgage has been foreclosed and the land conveyed to the demandant. St. 1891, c. 354. It is to be presumed that possession followed the tax title, especially as this seems to have been marsh land and probably not occupied by any one.

The other defence is that there has been no tender sufficient to discharge the lien. § 57. The demandant seems to have .made unavailing attempts to find the tenant for the purpose of paying him, and to have written repeatedly. On July 15, 1898, he received a reply dated from East Barnard, Vermont, saying: “ You are not entitled to redeem.” Since that time the demand-ant always has been able and, it may be presumed, ready and willing, to pay the amount properly payable to the tenant, and it is agreed that if he recovers now he is to pay a certain sum. We are of opinion that as against the tenant the demandant is entitled to stand in the position of one who has made a tender under § 57, and that the lien is discharged. Schayer v. Commonwealth Loan Co. 163 Mass. 322. Hazard v. Loring, 10 Cush. 267.

The suggestion that the demandant should have paid the city treasurer and that the statute giving the right of redemption to mortgagees of record is unconstitutional, have been disposed of in earlier decisions. Barry v. Lancy, ante, 112.

Judgment for demandant.