Rogers v. City of Lynn

86 N.E. 889, 200 Mass. 354, 1909 Mass. LEXIS 996

• Court: Massachusetts Supreme Judicial Court
• Decided: January 5, 1909
• Status: Published

Opinion

Morton, J.

In each instance before he paid the taxes which he now sues to recover back, the plaintiff had become the purchaser at a tax sale of the premises on which the taxes that he paid had been assessed, and had received from the collector deeds in proper form duly acknowledged which he had caused to be regularly recorded. In other words, by virtue of the tax deeds he had become the owner of the two parcels subject only to the liens which the defendant had for prior taxes, and to the right of the former owner to redeem. Butler v. Stark, 139 Mass. 19. O’Day v. Bowker, 143 Mass. 59, 62. Perry v. Lancy, 179 Mass. 183. As such owner we think that he was entitled to redeem the premises by the payment of the prior taxes to which they were still subject in the defendant’s favor. The language of the statute is broad enough to include any kind of ownership and has been, in effect, so construed. Hillis v. O’Keefe, 189 Mass. 139. In order to redeem, the person seeking to redeem must be the owner, but we see no reason for limiting the right of redemption, as between one who seeks to redeem and the city, to the person who was the owner at the time when the tax, from which redemption is sought, was assessed. It has been distinctly held that the right of a mortgagee to redeem is not limited to one who was such at the time when the tax was assessed. Barry v. Lancy, 179 Mass. 112, and cases cited. The plaintiff could not have redeemed from the taxes for which the parcels were sold to him because he was not then, in any sense, an owner. Neither, for the same reason, could he have redeemed at the time when the premises were sold for the prior taxes. But, when he became an owner by purchase at the tax sale, we do not see why the rights of redemption from prior taxes did not attach, by virtue of the statute, to his ownership, as well as to that of one who was an owner when the taxes were assessed.

But, however that may be, and whether he was an owner or not within the strict meaning of the statute, the transaction between the plaintiff and the defendant must be regarded as operating as a payment of the prior taxes, even though the parties may have supposed that it was a purchase by or assignment to the plaintiff for a consideration equal to the prior taxes of any right or interest which the city had in the premises, and may have intended that it should have that effect. Whether the parties intended it or not, the receipt of the prior taxes by the defendant released the premises from the liens which it had thereon to secure their payment and therefore operated as a payment of such taxes. To that extent, whatever the exact nature of the plaintiff’s interest in the property conveyed to him, he was benefited by the release which he received, and the case is not, therefore, one of a total failure of title or of consideration.

Judgment affirmed.