Russell v. Deshon

124 Mass. 342, 1878 Mass. LEXIS 315

• Court: Massachusetts Supreme Judicial Court
• Decided: April 1, 1878
• Status: Published

Opinion

Soule, J.

By the Gen. Sts. c. 11, § 38, assessors are required to commit the tax list to the collector within a reasonable time. By c. 12, § 22, it is provided that “ taxes assessed on real estate shall constitute a lien thereon for two years after they are committed to the collector; and may be levied by sale thereof, if the tax is not paid within fourteen days after a demand of payment made either upon the person taxed or upon any person occupying the estate; but the collector may sell real estate for taxes after two years have elapsed, unless the estate has been alienated in the mean time.” The effect of this section is to make the tax a lien or incumbrance on the estate until the end of the two years, and no longer, although the tax may be afterward levied by sale of the land, if it has not been alienated by the person taxed. Kelso v. Boston, 120 Mass. 297.

It is evident that the purpose of a lien limited to two years was to give municipal officers abundant time in which to collect the taxes assessed on land, and, no less, to fix a time when the land should be released from an incumbrance created by the law for the public advantage. We are of opinion that the two years, at the expiration of which the lien is lost, begin to run when the tax is first committed to a collector. Any other construction of the statute would leave it quite uncertain when the lien would cease to exist. If a new lien, to continue for two years, were created whenever, by reason of the death or removal of a collector, the tax list is committed to a temporary collector, it is obvious that estates might be held under incumbrance for an indefinitely long period. We are not aware of any reason which makes this desirable in behalf of the public; and it would be manifestly inconvenient for the individual citizens.

The plaintiff’s land was not sold by the collector until more than two years after the tax was committed to his predecessor in office. After the tax was assessed, the land was alienated by the owner to whom it was taxed, and by his grantee, and at length was conveyed to the plaintiff, before the.collector sold it. The collector’s sale was therefore void, and his deed to the defendant conveyed no valid title. But, as the defendant has caused the deed to be recorded, and refuses to release to the plaintiff, and claims that he owns the premises, the collector’s deed to him creates a cloud on the plaintiff’s title. The plaintiff, having continued in possession of the premises since he took his deed in November, 1875, cannot try his title by writ of entry, and can maintain a bill in equity to remove the cloud from his title. Clouston v. Shearer, 99 Mass. 209.

The demurrer must be overruled; and the plaintiff is entitled to a deed of release from the defendant, and to recover his costs.

Decree accordingly.