Adams v. Mills, 126 Mass. 278

Adams v. Mills

126 Mass. 278 | Mass. | 1879

Soule, J.

The defence relied on in this case is, that the collector’s deed is void in not stating the cause of sale, and that, consequently, a legal estate in the lands described remains in the defendant and is attachable in a suit at law. It is contended that the deed, though it recites a demand by the collector for the tax, and that the tax remained unpaid after fourteen days had elapsed from the time of the demand, and continued unpaid when the land was advertised for sale, and on the day appointed for the sale, when the first adjournment was made, is void, because it does not state that the tax was still unpaid when the sale was made. The right to sell land for taxes exists only in case-they have not been paid at the time fixed for the sale; Gen. Sts. e. 12, § 33; and the deed given by the collector must state the cause of sale. § 35. So that if the deed in the case at bar fails to show that the tax was unpaid when the sale was made, the plaintiffs cannot maintain their bill.

We are of opinion, however, that the position taken by the defendant calls for an erroneous construction of the collector’s deed. The deed first recites a demand and non-payment of the tax, and that it remained unpaid after the lapse of fourteen days from the time of the demand. This shows a legal cause for a sale, and justifies the advertisement and posting of notices, which is then recited. Gen. Sts. e. 12, §§ 22, 28, 30. The deed then recites the proceedings of the collector in making the sale, and begins by stating that at the time appointed for the sale, the tax not being paid, he adjourned the sale to the tenth day of March 1877, at a certain hour, and on the last-named day again adjourned the sale to the twelfth day of March at the same hour, when he proceeded to sell the land by public auction for the payment of said tax. If we regard the action of the collector on the day originally appointed for the sale, and the subsequent adjournment *281and sale, as one transaction, .constituting together the proceedings of sale, it is plain that the deed recites the non-payment of the tax as the cause of the sale; for it would not he contended that the statute requires the deed to state that the tax was not. paid while the sale was in progress, in addition to the statement that it was unpaid when the sale began. And, if we regard the doings of the collector at the several adjournments as distinct from each other, the statement that the tax had not been paid, occurring at the beginning of the narration of the proceedings of sale, may well be understood as referring to and covering the whole period thereafter to and including the .time when the sale was actually made, when taken in connection with the subsequent statement that the sale was made for the “ discharging and payment of said tax.” To hold that a collector’s deed containing the recitals which are in that under consideration does not show the cause of sale, would be to require of the officer a nicety and precision in the use of language which it is unreasonable to expect. No one reading this deed could fail to understand that the sale was made because the tax remained unpaid after demand for more than fourteen days before the land was advertised, and was still unpaid when the sale was made.

The case differs materially from Harrington v. Worcester, 6 Allen, 576, cited by the defendant. The deed in that case did not state that the tax was not paid within fourteen days after demand, and therefore failed to show any legal cause of sale.

The collector’s deed being valid, it left in the defendant only a right to redeem the land from the tax sale. This right is not an interest which is attachable in an action at law. Gen. Sts. c. 108, § 1. And it being admitted that the plaintiffs are judgment creditors of the defendant, as alleged in their bill, they are entitled to the relief asked for.

Decree for the plaintiffs, with costs.