323 Mass. 242 | Mass. | 1948
The assessors of Boston appeal from a decision of the Appellate Tax Board abating in its entirety a tax for the year 1945 upon the Hotel Buckminster on Beacon Street in that city. G. L. (Ter. Ed.) c. 58A, § 13, as last amended by St. 1939, c. 366, § 1. The tax was assessed to John Hancock Mutual Life Insurance Company, hereinafter called the insurance company, as mortgagee in possession, and was abated as having been invalidly assessed.
The parties have agreed upon the facts. By deed recorded November 1, 1940, Carlton Hotel, Inc., hereinafter called the hotel company, became the owner in fee of the hotel and by deed dated and recorded the same day mortgaged it to the insurance company. On August 5, 1942, the hotel company filed a petition in the District Court of the United States for reorganization under the Chandler act. U. S. C. (1940 ed.) Title 11, c. 10. On August 12, 1942, the insurance company made an open, peaceable, and unopposed entry on the premises for the declared purpose of foreclosing its mortgage for breach of conditions thereof and on the same day recorded a certificate of the entry under G. L. (Ter. Ed.) c. 244, § 2. On August 18, 1942, the District Court of the United States approved the petition of the hotel company and appointed a trustee, and on August 21 approved the trustee’s bond. On September 16, 1942, that court ordered the insurance company to relinquish its possession of the hotel and to desist from foreclosing its mortgage. On March 1, 1943, this order was affirmed by the United States Circuit Court of Appeals, John Hancock Mutual Life Ins. Co. v. Casey, 134 Fed. (2d) 162. See also John Hancock Mutual Life Ins. Co. v. Casey, 139 Fed. (2d) 207. On May 24, 1943, certiorari was denied by the Supreme Court of the United States, 319 U, S. 757. The petition for reorganization was still pending on January 1, 1945. Pursuant to the order of the District Court
The statute governing the assessment is G. L. (Ter. Ed.) c. 59, § 11, as appearing in St. 1939, c. 175. In its material parts the section reads as follows: “Taxes on real estate shall be assessed, in the town where it lies, to the person who is the owner on January first, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, where the estate lies, as owner on January first, even though deceased, shall be held to be the true owner thereof .... Except as provided in the three following sections, mortgagors of real estate shall for the purpose of taxation be deemed the owners until the mortgagee takes possession, after which the mortgagee shall be deemed the owner.” The “three following sections” do not affect the present issue.
It is plain beyond doubt that, under the first sentence óf this section, where an estate is assessed to an “owner” as distinguished from a mortgagee, the assessors, although not obliged to rely upon the state of the local records, are ordinarily justified in doing so, whatever the actual facts may be outside the records, and even if they know facts which show that the title is not in the person assessed. Boston v. Quincy Market Cold Storage & Warehouse Co. 312 Mass. 638, 643, 650. The crux of the case is the question whether the words in the first sentence of the section
The history of this section is examined in Boston v. Quincy Market Cold Storage & Warehouse Co. 312 Mass. 638. That history seems to us to show a tendency toward greater and greater simplicity and certainty in assessments. Moreover, it is not without some significance that the very statute which first made the records conclusive for any purpose, St. 1881, c. 304, § 3, dealt almost entirely with mortgagees who were to be deemed owners.
In the present case the records designated by the statute showed that the insurance company was a mortgagee who had taken “possession” to foreclose in the manner expressly provided in G. L. (Ter. Ed.) c. 244, §§ 1 and 2. Such possession so taken seems to us to be comprehended in the word “possession” as used in the last sentence of G. L. (Ter. Ed.) c. 59, § 11, as amended. In this way the two statutes complement each other. There was nothing whatever on the county records to qualify the decisive facts that the insurance company was a mortgagee and that it had taken possession. An informal fist of bankruptcies voluntarily kept in the registry office by the index commissioners and not by the register would not have been part of the records of the county to which the statute refers, even if it had contained any material information. In our opinion the assessment was valid.
The board in coming to the opposite conclusion relied in part upon Hough v. North Adams, 196 Mass. 290, where this court held that an assessment on the property of one
Petition for abatement dismissed.
It may be significant that Hough v. North Adams was decided in 1907; that the definition of “records” as those of the county or district, first inserted by St. 1889, c. 84, was omitted from the Revised Laws of 1902, c. 12, § 15. and reinserted by a separate act, St. 1902, c. 113, § 1; and that none of these statutes is mentioned in the opinion.