Bertram v. Wilbur

246 Mass. 377 | Mass. | 1923

Braley, J.

The deed of the collector of taxes under which Wilbur, who has entered into possession, claims title to the premises described in the bill of complaint was invalid. The assessments to the George Blanchard heirs who appeared of record as owners of the property, was lawfully levied. But, while the deed recites that demand for payment was made on them, the statute then in force required the collector to state the “ name of the person on whom the demand . . . was made.” St. 1909, c. 490, Part II, §§ 14, 44. Conners v. Lowell, 209 Mass. 111, 118. The ruling of the presiding judge that the deed was fatally defective was right.

The deed having been recorded, the title of Bertram, who claimed to be the owner of the property, was clouded, and he asks in his bill that Wilbur be ordered to release all his right, title and interest derived from the conveyance of the collector. Smith, v. Smith, 150 Mass. 73. Sawyer v. Cook, 188 Mass. 163, 170. The bill is not a bill to redeem from a valid tax sale, and the statute limiting such suits to six years from the date of sale, on which the defendant relies in his answer, is inoperative. St. 1909, c. 490, Part II, § 76. Smith v. Smith, 150 Mass. 73. Barker v. Mackay, 168 Mass. 76, 79.

The defence of loches, although not pleaded, is also urged. But assuming that this defence is open, the suit in which the defendant entered a general appearance having been begun within six years after the plaintiff discovered the invalidity of the sale, no unreasonable delay is shown. Sunter v. Sunter, 190 Mass. 449, 456. Steward v. Joyce, 201 Mass. 301, 307, 308. Britton v. Goodman, 235 Mass. 471. Paige v. Sinclair, 237 Mass. 482.

The plaintiff derives his alleged title from the foreclosure by Emily Bertram of a mortgage which was outstanding of record when the assessments and sale were made. It is contended by the defendant that the mortgage, on which no payment of principal or interest had apparently been made during the twenty years elapsing between its date and when it was assigned to Emily Bertram, is unenforceable and that the plaintiff has failed to establish his ownership. But there is no evidence that the mortgagors or those claiming under them remained in continued possession without any acknowledgement of the mortgage, for twenty years after the debt became due and payable. If such circumstances had been shown they would not have been conclusive that the debt had been paid. The presumption could be overcome by proof of circumstances tending to show that no payment had been made. Kellogg v. Dickinson, 147 Mass. 432, 437. Jenkins v. Andover Theological Seminary, 205 Mass. 376, 379. The note and mortgage at the time of the assignment were in possession of the mortgagee, who received the full amount of the principal with accrued interest. It was considered by him as a living obligation which had been recognized by the mortgagors in their second mortgage to him some three years later, and, in the absence of any proof to the contrary except the mere efflux of time, we cannot say as matter of law that there was no evidence which warranted the judge in finding that the mortgage had not been discharged and that the plaintiff obtained a good title by foreclosure sale. Ayres v. Waite, 10 Cush. 72, 76; Kellogg v. Dickinson, supra. See Inches v. Leonard, 12 Mass. 379, 380.

A full examination of the exceptions in so far as argued reveals no error of law, and they should be overruled.

So ordered.