307 Mass. 391 | Mass. | 1940
The town of Randolph acquired a tax title in September, 1933, for the nonpayment of the taxes, assessed for 1931, upon certain premises owned by one Atherton, and upon which there was a mortgage held by Mary A. Dillon. The town filed a petition in the Land Court on November 14, 1938, to foreclose all rights of redemption under the tax title, upon which, after notice was given to the owner and to the administrator of the estate of the mortgagee, a decree in favor of the town was entered on February 15, 1939. The petitioner, Genevieve E. Bucher, the holder since February 24, 1936, of the mortgage given to Mary A. Dillon, filed the present petition on September 6, 1939, in the Land Court, to vacate the decree granted to the town, alleging that she had received no notice of the proceedings brought by the town. She appealed from a decree dismissing her petition upon all the evidence.
The failure of the examiner of the Land Court to discover that the mortgage had been assigned to the petitioner when he made his first report because he did not examine the probate records in the estate of Mary A. Dillon is not decisive upon the facts appearing in the decision. The judge found that those probate records did not alone show that the mortgage mentioned was the mortgage in question. The petitioner had been definitely advised that the town would
The granting of the petition to vacate the decree rested largely but not entirely in the discretion of the trial judge. Russell v. Foley, 278 Mass. 145. Odde v. Field, 297 Mass. 167. The petitioner could refrain from recording the assignment, but she ought not to have the decree vacated and the case reopened when she knew that a petition was to be filed and when she and Dillon knew or ought to have known that a proceeding had been brought and she then failed to record the assignment or to appear in that proceeding. She cannot justly seek relief from consequences which directly resulted from a deliberate course of action in a persistent attempt to conceal the ownership of the mortgage. No extenuating circumstances are disclosed by the record. Moreover, the foreclosure of a tax title now held for more than seven years by the town ought not to be further delayed except for a cause, shown to have been seasonably urged, and of sufficient strength to warrant relief in order to prevent a manifest injustice. The examiner was required to make “an examination of the title sufficient only to determine the persons who may be interested in the same,” G. L. (Ter. Ed.) c. 60, § 66, as amended by St. 1935, c. 224, § 1, and the finding in substance and effect that, in making his first examination of the title, he complied with the statute in so far as it is a finding of fact cannot be reversed, Springfield v. Arcade Malleable Iron Co. 285 Mass. 154; Bacon v. Kenneson, 290 Mass. 14; and in so far as it is a mixed question of law and of fact, it must stand, as it is not shown to be vitiated by any error of law. Wood v. Baldwin, 259 Mass. 499. Erickson v. Ames, 264 Mass. 436. The petition to foreclose the tax title was in the nature of a proceeding in rem, Tyler v. Court of Registration, 175 Mass. 71, and it was for the Legislature to deter
The general finding against the petitiotier imports the finding of all subsidiary facts consistent with that conclusion of which the evidence was susceptible not inconsistent with the facts actually found or with rulings of law. Adams v. Dick, 226 Mass. 46. Gottman v. Jeffrey-Nichols Co. 268 Mass. 10, 12. It has not been shown that there was any abuse of sound judicial discretion in dismissing the petition. No error of law appears upon the record. Silverstein v. Daniel Russell Boiler Works, Inc. 268 Mass. 424. Mellet v. Swan, 269 Mass. 173. Beserosky v. Mason, 269 Mass. 325. Alpert v. Mercury Publishing Co. 272 Mass. 43. Manzi v. Carlson, 278 Mass. 267. Kravetz v. Lipofsky, 294 Mass. 80.
Decision affirmed.