315 Mass. 572 | Mass. | 1944
This is a petition to the Land Court under G. L. (Ter. Ed.) c. 60, § 65, as amended by St. 1933, c. 325, § 12, and St. 1938, c. 305, by the holder of a tax title, for the foreclosure of all rights of redemption. The respondents answered, as provided in G. L. (Ter. Ed.) c. 60, § 68, as amended by St. 1935, c. 224, § 3; c. 354, § 1; and c. 414, § 3, making no question of the validity of the tax title but seeking to redeem. The petitioner acquired its tax title on June 7, 1933, at a tax sale for nonpayment of the taxes for 1931.
Prior to 1915 an owner of land taken by, or sold to, a municipality, or sold to a private purchaser, for nonpayment of taxes, had two years in which to redeem by payment or tender. If he did not redeem, the tax title became absolute. St. 1909, c. 490, Part II, §§ 59-70. Under that system a strict compliance with the statutes was held essential to the validity of a tax title. Charland v. Home for Aged Women, 204 Mass. 563, 567. Shurtleff v. Potter, 206 Mass. 286. Nevertheless much hardship to landowners resulted.
By St. 1915, c. 237, the system was changed. The right to redeem was made to continue until foreclosed by decree of court upon a petition filed after the expiration of two years. By § 7, after such a petition, any person claiming an interest in the land might answer, offering to redeem, and the court might allow redemption. If there was no redemption, a decree might be entered that would “forever bar all rights of redemptión.” § 8. That statute, slightly amended, became G. L. (Ter. Ed.) c. 60, §§ 64-75. Later amendments do not change the general nature of the system. Because of its more liberal and equitable provisions for redemption, as compared with the earlier system, the statute of 1915 provided in § 17 that “No tax title shall be held to be invalid by reason of any errors or irregularities
In 1918, in the case of Chadwick v. Cambridge, 230 Mass. 580, it was held that a city or town purchasing or taking land for nonpayment of taxes took title subject to the paramount lien for taxes subsequently assessed and subject to any tax title subsequently acquired upon a sale for nonpayment of such taxes. The Legislature then enacted St. 1919, c. 263, which provided that in such case the city or town need not sell for nonpayment of taxes subsequently assessed, but that on redemption payment of such subsequent taxes shall be “made a part of the terms of redemption.” That statute became G. L. (Ter. Ed.) c. 60, § 61. By St. 1933, c. 325, § 9, the following words were added: “except that if any of the said subsequent taxes have not been certified by the collector to the treasurer to be added to the tax title account, then redemption may be made by payment only of the amount of the tax for which the estate was purchased or taken and of such subsequent taxes as shall have been so certified, together with costs and interest.” Plainly certification at some time was made essential to the collection on redemption of a subsequent tax.
The statute of 1933 continued as follows: “The collector shall certify to the treasurer on September first of the year following that of their assessment all subsequent taxes which become part of the terms of redemption and the treasurer shall give him a certificate stating that the amount or amounts have been added to the tax title account or accounts and the collector shall be credited as if the tax had been paid in money.” By St. 1934, c. 48, the foregoing words, “on September first,” were made to read, “not later than September first.” A further amendment by St. 1936, c. 93, § 1, is immaterial.
In Boston v. Cable, 306 Mass. 124, it was held that unless the collector certified to the treasurer a subsequent tax within the time specified, the city or town is not entitled to payment of it upon redemption. After that decision, G. L. (Ter. Ed.) c. 60, § 37, was amended so as to read, “No tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading, whether such error or irregularity occurs in the proceedings of the collector or the assessors or in the proceedings of any other official or officials charged with duties in connection with the establishment of such tax title or the inclusion of. such item in the tax title account.” St. 1941, c. 84; St. 1943, c. 478, § 1. Those amending statutes were enacted after the present case arose.
We are asked to re-examine the law laid down in the Cable case, and to hold the requirement of certification “not later than September first” to be merely directory. Until redemption or foreclosure is sought, the taxpayer has little or no concern with the question in which office the amount of subsequent taxes is to be ascertained. Before the amendment of 1934, a single day was provided for certification. It is hard to believe that the Legislature intended to stake the collectibility on redemption of many thousands of dollars of taxes upon the chance that a collector, with his manifold duties and perhaps with inadequate assistance, would succeed in certifying all taxes within the limits of the office hours of a single day. Though the present statute gives him more freedom, its nature and purpose remain the same.
The treasurer of a municipality is the custodian of tax
The purpose of requiring certification on or before a particular day is, we think, to fix a time when the responsibility of the collector ends and that of the treasurer begins. With that matter a taxpayer has little or no concern. His interests are sufficiently protected by the provision that on redemption he need not pay subsequent taxes that have never been certified.
In the Cable case reliance was placed upon the indisputable fact that the statutory language as to the time of certification is mandatory rather than permissive. Brennan v. Election Commissioners of Boston, 310 Mass. 784. Boston v. Quincy Market Cold Storage & Warehouse Co. 312 Mass. 638, 646, 647. That seems to us beside the point. In this connection the word “mandatory” has been used ambiguously and misleadingly, at times as opposed to “permissive,” and at other times as opposed to “directory.” The real question is whether the Legislature intended that there should be read into the statute an unexpressed provision that if certification should not be timely, the tax should be uncollectible on redemption. Beckford v. Needham, 199 Mass. 369, 370, 371. In the decisions relied on in the Cable case, the statutory requirement was intended for the bene
We think that the statutory provision fixing the time for certification .is merely directory, and that compliance with it is not essential to the validity of certification. The rigidity of the Cable case ill comports with the liberal trend of statutes and decisions that began with St. 1915, c. 237. The case of Boston v. Cable, 306 Mass. 124, is now overruled.
The respondents contend that the form of certification for most of the years subsequent to 1931 was such as to destroy its validity. Before St. 1933, c. 168, § 3, forms were prescribed for use in proceedings for the collection of taxes, and if "substantially followed” they were to be "deemed sufficient,” though "other suitable forms” might
No other question is open on this record. The decision of the Land Court is reversed. The payment not only of the tax sale price, with interest, costs and charges, but also of all the subsequent taxes for the years 1932 to 1939, inclusive, with interest, costs and charges, is to be made part of the terms of redemption. The matter of payment of the taxes of still later years is to be decided by the Land Court. The petitioner is to have costs in the Land Court, and also costs of this appeal.
So ordered.
Cheney v. Coughlin, 201 Mass. 204, 211, and cases cited. Commonwealth v. Boston & Lowell Railroad, 12 Cush. 254, 255. Whittier v. Way, 6 Allen, 288, 291, 292. Field v. Gooding, 106 Mass. 310, 313. Kelso v. Boston, 120 Mass. 297, 299. Fanning v. Commonwealth, 120 Mass. 388. Westhampton v. Searle, 127 Mass. 502, 506, 507. Hicks v. Westport, 130 Mass. 478, 479. Noyes v. Hale, 137 Mass. 266, 270, 271. Dickinson v. City Council of Worcester, 138 Mass. 555, 560, 561. Bowditch v. New England Mutual Life Ins. Co. 141 Mass. 292. Bemis v. Caldwell, 143 Mass. 299. Lowell v. County Commissioners of Middlesex, 152 Mass. 372, 386. Russell v. Wellington, 157 Mass. 100, 105. Clemens Electrical Manuf. Co. v. Walton, 168 Mass. 304. Roberts v. Welsh, 192 Mass. 278, 280. Beckford v. Needham, 199 Mass. 369. Rutter v. White, 204 Mass. 59. Pevey v. Aylward, 205 Mass. 102, 103. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 69, 70. Commonwealth v. Mekelburg, 235 Mass. 383, 385. Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 280. Bath Iron Works, Ltd. v. Savage, 262 Mass. 123, 127. Commonwealth v. Kossowan, 265 Mass. 436, 438. Ellis v. Lyford, 270 Mass. 96, 100. Commonwealth v. Vallarelli, 273 Mass. 240, 249. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276, et seq. Clancy v. Wallace, 288 Mass. 557, 565, 566. Fall River v. Conanicut Mills, 294 Mass. 98, 100.