309 Mass. 165 | Mass. | 1941
This is a petition to foreclose all rights of redemption under a tax title acquired by the petitioner in 1930 for the nonpayment of taxes for the year 1929, including a street sprinkling tax, on land situated on the north side of Middlesex Street (numbered "325 [sí"c]-357 ”) in the city of Lowell. The judge ruled that the tax title was valid, and continued the case for further hearing on the matter of redemption. The case comes before us on the exceptions of the respondent Lowell Building Corporation to the rulings and decision of the judge.
On May 10, 1916, the premises in question were conveyed by one Dooley to William H. Burgess and Howard W. Lang in trust, for the benefit of a trust that was being formed. On May 18, 1916, Burgess and Lang executed a declaration of trust which was duly recorded. The instrument provided that "The trustees shall be designated so far as practicable as the ' Lowell Building Trust ’ and - so far as practicable shall conduct all business and execute all instruments in writing in the performance of their trust, thus: Lowell Building Trust By Trustees . . . [followed by a reference to the agreement and declaration of trust, its date and place of record] but not individually.” On April 1, 1929, the trustees were Arthur H. Wellman, Clarence L. Tower and B. Devereaux Barker.
The present petition was filed on May 26, 1933. On November 15, 1933, a mortgage on the premises involved was foreclosed by sale to the respondent Lowell Building Corporation, hereinafter referred to as the respondent. On April 16, 1929, the city council of Lowell ordered that the superintendent of streets consider the sprinkling and oiling of streets and report to the council. Without the making of any report, sprinkling work was done for the city by a contractor during the months of June, July and August, 1929. A list of streets upon which sprinkling had been done, together with the linear frontage of the abutters
On September 3, 1929, acting under the authority of G. L. c. 40, §§ 16, 17,18, the city council adopted an order, which was approved by the mayor on September 9, 1929, authorizing the sprinkling or oiling of certain streets, including the street on which the premises in question were located. The order determined the expense of the work as $473.48 and the rate as seven cents,per linear foot of frontage, and directed the assessors to assess the cost and expense of the sprinkling to the abutters as a tax, and to include the assessment in the tax list and warrant committed by them to the collector for the municipal year of 1929, in accordance with § 18, and that the assessment be included in the annual tax bill for that year. When the street sprinkling list was filed with the assessors, the premises were described as “Lowell Building Trust; Land: 323 [sic]-357 Middlesex Street . . . Rate per linear foot, 7¡£; foot frontage 199; Assessment $13.93.” In fact the actual frontage of the premises was 198.74 feet, and the assessment should have been $13.91. The assessors checked the list as to the actual owners and posted the amount due in the commitment list, which agreed with the valuation book. As of April 1, 1929, the assessors assessed the locus, the tax being $9,913.04 which they committed to the city treasurer and collector of taxes on September 11, 1929, including in the commitment an additional amount of $13.93 for the sprinkling assessment, making a total of $9,926.97. The tax was not paid, and on April 10, 1930, the city treasurer and collector of taxes (hereinafter referred to as the collector) made a demand by mail, postage prepaid, for payment thereof on the Lowell Building Trust, which demand was received. The real estate assessment appears in the valuation book, an assessors’ record, the entries being as follows: “Lowell Building Trust Bill 150 Congress St — Clarence H. Tower, Boston, Mass. Arthur H. Wellman & B. Devereaux Barker Trs.” The premises were advertised for sale for nonpayment of the 1929 tax and street sprinkling assessment, the locus being described as “325 [sic]-
The respondent made seven requests for rulings which were as follows: “1. That the order of the city council adopted September 3, 1929, authorized street sprinkling to be done in the future. 2. That the street sprinkling done prior to the city council order of September 3, 1929, could not be the basis of the street sprinkling assessment. 3. That the street sprinkling assessment of $13.93 was improper. 4. That the street sprinkling assessment of $13.93 was improperly made. 5. That the tax lien of the petitioner is invalid because of the invalid street sprinkling as-' sessment. 6. That the tax lien of the petitioner is invalid because of improper assessment. 7. That the tax lien of the petitioner is invalid because the deed was not properly delivered to the city treasurer after being recorded.” These requests were denied by the judge because “either contrary to the facts found by . . . [him], unnecessary or inapplicable.” In his decision the judge found that the assessment of the taxes was to the trustees and not to the “Lowell Building Trust”; that the real estate assessment for 1929 was valid; that the interest computed thereon was correct; that the fact that the tax deed was not returned from the registry of deeds to the collector or deposited with the treasurer within thirty
The first ground upon which the respondent bases its contention that the street sprinkling assessment was invalid is that the order of the city council under G. L. c. 40, §§ 16-18, authorizing the sprinkling of streets and assessment of the cost to abutters was not adopted until after the work had been done in 1929. But even if it be assumed that there was irregularity in the performance of the street sprinkling work prior to the adoption of the order of September 3 by the city council, we are of opinion that the language of the order taken in connection with the list of streets appended thereto, together with a determination of the expense of the work as $473.48 and the assessment rate as seven cents per linear foot of frontage, may properly be held to have been a ratification of the work previously done, and a subsequent ratification is the equivalent of original authority. Emerson v. Newbury, 13 Pick. 377, 379. Crawshaw v. Roxbury, 7 Gray, 374, 377. May v. Gloucester, 174 Mass. 583, 585. After the adoption of the order by the city council and before assessing the tax the assessors had in their office the details for the assessment and assessed the tax accordingly. We think that the irregularity under discussion was not sufficient to render the assessment invalid. See Sears v. Aldermen of Boston, 173 Mass. 71, 80; Corcoran v. Aldermen of Cambridge, 199 Mass. 5, 14.
The second ground put forward by the respondent in support of its contention that the street sprinkling assessment was invalid is that the amount of the tax was incor
The third ground of attack by the respondent is that the street sprinkling tax was assessed improperly to the “Lowell Building Trust” instead of to the trustees. Since the same contention is made with reference to the real estate tax, we deal with these contentions together.
Volume H to L of the valuation books, an assessment record, of the city was introduced in evidence. The book contains, among others, two columns, “one headed 'names’ under which the names of the persons assessed are entered, and the other headed 'residences’ under which are entered the addresses of the persons assessed. The . . . collector’s commitment book is a copy of the valuation book.” The real estate assessment appears on page 87 of the valuation book (volume H to L), the entries being as follows:
“Lowell Building Trust Bill 150 Congress St —
Clarence H. Tower, Boston, Mass.
Arthur H. Wellman & B. Devereaux Barker Trs.”
There was evidence that the word “bill” as thus appearing meant “send bill to.” The coupon of the 1929 real estate tax bill read “Lowell Bld’g Trust,” but the chief clerk of the assessors’ office testified that it did not follow “that the bill was made out the same way.” The entry of the street sprinkling assessment, so far as material to the question now under consideration, reads: “Name ■— Lowell Building Trust. Residence —150 Congress St., Boston, Mass. . . .” In the affidavit of the collector as to his proceedings prior to the tax sale, he certified that he served demand upon the “Lowell Building Trust.” With reference to the real estate tax the judge ruled that the assessment must be made to the trustees, and found that “A careful perusal of the entries in question giving due consideration to the words as written, the punctuation, the spacing, together with their position in the columns in the valuation book . . . leads ... to the inescapable conclusion that the assessment was to the trustees . . . within the provisions of” G. L. c. 59, § 11, which provided, so far as material, that the assessment should “be assessed ... to the person who is . . . the owner . . . thereof on April first.” (See now G. L. [Ter. Ed.] c. 59, § 11, as amended by St. 1933, c. 254, § 29; St. 1936, c. 92; St. 1939, c. 175.) The judge ruled that the assessment of the real estate tax was valid.
Under G. L. c. 59, § 44, in force in 1929, it was provided that, “The list shall exhibit the valuation and assessment of the polls and estates of the inhabitants assessed; and the valuation and assessment of the estates of non-resident owners, and shall contain the names of the non-resident owners of the property assessed, or such description of them as can be given, their places of abode, if known, the description of their estate, the true value of such estate, and the tax thereon.” Manifestly in the instant case the names of the true owners and their description as trustees were set
With respect to the respondent’s contention that the street sprinkling assessment was made to the Lowell Building Trust and so was not valid; the judge found that “while the entry on the street sprinkling list for the year 1929 shows only the name of the Lowell Building Trust and not the name of the trustees . . . the actual assessment was made in the same manner as the real estate tax for 1929” and ruled that it was properly assessed. There was no error of law in this ruling. Under G. L. c. 40, § 18, it was provided that the assessment for street sprinkling “shall be a lien upon the estate, and shall be levied, collected, reassessed . . . and shall be a part of, the tax for that year on such estate.” We have already pointed out that the evidence discloses that the list filed with the assessors containing the names of the abutters to whom the sprinkling tax was to be assessed was checked by the assessors as to the “actual owners” and that the amount due was posted in the commitment list which agreed with the valuation list, in which
The remaining contention of the respondent is that the provisions of G. L. c. 60, § 48 as amended by St. 1927, c. 126, § 1 (then in force), were not complied with since the tax deed was not returned to the treasurer within thirty days after the purchase at the tax sale by the petitioner. The evidence discloses that the tax title was purchased by the collector for the city on August 21, 1930. The deed, dated August 30, 1930, was recorded at the proper registry of deeds on September 5, 1930, and was returned by the registry to the collector on January 6, 1931. Under § 48, as amended, the duty of recording the deed “within thirty days after the purchase”
What we have said disposes of all of the exceptions argued by the respondent. The entry will be
Exceptions overruled.
Now sixty days by St. 1933, e. 325, § 5.