209 Mass. 111 | Mass. | 1911
These are actions under St. 1909, c. 490, Part II. § 45, (formerly it. L. c. 13, § 44,) to recover money paid for tax deeds which, it is claimed, by reason of error, omissions or informality in the sales, conveyed no title.
1. The form of tax deed used in several sales was that prescribed in St. 1901, c. 519. This form was in the law less than six months, having been repealed by R. L. c. 227, and supplanted by No. 14 of Schedule of Forms attached to R. L. c. 13, § 87, now St. 1909, c. 490, Part II. § 89, No. 14. The question is whether this form employed since 1902, was “suitable ” under R. L. c. 13, § 87, (now St. 1909, c. 490, Part II. § 89.) The fact that the Legislature permitted its use for a brief period, and then in substance restored important recitals-which had existed in earlier statutes, does not necessarEy make it a suitable form for any other time than that during which it was expressly authorized. The requirements of law as to a tax sale were the same both before and after 1901.
A tax deed in order to be valid as a suitable instrument of conveyance, when not in the language of the statute, must set out either in precise phrase or by fair intendment to a reasonable certainty a statement of performance of aE these acts which are essential to the existence of a legal cause for selling at the time when the sale was made. Although the terms of a tax deed
(a) The newspapers in which the notices of sale were printed were described by name as the “Lowell Sun,” “Lowell Daily Telegram,” and “ L’Etoile ” without any further assertion as to the place of publication than that it was “ in the county where said real estate lies.” Although there is no statement in the deed of the city or town within which the real estate lies, it may fairly be inferred from the circumstance that the deed was headed “ Commonwealth of Massachusetts,” that the “ Lowell Sun” and the “Lowell Daily Telegram” were published in Lowell in this Commonwealth. Newspapers sometimes bear as a part of their title the name of a small country town, although not published there, (Rose v. Fall River Five Cents Savings Bank, 165 Mass. 273, Brown v. Wentworth, 181 Mass. 49,) but no one reading these deeds would have any reasonable doubt as to the fact that these newspapers were published in the city of Lowell. This is not true of the newspaper called “ L’Etoile.” There is nothing about this name to indicate the place of its publication. Although the words of the statute reach only to “ the name of the newspaper,” yet in order to show the existence of a legal
(b) R. L. c. 13, § 40, (now St. 1909, c. 490, Part II. § 41,) provides that the notice of sale shall be posted “ in some convenient and public place.” The deeds recite such posting “ in city hall, a public place in said Lowell.” It is not every public place which would be “ convenient ” for putting up notices of tax sales. City halls as matter of common knowledge are used generally for such purposes. Halls of this character exist in all municipalities, and the statement in a tax deed, that such a place is convenient for this use, affects no right of the person assessed or of the purchaser, and can add nothing to their knowledge. Under these circumstances failure to follow the prescribed form was not fatal. A quite different case would arise if the public place described was not one commonly known to be convenient for such purposes.
(c) It was a condition precedent to the right of the tax collector to sell that the advertisement should contain “ the names of all owners known to the collector.” R. L. c. 13, § 38, (now St. 1909, c. 490, Part II. § 39.) Omission of those names from the advertisement would deprive the collector of any cause for making the sale. All the statutory forms save that in St. 1901, c. 519, require a statement that the advertisement contained the name of the owner of the land. Without such a statement the deed in an essential particular, not fairly inferable from other parts of the instrument, fails to show the existence of a cause for sale.
(d) The narration of the terms of the advertisement set out in the deed was that the sale would be for “ non-payment ” of taxes, while form No. 14 was in the words that the sale would be for the “ discharge and payment ” of the tax. The statement in the deed was supplemental as to cause, while that in the form indicates the purpose of the sale. It is plain from the deed that the only purpose of the sale was to satisfy the tax. In this regard no substantial error appears.
(e) R. L. c. 13, § 38, (now St. 1909, c. 490, Part II. § 39,) requires that the published notice of the sale shall “contain a substantially accurate description of the several rights, lots, or divisions of the land to be sold,” while by § 41, (now St. 1909, c. 490, Part II. § 42,) the collector must sell “ the smallest undivided part of the land which will satisfy the taxes and neces
All sales in which this form was used were invalid. It is not necessary to determine whether these deeds were also invalid in not containing enough to warrant a fair inference as to the municipality within which the land conveyed was situated.
2. Certain lands were properly assessed to the “ Heirs of George T. Woodward” and to the “Heirs of Irene E. Richardson,” under R. L. c. 12, § 21, (now St. 1909, c. 490, Part I. § 21.) In these instances the records of the Probate Court for the county, in which Lowell is located, showed on the first of May of the year in which the taxes were assessed
3. The advertisement of sale in several instances was printed in English in a newspaper printed in the French language. R. L. c. 13, § 1, (now St. 1909, c. 490, Part II. § 1,) provides that “ Publications, as applied to any notice, advertisement or other instrument, the publication of which is required by law, shall mean the act of printing it ... in a newspaper published in the city or town, if any, otherwise in the county, where the land ... is situated.” English is the language of this country. This conception is fundamental in the administration of all public affairs. It is an elemental truth, so axiomatic in its nature as to need no supporting authority. It is not declared in the Constitution nor enacted by statute. It is so by the universal customs of our past in Colony, Province and Commonwealth. Apart from the more obvious considerations, there are indications that the English language is that of- our institutions in the requirement that no one can be a voter or eligible to office unless able to read the Constitution in English (art. 20 of the Amendments to the Constitution), nor solemnize marriage unless able to read and write in that language. R. L. c. 151, § 30. Instruction in the English language is required in all public and private schools. R. L. c. 42, § 1; c. 44, § 2. It is plain that a general public notice required by law to be published in a newspaper must be printed in English in an English newspaper. The great weight of authority supports this view. Auditor General v. Hutchinson, 113 Mich. 245, 249. State v. Chamberlain, 99 Wis. 503. Chicago v. McCoy, 136 Ill. 344, 349. Graham v. King, 50 Mo. 22. Road in Upper Hanover, 44 Penn. St. 277. Wilson v. Trenton, 27 Vroom, 469. North Baptist Church v. Orange, 25 Vroom, 111. Publishing Co. v. Jersey City, 25 Vroom, 437. John v. Connell, 71 Neb. 10, 16. Cincinnati v. Bickett, 26 Ohio St. 49. There are decisions having a contrary appearance in Richardson v. Tobin, 45 Cal. 30, Loze v. Mayor & Aldermen of New Orleans, 2 La. 427, and Kernitz v. Long Island City, 50 Hun, 428. So far as they are in conflict
4. Certain lots of land not of the character indicated in St. 1909, c. 490, Part II. § 50, (formerly R. L. c. 13, § 49,) are described in the deeds by lot numbers, the street and side of street on which located, and the name of all abutting owners, with the general points of compass on which the land of abutting owners lay, but without further designation by metes and bounds, and without reference to any plan upon which the lot as numbered may be found. A sample description of this kind was “ three thousand seven hundred fifty-five (3755) sq. feet of land, more or less, being lots 549-550 on the east side of Tanner Street with land now or formerly of Woonsocket Institution for Savings on the north and south, Merchants Street on the east, and Tanner Street on the west.” While this description reached nearly to the line of indefiniteness, it is on the whole sufficient. It gives data enough to enable one to make a reasonable identification of the property. It indicates a parcel of specified area, rectangular shape, lying between two streets and between lots of other defined owners, presumably a portion of a large tract subdivided into smaller parts. Practically the same information is conveyed in the instances when the rear of the lots bound, not upon a street, but upon another named owner. As matter of common knowledge it is a kind of description not infrequently found in deeds, especially of land in the country. To require a greater particularity would impose upon the tax collector the necessity of an expensive survey in many cases. While the descriptions in a tax advertisement must be such as to enable both owner and bidder from its terms to locate with substantial certainty the land to be sold, it need not be so detailed as to point out visually its precise boundaries so that an utter stranger unacquainted with the locality and ignorant of the neighbors could find it without inquiry. Applying the rule laid down in Williams v. Bowers, 197 Mass. 565, 567, and the numerous cases there cited, and bearing in mind that one executing only a statutory power in the sale of land must be held to some strictness, the conclusion follows that there is no invalidity in the deeds of this class.
6. An assessment of land was made to a person not in possession hut holding a tax collector’s deed thereof, valid on its face and duly recorded, who had failed by inadvertence to file in the registry of deeds or with the city treasurer the statement of his residence and place of business required by R. L. c. 13, § 45, (now St. 1909, c. 490, Part II. § 46.) This section is chiefly for the benefit of the owner in furnishing him information as to where to find the person to whom he may make tender for purpose of redeeming. He has, however, the alternative or cumulative right to make payment to the tax collector. St. 1902, c. 443, (now St. 1909, c. 490, Part II. §§ 61, 62.) It is not necessary to decide what effect, upon the rights and obligations between themselves of one entitled to redeem and one holding a tax title, the failure of the latter to comply with said § 45 may have. The tax law contains no provision that omission to record such certificate shall render the sale invalid, as it does respecting the time within which the deed shall be recorded. R. L. c. 13, § 43, (now, with subsequent amendments, St. 1909, c. 490, Part II. § 44.) The thing required by said § 45 can be done only subsequent to the record of the tax deed. Its substance does not relate to any matter inherently affecting the title, but solely to facilitating the ease of redemption. As a general rule assessors in levying subsequent assessments and-the tax collector in selling thereunder may treat the holder of a duly recorded tax deed valid oñ its face as the record owner. Rogers v. Lynn, 200 Mass. 354. Solis v. Williams, 205 Mass. 350, 353. The purposes of the requirements of said § 45 do not appear to include an obligar tion upon the assessors to make a further examination of the record, beyond finding a duly recorded valid looking tax deed, to ascertain whether the holder has recorded also the necessary certificate and to determine-at their peril the sufficiency of its
7. Certain deeds now challenged were made on sales of real estate not within the terms of R. L. c. 13, § 49, (now St. 1909, c. 490, Part II. § 50,) assessed to persons as owners whose title was under tax deeds, in each of which the land was described only by its area in square feet, more or less, the street and side thereof on which it was located, and the number of the lot without reference to any plan. In fact, there was a private plan on record at the registry of deeds and a plan at the office of the city engineer, on which the several lots could be sufficiently identified. This description was insufficient. It differs from those discussed under paragraphs 4 and 5 of this opinion, in that the names of no abutting owners were given, nor was there anything to show the shape of the parcel. The designation of it by a lot number without naming the plan or showing where it might be found or giving any other descriptive circumstance was too indefinite. The tax deed was also in the form held insufficient in an earlier part of this opinion. These deeds were therefore invalid on their face and on inspection show that they convey no title. The question is whether one holding under such a deed invalid on its face “is a person appearing of record as owner ” within the meaning of those words in R. L. c. 12, § 15. (See St. 1909, c. 490, Part I. § 15.) The rule established by Butler v. Stark, 139 Mass. 19, that the holder of a tax deed was such a record owner has been applied in Roberts v. Welsh, 192 Mass. 278, and Welsh v. Briggs, 204 Mass. 540, 552, to cases where the tax deeds, good on their face, were invalid by reason of some error in the original assessment or otherwise, not apparent upon an examination of the deed itself. But the rule has never been extended to a case where the tax deed showed on its face that it conveyed no title. A tax deed stands or falls on its own unaided merits. It must be delivered and recorded within thirty days from the sale. Its worth is to be determined as of that date. It cannot be supplemented or changed by subsequent
These determinations dispose of all the deeds in question and it is not necessary to discuss the other points argued.
The result is that the judgments entered in the Superior Court in the actions in which Dennis E. Conners and Joseph Walsh are the plaintiffs are affirmed. The judgment in the action, in which Edward F. Conners is the plaintiff, is reversed.
iSo ordered.
The collector’s deeds stated that the taxes referred to were assessed for the year 1907, and that the demands for their payment above described were made on March 11, 1909.