166 Mass. 244 | Mass. | 1896
The plaintiff purchased of the treasurer and collector of taxes of the city of Malden a parcel of land in that city, and received a deed of the same. He seeks to recover back the price paid at the tax sale, together with interest, under the St. of 1888, c. 390, § 44, which provides as follows: “ If it should subsequently appear that, by reason of any error, omission, or informality in any of the proceedings of assessment or sale, the purchaser has no claim upon the property sold, there shall be paid to said purchaser, by the city or town whose collector executed said deed, upon his surrender and discharge of the deed so given, the amount paid by such purchaser, together with interest on the same at the rate of ten per cent per annum,
Section 47 reads thus: “No city or town and no collector or treasurer of a city or town shall, under the provisions of section forty-four, pay or be liable for the amount due upon any deed therein referred to or for any part thereof unless the offer of the holder of such deed contains a specific statement of the reason why such holder has no claim on the estate sold, with the evidence on which he relies; and if such evidence is based upon any public record or upon facts shown in any such record, the statement above required shall contain a specific reference to the particular instrument relied upon.”
The offer in this case states four specific reasons why the holder has no claim upon the estate sold, and also the general reason that there are many errors, omissions, and informalities in the assessment, deed, and sale of the property. ■ Reference is made, for evidence of the statements in the offer, “ to the deed herein specified, to the record, valuation, assessment, and collector’s warrant of the said city of Malden, from the assessment of taxes upon said estate to the sale of said estate for the nonpayment thereof, and also to competent witnesses.”
We need not consider the general ground stated, as it is clearly too vague to be a compliance with the statute.
The first three reasons proceed upon the theory that a demand should have been made upon the owner of the land at the time the assessment was made. But by the St. of 1889, c. 334, § 4, it is provided that “ no demand need be made of a non-resident owner of real estate.” The deed sets forth that the owner of the estate at the time of the assessment was a non-resident in Malden. No demand upon him was therefore necessary.
The fourth reason given for the offer is this: “ Because there was no lawful valuation and assessment of said tax on said estate.” Section 47, above cited, requires “a specific statement of the reason,” and there must be “a specific reference to the particular instrument relied upon.” Whether a general state-
It cannot therefore be said that, if the former owner of the land was assessed for more than he should have been, “ the purchaser has no claim upon the property sold.”
This view of the case renders it unnecessary to determine whether the words in the agreed facts, “ the whole tax being $105,” mean that the whole expense, one half of which was to be assessed to the abutter, amounted to $105, as contended by the plaintiff, or whether they mean, as the defendant contends, one half of the expense of the sidewalk.
Judgment for the defendant affirmed.