204 Mass. 594 | Mass. | 1910
The plaintiff as a mortgagee seeks to redeem certain real estate covered by his mortgage from sales for sewer assessments. As the plaintiff does not now attack the validity
Upon these facts the plaintiff was entitled to redeem. Lancy v. Abington Savings Bank, 177 Mass. 431. Clark v. Lancy, 178 Mass. 460. Rogers v. Lynn, 200 Mass. 354. He was a mortgagee, the tax was not assessed to him, and his offer to redeem was within two years after actual notice of the tax sale. R. L. c. 13, § 58, cl. 4, as amended by St. 1905, c. 325, § 1. (See St. 1909, c. 490, Part II. § 59, cl. 4.) That the mortgagee was informed of certain incumbrances in favor of the city and upon inquiry paid all that was said by the tax collector to be due, without inquiring as to the source from which a credit upon the original amount had come, although in truth it came from the tax sale, was not actual notice of the tax sale. Something more than knowledge sufficient to put him upon inquiry is required to satisfy the language of the statute as “ actual notice.” Keith v. Wheeler, 159 Mass. 161. The credit may well have been supposed by him to have been voluntary partial payment by the owner rather than proceeds from the sale. Therefore, although the bill was filed three years and a half after the sale for taxes, it was upon the facts found seasonably brought. O’Callaghan v. Lancy, 187 Mass. 474. In any event, it was brought within five years after the sale, and it would be inequitable not to per
The defendant contends that because no tender was made before the bringing of the bill there is no right to redeem. The master found that the plaintiff made no tender because unable to find the defendant Mahoney, who was the holder of the tax title, and who resided out of the Commonwealth. There is no finding that Mahoney or any of her preceding owners of the tax title filed a certificate in the registry of deeds as required by R. L. c. 13, § 45 (see St. 1909, c. 490, Part II. § 46) setting out her residence and place of business by street and number, or, being a non-resident, the appointment of an agent, with like particulars as to his residence and place of business. In view of the finding of the master that the plaintiff honestly and intelligently endeavored without success to find the owner of the tax title in order to make tender, it is not necessary to determine whether, when there is a failure to comply with the provisions of said section 45, the landowner is under obligation to do anything before bringing his suit to redeem. Under these circumstances, the plaintiff cannot be required to make a tender before bringing a bill to redeem, a necessary part of which is a proffer to pay whatever may be found to be legally due. Perry v. Lancy, 179 Mass. 183. R. L. c. 13, § 60, as amended by St. 1902, c. 443, and St. 1905, c. 325, § 2, (see St. 1909, c. 490, Part II. § 61,) which provides that the person having an interest in land may redeem by making payment to the tax collector, is not an additional requirement upon the landowner, but a convenient cumulative remedy by which he may elect to assert his rights if he chooses. Barry v. Lancy, 179 Mass. 112.
As to the amount which ought to be paid to redeem, the facts are these: The tract of land which the plaintiff seeks to redeem is described as lots 5 and 6 on the Tracey plan. These two lots are part of a larger tract described as lots 152 and 154 on the Whitman and Breck plan. The assessments, by virtue of which the sales by the tax collector were made, were on said lot 152 and on said lot 154. The tax collector made two separate sales and deeds of lot 152 and one of lot 154, each upon a different instalment of assessment, but all to one Welsh, for sums aggre
The defendant holds her deed as security for $350. The redemption of real estate from a tax sale is wholly by statute. The person who seeks to redeem must follow the terms of the statute in order to assert his rights. B. L. c. 13, § 58, as amended by St. 1905, c. 325, § 1 (see St. 1909, c. 490, Part II. § 59) requires the person redeeming to pay “ the original sum ” with interest and other charges.' “ Original sum” as here used means the amount paid at the tax sale. There is no provision for any apportionment of an assessment in* case of a subdivision of a tract of land after a tax sale. The terms of R. L. c. 12, § 88 (see St. 1909, c. 490, Part I. § 88) as to apportionment of taxes are operative only before the real estate has been sold for taxes. That the Legislature has thus taken express measures for the division of a tax in case of a partition of land among owners in severalty after the assessment and before the sale indicates a clear intent that under the law there shall be no other apportionment. The plain language of the statute as to redemption gives the landowner a right to redeem only upon payment of the entire sum
The decrees are to be reversed for modification, in accordance with this opinion, only as to the amount to be paid for redemption, and as to costs if so determined by the Superior Court; and when so modified are to be affirmed.
So ordered.