296 Mass. 524 | Mass. | 1937
This is a writ of entry to recover possession of a parcel of land, with buildings and improvements thereon, situated in Bellingham. The demandant claims a right to possession of the premises described in the writ, under a deed to him from the town of Bellingham. The tenants are husband and wife. They each filed a plea of nul disseisin. In addition they allege that the deed under which the demandant claims title is invalid because it was executed by the town treasurer without proper authority, and that at the meeting of the board of selectmen on March 23, 1936, there was no action taken by the board on the sale of the premises to the demandant. The husband disclaims any interest in the land other than “curtesy rights,” but
The legal title to the land which is the subject of this action had belonged to the tenant wife, Annie E. Ambler. The title to it had been acquired by the town of Belling-ham by a tax sale deed dated August 18, 1932, and the tenants' right of redemption had been foreclosed by proceedings in the Land Court under G. L. (Ter. Ed.) c. 60. It was agreed at the hearing in the Land Court that the “town had a good title to the premises on March 23rd, 1936.”
At the hearing before the Land Court the following written evidence was introduced by the demandant: (1) A vote of the town of Bellingham duly adopted at the town meeting on March 10, 1932, as follows: “Article 6. On motion of Walter H. Thayer, duly seconded, it was voted that the Treasurer, with the approval of the Selectmen, is authorized to sell at public auction or private sale, all or any of its property acquired by virtue of sale for non-payment of taxes, which sales have been confirmed by the Land Court or the Tax Commissioner, and to give proper deeds therefor. ” (2) A record of the meeting of the board of selectmen held on March 23, 1936, signed by the clerk of the board, containing the following: “The sale of the property of Herbert H. Ambler by the Town Treasurer, Walter H. Thayer to Mr. Noyes was approved.” (3) A deed from the town of Bellingham to the demandant, dated March 23, 1936, recorded with Norfolk deeds, book 2105, page 241, signed by the treasurer of the town, Walter H. Thayer, admitted to have been in proper form to convey the title, which said deed contained a certificate or statement that the board of selectmen of the town of Bellingham had approved the same, under which statement appeared the signatures of two of the members of the board of selectmen. There was also a certificate appended to the deed certifying that a vote had been taken at a meeting of the board
The judge of the Land Court found the following facts: “. . . no formal vote, 'on motion duly made and seconded' was taken at the meeting of the selectmen, as set forth in the vote attached to the deed and recorded therewith. All three selectmen were present during the whole of the. meeting. The chairman had with him the deed to the demandant which had previously been executed by the town treasurer. This he produced, and suggested that there was nothing to do but to approve it. Thereupon it was approved and signed by the chairman and Walter D. Richard. All this was in the presence and with the knowledge of the tenant, Herbert H. Ambler, the third member of the board. The consideration named in the deed was later paid by the demandant, and the deed delivered to him. The buildings on the demanded premises consist of a camp, a barn, a small store which has been converted into a dwelling, and two outhouses. They are all on posts and have no cellars. They are of cheap construction and in poor condition. All were erected prior to the date of the assessment of the tax for the nonpayment of which the premises were sold to the town. They were paid for by Herbert H. Ambler but he intended them to be attached to the realty and to become the property of his wife, the other tenant, who then owned the land. Prior to the tax sale they were assessed as realty to Annie E. Ambler with the knowledge of both tenants. There were also on the premises a racetrack for ponies, and some swings and slides, all erected by the tenant Herbert H. Ambler for public amusement purposes.” The judge ruled that the vote of the town on March 10, 1932, being unrevoked, was still effective at the time of the sale to the demandant;
It may be here noted that no exception was taken at the trial in the Land Court to the admission or exclusion of evidence, and no exception was taken to any ruling or refusal to rule by the judge. Judgment was ordered for the demandant.
The tenants in support of their appeal present the following questions of law: (1) “Has there been a sufficient approval of the sale by the selectmen or board of selectmen to validate the deed?” (2) “Have the treasurer and present board of selectmen any authority to convey newly acquired land under the vote of March 10, 1932?” (3) “Did the title to the buildings and other business improvements pass to Noyes under his deed from the town?” (4) “Is the deed or approval thereof in accordance with statute of frauds?”
The vote of the town meeting held on March 10, 1932, manifestly contemplated that the town would acquire real estate by virtue of sales for the nonpayment of taxes, and that rights of redemption of such acquired properties would be foreclosed after two years from a sale for taxes. G. L. (Ter. Ed.) c. 60, §§ 64, 65. The vote authorized the sale of both properties already so acquired and properties thereafter so acquired, when the period for redemption had passed and the right of redemption had been foreclosed by the Land Court. G. L. (Ter. Ed.) c. 40, § 3; c. 60, § 77. The intention of the town in passing the above quoted vote clearly was to provide a permanent method for the disposal of property acquired in the manner set forth in the vote. Lumbard v. Trask, 9 Met. 557, 561. Packard v. First Congregational Parish in Duxbury, 256 Mass. 550, 551.
As to the question whether there has been a sufficient approval of the sale by the selectmen, the judge found that no formal vote on motion duly made and seconded was taken at the meeting of the selectmen, but found that all the selectmen were present during the whole of the
As to the buildings upon the real estate, the judge found that they were erected prior to the date of the assessment of the taxes for the nonpayment of which the premises were sold to the town, that they were paid for by the tenant, Herbert H. Ambler, who intended them to be attached to the realty and to become the property of the other tenant, and that prior to the- tax sale they were assessed as realty to Annie E. Ambler with the knowledge of both tenants. They were legally assessed. G. L. (Ter. Ed.) c. 59, § 3. Milligan v. Drury, 130 Mass. 428. The sale of the premises for taxes and the foreclosure of the right of redemption passed the whole title, including land and buildings. O’Brien v. Joyce, 117 Mass. 360. The tenant Herbert H. Ambler was not holding adversely to the de-
We find no error in the proceedings in the Land Court.
Judgment for the demandant.