143 Mass. 59 | Mass. | 1886
These are appeals from final decrees in two suits in equity heard upon issue joined and evidence. The evidence is not reported, and the only questions before us are whether the decree in each suit is warranted by the frame of the bill, and is consistent with the facts found and recited in the decree.
The first suit was brought on May 26, 1885, by Elizabeth O’Day, a minor, who sues by her guardian, John W. McDonald, against Edwin F. Bowker, to redeem a lot of land from tax sales and conveyances made to the defendant in 1881 and 1882, for the payment of taxes assessed in 1880 and 1881. The second suit was brought on December 5, 1885, by the same plaintiff, against Sarah B. Bowker, to redeem the same lot of land from a tax sale and conveyance made to the defendant in 1888, for the payment of a tax assessed in 1882.
The final decree entered in the second suit is as follows:
- “This cause came on to be heard at a sitting of this court, December 22,1885, upon its merits, and it appearing that the parties to said cause were all before said court, evidence was then and there heard and duly considered by the court, after
The decree in the first suit is similar, except that it does not recite any facts concerning the tax sale to Sarah B. Bowker, as this was subsequent to the sales from which the first bill seeks to redeem the land; neither does it find that any conveyance had been made to Conners by the plaintiff’s guardian. The sale to French in 1880 is not set up in the answer to either bill, but the facts found and recited in the decrees, if material, cannot be disregarded, although they have not been pleaded. They are facts found by the court, and incorporated into the decrees, and,
It appears by the decrees, that every sale was made within two years of the time- when the taxes were committed to the collector, and while they were a lien upon the land; Pub. Sts. c. 12, § 24; Gen. Sts. c. 12, § 22; and, as it has been in effect found that the taxes were lawfully assessed and the land sold, the deeds given by the collector in accordance with the statutes, if recorded within thirty days, conveyed to the purchaser a good unincumbered title in fee simple to the land, subject to the right of redemption. Butler v. Stark, 139 Mass. 19.
This right of redemption is an interest in land, which may be conveyed, or devised, and which descends in the same manner as other real property. The title to the land, subject to any right of redemption that might exist, passed first to French, the purchaser at the tax sale in 1880, who, on September 4, 1880, conveyed it to Ellis ; secondly, to Edwin F. Bowker, the defendant in the first suit, who purchased at the tax sales in 1881 and 1882; and thirdly, to Sarah B. Bowker, the defendant in the second suit, who purchased at the tax sale in 1883. When the second suit was brought, two years from the day of sale to Sarah B. Bowker, the defendant therein, had expired, but five years had not. See Pub. Sts. c. 12, §§ 49, 66; Gen. Sts. c. 12, §§ 36, 42. When the first suit was brought, two years had expired from the day of the last sale to Edwin F. Bowker, the defendant therein, but five years had not expired from the day of either sale to him. Five years from the day of the sale to French had not expired when the first, but had expired when the second, suit •was brought. It is plain, therefore, that the only statutory provisions under which the plaintiff can maintain her suits are the Pub. Sts. c. 12, § 66, (Gen. Sts. e. 12, § 42,) which were first enacted in the St. of 1856, c. 239, § 4. See Mitchell v. Green, 10 Met. 101; St. 1849, c. 213, § 2.
These provisions were enacted, not for the purpose of extending in every case the time of redemption from two to five years, but for the purpose of permitting the court to grant relief, at any time within five years from the taking or sale of the land, if
When there have been successive tax sales of land to different purchasers, whether all the different purchasers, or the persons holding their titles at the time the suit is brought, must be made parties defendant in a bill to redeem the land from these sales, and whether, if the right of redemption is gone as against a purchaser at a prior sale, it can be enforced against a person holding under a subsequent sale, are questions which have not been determined in this Commonwealth. If this plaintiff has no right of redemption against Ellis, then the absolute title to the land, as between her and Ellis, is in him. If Ellis has no right of redemption against Edwin F. Bowker, then the absolute title, as between them, is in Edwin F. Bowker; and, if Edwin F. Bowker has no right of redemption against Sarah B. Bowker, then the absolute title, as between them, is in Sarah B. Bowker. The relation of the parties is not precisely the same as if Ellis had conveyed his title to Edwin F. Bowker, and he to Sarah B. Bowker, and this was the only title which Edwin F. Bowker or Sarah B. Bowker ever held; yet, if the plaintiff has no right to redeem from Ellis,' and Ellis has no right to redeem from Sarah B. Bowker, the plaintiff, under a bill to redeem from Sarah B. Bowker, certainly ought not to be permitted to obtain Sarah B. Bowker’s title, which is good against Ellis, in order to set it up against him, and ultimately to obtain the land from him, when she has no right to redeem the land from him. If the plaintiff claiming as sole owner, is permitted to redeem,
In Faxon v. Wallace, 98 Mass. 44, and 101 Mass. 444, the defendants were Wallace, to whom the tax sale was made, Bean, to whom Wallace made a deed of the land, Kent, to whom Bean made a mortgage, and Emerson, to whom Kent assigned his mortgage; and the court say: “ As the other defendants claim title under Wallace, they are properly made parties to the bill, in order that they may be concluded by the decree. The rule is, that all persons having any apparent right in the subject should be made parties to a bill in equity.” 98 Mass. 45. This was a bill to redeem from a single tax sale under which all the defendants claimed. Still, we think that the convenient and proper practice is to summon as defendants all persons who hold an interest in the land under the successive tax sales, even if it should be held that their rights, as against each other, could not be determined in the suit. The rights of the plaintiff against each and all can be determined, and it is necessary that they should be, in order to complete the title of the plaintiff; and the right to redeem against a prior purchaser may be of no avail unless the plaintiff also has the right to redeem from the person who holds the land. However, no objection to the want of proper parties having been taken, the court, at this stage of the
The Pub. Sts. c. 12, § 49, (Gen. Sts. c. 12, § 36,) give to the owner of real estate, his heirs and assigns, the right to redeem. Section 66 of the Pub. Sts. c. 12, does not specify who may seek the relief which the court, by this section, is authorized to give in equity; but it must be held that they are, in general, the same persons as those who have the right to redeem under the Pub. Sts. c. 12, § 49. In Rogers v. Rutter, 11 Gray, 410, it was held that a person in possession of the land under a contract of purchase, which gave him the right of possession during the continuance of the contract, had a right to redeem under the St. of 1856, c. 239, § 4, (now the Pub. Sts. e. 12, § 66,) on the ground that he might be regarded “ as the owner of the land, within the meaning of the statute, for the purpose of protecting his interest therein.” This shows that the statute is to be construed liberally, but the plaintiff in order to redeem must show some title or interest in the land. It is competent for Sarah B. Bowker to show that the plaintiff has no title or interest in the land, as, for example, that she has conveyed her title to another person; and, if the plaintiff’s right to redeem the land from Ellis is gone, she shows no title or interest in the land. The plaintiff claims no title except as heir to her father and mother, and that title she has, on the facts found, absolutely lost. In Gladwin v. French, 112 Mass. 186, it was held that such a bill as this is must be filed within five years of the sale, and that this limitation is imperative. In the Pub. Sts. c. 12, § 49, there is a provision that a person having the requisite title may redeem the land within two years “ after he has actual notice of the sale ; ” but the facts do not bring the plaintiff’s case within this provision.
It is contended that, as the plaintiff is an infant, the limitations of two and five years in the statutes do not affect her, at least as to the one third part of the land which she inherited from her mother. But there are no exceptions in favor of infancy in the statutes, and there is nothing in the Constitution of the Commonwealth that requires that the Legislature should make any such exception in the exercise of its power to levy and
It is manifest that if, by the decree in the second suit, Sarah B. Bowker’s absolute title 'is established as against the plaintiff, the plaintiff can take nothing that will be of any benefit to her under the decree in the first suit, unless under that clause of the decree which directs Edwin F. Bowker, on receiving payment of what is due him, to execute and deliver to her “ deeds of release of said estate,” &c. It is suggested that, if the plaintiff can obtain Edwin F. Bowker’s title, whatever it is, the plaintiff can then use that as the foundation of proceedings against Sarah B. Bowker; or, in other words, if Edwin F. Bowker has a right to redeem from Sarah B. Bowker, the plaintiff, by obtaining Edwin F. Bowker’s right, could then perhaps maintain a bill against Sarah B. Bowker, because Edwin F. Bowker’s title is superior to that of Ellis, and five years have not expired since the sale to Edwin F. Bowker,' and whether there are such equitable circumstances that a court of equity would grant relief to him, as against Sarah B. Bowker, has never been determined.
In Simonds v. Towne, 4 Gray, 603, the court ordered the defendants to execute a deed of quitclaim and release to the plaintiff, but it did not appear that any intervening rights had been acquired by other persons. In the present case, the rights of French and his grantee, Ellis, have intervened; and, as we have said, the effect of redemption ought not to be to give to the plaintiff a new title superior to her original title, which she could use against Ellis without redeeming from him, and could use against Sarah B. Bowker, although, by her original title, she has no right to redeem from her. The statutes give a right to redeem the “ estates taken or sold,” or the “ real estate so taken or sold,” and not a right to redeem a right of redemption. Pub. Sts. c. 12, § 49. The estate in fee is vested in Sarah B. Bowker, and not in Edwin F. Bowker; and we must hold that the
It is true that it is not established in the first suit that the estate is in Sarah B. Bowker, as in that suit there are no averments and no findings concerning the sale to her. But as the two suits were heard together, and were argued together here, we ought not to ignore altogether the proceedings in the second suit. We cannot now use these proceedings to defeat the first suit, because they are not of record in it, but we can vacate the decree to enable the defendant in the first suit to amend his answer, and set up the tax sale and conveyance to Sarah B. Bowker, the plaintiff’s suit against her, and the decree in that suit dismissing the bill; and, if the plaintiff further prosecutes the first suit, these facts can be found, and the bill be dismissed.
For these reasons, the majority of the court are of opinion that the decree in the first suit should be vacated, and the cause remanded to the court sitting for the county for proceedings in accordance with this opinion; and that the second bill should be dismissed.
So ordered.