148 Mass. 508 | Mass. | 1889
These are suits to recover taxes for the year 1883, upon two estates taken by the Commonwealth on May 25, 1883, under St. 1882, c. 262. The legal title to one of them was in the plaintiffs as trustees under the will of Samuel A. Way, (Miner v. Pingree, 110 Mass. 47,) and as to the tax upon that one, the only question is whether the taking relieved the plaintiffs of liability. The taking, of course, put an end to the city’s lien upon the land, and to its right to sell it. But as the taking was after May 1, the plaintiffs were not discharged if they
The Public Statutes provide remedies, “ if a person refuses or neglects to pay his tax,” first, by distress of goods (Pub. Sts. c. 12, § 8) ; next, by imprisonment (§ 14); finally, by action (§ 20). It is settled that the remedy by imprisonment applies to taxes on land. Snow v. Clark, 9 Gray, 190. The statutes plainly tell us that the remedy by distress also applies to such taxes. For, by § 23, a distress of cattle, etc., belonging to the owner of an estate taxed to another, is authorized “ in the same manner as if such stock or produce were the property of the person so taxed,” thus clearly assuming that the cattle of the person taxed may be distrained. The same conclusion follows from the fact that the remedy by imprisonment is only given when sufficient goods cannot be found to be levied upon (§ 14). Lothrop v. Ide, 13 Gray, 93. Hall v. Hall, 3 Allen, 5. Snow v. Clark, 9 Gray, 190. It seems to us very plain, that the third remedy, by action, is of equal scope, and that the words “ when a person neglects to pay his tax ” cannot be construed to exclude taxes on real estate in this section, when they are construed to include them in the others. It is to be remembered, also, that taxes on real estate are assessed, not to the estate, but “ to the person ” who is owner or in possession on May 1. Pub. Sts. c. 11, § 13.
The history of our legislation adverted to in Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444, if it cannot be said to furnish any stronger argument than is to be found in the plain woi'ds of the Public Statutes, at least leads to no different result. By the older statutes, the general remedy for refusal to pay any rate or tax was distress, and, in case of failure to find sufficient chattels for the levy, arrest. It applied to taxes on persons in respect of their land as plainly as to other taxes. Colonial Laws of 1672, (Whitmore’s ed.) 24. Prov. Laws, 1692-93, c. 27, § 2, c. 28, § 6, c. 41, § 7; 1693-94, c. 20, § 17; 1698, c. 5, § 1 ad finem; 1699-1700, c. 26, §§ 13-15; 1730, c. 1, §§ 12-15; 1756-57, c. 11. St. 1785, c. 50, § 6; c. 70, §§ 2, 5, 8, 10, 14. Rev. Sts. c. 8, §§ 7, 11.
In Rev. Sts. c. 8, § 18, the lien for taxes on real estate has become general; but again it is made plain that the lien does not exclude the remedies formerly available, not only by § 16, corresponding to Pub. Sts. c. 12, § 23, already discussed,, but by § 19, which provides that, when a tax on real estate shall be assessed to a non-resident owner, “ the collector may, at his election, collect such tax of the said owner, in like manner as in the case of a resident owner, or he may collect the same by the sale of such real estate.” As was said by Shaw, C. J., of the lien created by one of the annual tax acts which led to § 18 of the Revised Statutes: “ It is a remedy superadded to those of demand, distress and imprisonment; and could not have been expected to be resorted to until other means and remedies had failed.” Hayden v. Foster, 13 Pick. 492, 495. The tax acts which led to Rev. Sts. c. 8, § 18, are as follows : St. 1821, c. 107, § 9 (February 23, 1822), as to lien in Boston; St. 1822, c. 108, § 9 (February 11, 1823), Boston; St. 1823, c. 133, § 9 (February 21, 1824), lien made general; St. 1829, c. 27, § 8 (June 12, 1829); St. 1829, c. 86, § 8 (March 9, 1830); St. 1830, c. 151, § 8 (February 28, 1831).
An exceptional personal liability was imposed by Prov. Laws, 1761-62, c. 16 ; St. 1785, c. 46, § 10. A right of action for rates was given to the constables or collectors in case of death or
As the plaintiffs were personally liable as of May 1, and as the failure actually to assess and to collect the tax on that day does not affect their legal position, it has not been argued that, if they had paid them, they could have recovered, as on a partial failure of the consideration of the tax. No such argument could prevail. The plaintiffs, if they have been deprived of their land, have the price paid them in its place, untaxed for the current year. Moreover, when a personal liability is imposed, it might be difficult to say that the consideration of the tax is solely the protection of the particular parcel of land, although the lien is confined to that. Jennings v. Collins, 99 Mass. 29, 32. Hayden v. Foster, 13 Pick. 492.
In the other suit, Charles G. Way had a life estate in possession at the date of the tax, and the plaintiffs had only a remainder in fee. We are content to assume, for the purposes of this case, that the tax should have been assessed to Charles G. Way, notwithstanding the plaintiff’s acquiescence in the present mode of taxation for several years. Boston Water Power Co. v. Boston, 9 Met. 199, 203, 204. But as the plaintiffs were also assessed for the first-mentioned estate, and as that portion of the assessment was legal, their only remedy was by a petition for abate
