Weld v. Clarke, 209 Mass. 9

Weld v. Clarke

209 Mass. 9 | Mass. | 1911

Braley, J.

The tenant, when the owner, conveyed the demanded premises in fee for the purpose of having the grantee mortgage the land, and, after this had been effected, received back a conveyance of the equity of redemption. The taxes having fallen into arrears for two consecutive years, the collector made separate sales of the estate, which was purchased by one Welsh, who received and recorded the deeds. The mortgage having been assigned to one Roberts, he brought bills in equity to have the sales declared invalid for errors and informalities in the assessments and the collector’s deeds. But, the sales being held valid, the bills were dismissed, and Welsh then deeded the land to the demandant, whose title, having been put in issue by the tenant’s plea, depended upon the validity of the tax deeds. Roberts v. Welsh, 192 Mass. 278. Green v. Kemp, 13 Mass. 515.

It early was decided, that a tax deed with its recitals of itself affords no presumption of regularity, and the burden rested on *12the demandant to show affirmatively by extrinsic evidence that the requirements of the statute had been followed. Alvord v. Collin, 20 Pick. 418, 421. Harrington v. Worcester, 6 Allen, 576. Burke v. Burke, 170 Mass. 499. See St. 1911, c. 370. But no proof was offered, as the judge ruled that the tenant was estopped by the decrees. It is insufficient to create an estoppel, that, if the plaintiff obtained relief, it must have enured to the tenant’s benefit, or that in the present action the parties are interested in proving or disproving the same facts as were there involved. Sturbridge v. Franklin, 160 Mass. 149, 151. If the tenant, however, to establish or protect his own title, caused the suits in equity to be instituted in the name of Roberts, for their joint benefit, and directed and controlled the prosecution, he was the real party in interest, even if a stranger to the litigation upon the face of the record. Valentine v. Farnsworth, 21 Pick. 176. Elliott v. Hayden, 104 Mass. 180, 182. Brigham v. Fayerweather, 140 Mass. 411, 416. The judge found, that the tenant acted as counsel for the plaintiff, paid the costs, and gave his professional services, while retaining his beneficial interest in the equity of redemption, even if the legal title was in numerous persons to whom at various times he caused it to be conveyed. The judge also was satisfied, that the tenant’s title would be affected by the result. It is certain that, if the tax titles were set aside, although the mortgage still would be an outstanding incumbrance, the equity of redemption also would be preserved. The tenant under these findings is shown to have been substantially interested in the subject matter of these suits, with full opportunity to control the proceedings, to examine witnesses, and to take and prosecute an appeal from the decrees of the trial court to this court. While not having been joined as a party to the proceedings, yet he acted in conjunction with Roberts or as the real party in interest and as manager of the suits. The tenant therefore, having been bound by the decrees, is estopped from contesting the validity of the tax deeds. Elliott v. Hayden, 104 Mass. 180. Nash v. D'Arcy, 183 Mass. 30. Cecil v. Cecil, 19 Md. 72. Peterson v. Lothrop, 34 Penn. St. 223. American Bell Telephone Co. v. National Improved Telephone Co. 27 Fed. Rep. 663.

It appeared in the itinerary of the equity of redemption, that *13one Holt while the owner brought a petition under R. L. c. 182, §§ 1-5, against Welsh to require him to try his title, and caused notice of the pendency of the petition to be entered in the registry of deeds. But Welsh, having previously conveyed to the demandant, who did not record the deed until after the notice had been filed, appeared and disclaimed the alleged ownership. It is contended by the tenant, that the judgment on the disclaimer in favor of Holt vested the absolute title to the land in him, or in other words, that Holt by the disclaimer 'became an innocent purchaser for value without notice of the prior conveyance. The tenant misconceives the purpose of the statute. It was not intended as a substitute for the remedies which may be used for the recovery of land. In Orthodox Congregational Society v. Greenwich, 145 Mass. 112, 113, it was said by Chief Justice Morton of the Pub. Sts. c. 176, where a similar provision is found, “The object of the proceedings is not to try the title to the real property; the court cannot make any decree, unless the respondent makes default, which will operate as a conclusive adjudication of the title of either party.” The disclaimer is to be treated as a pleading which did not operate to convey any new source of title to the petitioner, or estop the demandant from claiming that the tax title was paramount to the tenant’s estate.

The third and fourth requests were properly refused, and the first, fifth, sixth and seventh were rendered inapplicable by the findings of the judge.

Exceptions overruled.