SUPREME JUDICIAL COURT.

JANUARY, 1872.

CITY OF CHARLESTOWN v. COUNTY COMMISSIONERS OF MIDDLESEX.

Opinion of the Court.

MORTON, J. This is a petition for a writ of certiorari to quash the proceedings of the county commissioners upon a complaint by Daniel Chamberlin for the abatement of a tax assessed upon him by the city of Charlestown in the year 1869. The respondents, as a part of their answer, file a full copy of their record of proceedings in the premises. It appears that said Chamberlin, in May, 1869, was a resident of Boston, and was lessee of the Waverley House in Charlestown, which he was carrying on as a hotel, and that he owned the furniture of said hotel. Within the time required by the notice of the assessors, namely, on June 9, 1869, he filed with the assessors a list of his estate liable to taxation, subscribed and sworn to by him, which list included the furniture of the hotel, valued at $62,000, and other personal property valued at $3,000.

The assessors did not accept this valuation; but assessed a tax upon the said Chamberlin for personal property to the value of $75,000.

He thereupon duly applied to the assessors for an abatement of his tax; and they abated the tax upon $10,000 and refused to make any further abatement. Within one month after such refusal he filed his complaint, in the nature of an appeal, with the county commissioners, who, after due notice and a hearing, abated the tax assessed upon the furniture of the hotel.

The first and most important question in the case is, whether Mr. Chamberlin was taxable in Charlestown upon the furniture owned by him and used in carrying on the hotel.

He was an inhabitant of Boston. The general position of the statute is, that "all personal estate within or without this State shall be assessed to the owner in the city or town where he is an inhabitant on the first day of May." Gen. Stats., ch 11, § 12.

Mr. Chamberlin, therefore, was taxable for this furniture in Boston, unless the case is within one of the exceptions to this general provision. The petitioners claim that it falls within the first exception, which is as follows: All goods, wares, merchandise and other stock in trade (except ships or vessels owned by a copartnership), including stock employed in the business of manufacturing or of the mechanic arts, in cities and towns within the State other than where the owners reside, whether such owners reside within or without this State, shall be taxed in those places where the owners hire or occupy manufactories, stores, shops or wharves, whether such property is within such places or elsewhere, on the first day of May of the year when the tax is made."

To make a person taxable, under this provision, in a town of which he is not an inhabitant, it must appear that he hires or occupies a manufactory, store, shop or wharf in such town. Unless he does, he is not taxable in such town for any goods or merchandise he may have there, however large in value, but is liable to taxation upon such goods in the town of which he is an inhabitant. Huckings v. Boston, 4 Cush. 543. Loud v. Charlestown, 103 Mass 278.

We think this case does not fall within this provision. Mr. Chamberlin hired and carried on a hotel in Charlestown; but it would be a distortion of language to say that his hotel was either a manufactory, shop, store or wharf. Upon no reasonable construction of the

language of the statute relied upon by the petitioners can the case be held to be within its provisions. The commissioners correctly decided that he was not taxable in Charlestown upon the furniture used in the hotel.

But the petitioners contend that neither the assessors nor the commissioners had authority to abate the tax, because Chamberlin included the furniture in his sworn list as property liable to taxation. We find in the statutes no such limitation of the power of the commissioners or assessors. If the tax payer makes it appear that he is taxed at more than his just proportion they are to make a reasonable abatement. Gen. Stats., ch. 11, §§ 43-46.

We can see no reasons of justice or public policy why, if he, by a mistake of his rights, returns to the assessors, as liable to taxation, property which is by law exempt, he should be thereby estopped to claim a reasonable abatement and compelled to pay more than his just proportion of the taxes. This question was substantially decided in Dunnell Manufacturing Co. v. Pawtucket, 7 Gray, 277.

The evidence offered in this court to the effect that said Chamberlin devoted a part of the hotel to the sale of cigars and liquors to the public as well as the guests of the hotel, and for a public billiard table, was inadmissible. They cannot by evidence, aliunde, control the records of the commissioners. Mendon v. County Commissioners, 15 Allen, 13.

The petitioners further contend that the commissioners erred in awarding that the city of Charlestown pay the costs of the proceedings to be taxed by the commissioners.

It was decided in Lowell v. Commissioners of Middlesex, 3 Allen, 546, that the commissioners have no power to award costs in such

cases.

This part of their judgment, therefore, was erroneous; and, for the sole purpose of correcting this error, a writ of certiorari may issue. Charlestown v. County Commissioners of Middlesex, 109 Mass. 270. Stat. of 1882, ch. 218, authorizes county commissioners to award costs. See also 1890, ch. 127.

Personal Estate of Deceased Persons.

Pub. Stats., ch. 11, §§ 20, 21, 44.

See COLLECTORS; DECEASED PERSONS.

Hardy v. Yar

mouth, 6 Allen, 277. Carleton v. Ashburnham, 102 Mass. 348. Wood v. Torrey, 97 Mass. 321, for the old law.

POLLS.

Pub. Stats., ch. 11, §§ 1, 11, 48, 93; 1884, ch. 298; 1885, ch. 271; 1886, ch. 68; 1888, ch. 200; 1893, ch. 417.

State and county taxes are to be assessed upon polls; the tax for each is limited to one dollar upon each poll; the excess above said amount, and in every case the whole amount assessed for other purposes in any year, is to be apportioned upon property. See § 48, ch. 11.

POOR DEBTOR'S OATH.

Pub. Stats., ch. 12, § 16.

PROTEST.

A protest to be valid as a basis for a suit at law to recover a tax illegally assessed, must be in writing "signed by the person paying the same," filed with or delivered to the collector before or at the time of payment; and an action to recover the amount must be "brought by the person assessed for the tax within three months after such payment." Stat. 1888, ch. 390, § 94; Knowles v. Boston, 129 Mass. 551.

RATE.

In cities and towns in which any national bank is located. See Pub. Stats., ch. 11, § 33; 1887, ch. 226. See NATIONAL. BANKS.

REASSESSMENT OF TAXES.

Pub. Stats., ch. 11, §§ 79, 80. See cases cited in margin and 136 Mass. 132.

See TAXES.

REAL ESTATE.

Assessment to Owners Unknown.

Assessors, knowing who is in possession of real estate, cannot legally assess its tax on owners unknown"; neither can they make such an assessment, knowing or having the means of knowing in whom the record title is. Oakham v. Hall, 112 Mass. 535.

The question as to who is liable to pay the tax on land sold and conveyed on the first day of May, or immediately thereafter, is settled by the following decisions of our Supreme Court:

:

CHAPMAN, C. J. On May 1, 1868, when the taxes were assessed, the land became liable for their payment. It is true that payment was not to be made till the tax bills should be made out and put into the hands of the collector, and all the necessary preliminary steps should be taken on his part. It is also true that they might be collected otherwise than by a sale of the land; and thus its liability might terminate, or it might cease by lapse of time. But they have not been paid otherwise, and the purchaser has been compelled to pay them. He was obliged to pay them in order to relieve the land

from a liability to which it was subject when he took his conveyance with the covenant against encumbrances These taxes had all the characteristics of an encumbrance. What constituted the encumbrance was the present paramount right of the city to hold the land subject to the payment of the taxes already assessed, if they should not be paid otherwise. It is none the less an encumbrance, because the taxes might be collected otherwise. It might as well be contended that a mortgage to secure a note given by a third person was not an encumbrance, because the note might be collected of the maker.

It is contended that this is no more an encumbrance than the liability of the land for the taxes that may be assessed in future years. But the obvious difference is, that there can be no liability for an assessment which does not exist, and the covenant relates merely to existing encumbrance. Cochran v. Guild, 106 Mass. 30.

SUPREME JUDICIAL COURT.

LAW OCTOBER, 1872.

WILLIAM H. HILL, JR., v. JOSIAH BACON.

Opinion of the Court.

Bacon sold land to Hill by a deed dated April 30, but acknowledged and recorded May 1. Hill paid the tax for the year under protest, and sued to recover the amount paid. The opinion of the court is by

WELLS, J. Taxes are assessed as of the first day of May in each year; and on real estate, "to the person who is either the owner or in possession thereof on the first day of May." Gen. Stats., ch. 11, § 8. They "constitute a lien thereon for two years after they are committed to the collector." Gen. Stats., ch 12, § 22. To be effectual, this lien must relate back to the first day of May. Such, doubtless, was the intent, and should be the construction, of this provision of law; although, practically, the tax is not assessed until some weeks or perhaps months later.

It is agreed that the defendant "was the owner and in possession of the land in question on the first day of May, 1869. The tax, then, was lawfully assessed to him, and constituted a lien upon the land. There is no point of time, less than the day, at which the tax can be regarded as laid. It will be sustained by ownership or possession during any part of the day. It would have been equally valid if it had been assessed to the plaintiff, who became owner on that day.

The covenant against encumbrances relates to the present condition of the title. Whether a lien, to be created by the laying of a tax, subsequent in actual imposition, but by law relating back to the first day of May, constitutes a breach of this covenant in a deed dated April 30, and delivered May 1, we need not decide, because we think it is clearly a breach of the covenant to warrant and defend; and, upon the agreed facts, if it is held to be a breach of either covenant, the plaintiff is entitled to the same measure of damages in one case as in the other. The covenant to warrant and defend is prospective. The tax being lawfully assessed to the defendant, constituting a lien upon the land, and that lien being enforced by a sale in due form, the plaintiff was obliged to buy in the superior title to protect himself from eviction. The outstanding title or right being derived through the defendant, there was a literal breach of his covenant to warrant and defend. 2 Greenl. Ev., § 244. 2 Wash. Real. Prop., 666. Curtis v. Deering, 12 Maine, 499.

Invalid assessment a lien on real estate. 132 Mass. 451. See LIEN. The warrantor is bound by the literal purport of his covenant. Judgment for the plaintiff. Hill v. Bacon, 110 Mass. 387.

A tax on real estate may be assessed to a person who appears by the records to be the owner, if the municipality assessing the tax has no notice that he has previously conveyed the land. Tucker v. Deshon and another, 129 Mass. 559.

Real estate in the possession of a mortgagee, the equity of redemption of which has been conveyed, was improperly taxed to the mortgagor It was afterwards sold and conveyed under a power of sale in a second mortgage, and the tax was subsequently reassessed under the Gen. Stats., ch. 11, § 53, to the holder of the equity, based upon a valuation other than that of the year for which the tax was originally assessed. Held, that the reassessment was invalid.

If land is sold for a tax improperly assessed, the true owner, if in possession, may maintain a bill in equity against the purchaser at the tax sale to quiet his title. Davis v. Boston, 129 Mass. 377 (1880).

The owner of a parcel of land died, leaving a widow and an heir at law. Dower was not assigned to the widow, and she, acting as agent for the heir at law, let the land to a tenant. While the tenant

was in sole occupation of the land, a tax upon it was assessed to the widow. Held, that the widow was not the person "in possession," within the Pub Stats., ch. 11, § 13; and that the assessment was invalid. Lynde v. Brown, 143 Mass. 337.

An interesting decision as to the taxation of land flowed by water and the water-power is the following:

WELLS, J. The petitioner was liable to be taxed in Windsor for his land lying within that town, and structures upon it. He asks for an abatement on the ground of over-estimate in two respects: 1st, in the number of acres of land; 2d, in the valuation of land and structures.

1. As to the over-estimate in the number of acres: It appears that the list filed by the petitioner gave the amount of land in one parcel as forty-one acres, but failed to give the number of acres in two other parcels, which were entirely flowed by the pond.

The assessors called the whole sixty-five acres. The agreed facts state the quantity of land as follows: an area of about fifty-five acres, more or less" We do not think this makes out a case for the petitioner to have an abatement on that ground.

2. The valuation by the assessors was for dam and land, sixty-five acres, $15,000 aggregate value. The land cost $2,531, and the dam $33,770. About half of the land is covered by the pond. The agreed facts state that the land, "while covered by water," and the dam, independent of its use for the purposes of a reservoir," are of only nominal value. Upon this statement the petitioner contends that any valuation and tax upon the land so covered, and the dam so used, must necessarily be made and levied upon the water-power. The case of Boston Manufacturing Co. v. Newton, 22 Pick. 22, decides that water-power is taxable only as incident to land; and that when used, it is to be regarded as incident to the mills to which it is applied, and not to the dam and pond by which it is created. But it does not decide that the land and structures, by which it is created, are not taxable for their value as such.

The decision in Lowell v. County Commissioners, 6 Allen, 131, is that canals used for supplying water-power to mills, and "land