Municipal Corporations, Liability to purchaser of defective tax title. Tax. Covenant.
A purchaser at a tax sale made by the collector of taxes of a town cannot recover from the town the amount paid by him for his tax deed containing the warranty required by R.L.c. 13, § 43, upon showing that the title was defective by reason of an insufficient notice of the sale by the collector, unless such purchaser within two years after the date of the deed complied with the requirement of R.L.c. 13, § 44, by offering by a writing given to the collector to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest in the premises.
Whether the liability to the purchaser at a tax sale, which is imposed on a town or city by R.L.c. 13, § 44, in case it appears that, by reason of an error, omission or informality in the assessment or the sale, the purchaser has no claim upon the property sold, properly may be considered a liability upon the warranty of the collector of taxes that the sale has in all particulars been conducted according to law, which is required by R.L.c. 13, § 43, to be inserted in all tax deeds, here was not passed upon, because, although the action was brought against a town on the warranty, no recovery was permitted on account of the plaintiff's failure to make the offer required by R.L.c. 13, § 44.
KNOWLTON, C.J.
This is an action to recover from the defendant the amount paid by the plaintiffs for a tax deed of property described in the declaration, given by the collector of taxes of Dedham, it having been discovered that the title conveyed by the deed was defective by reason of an insufficient notice of the sale by the collector. The plaintiffs did not, within two years after the date of the deed, offer by writing given to the collector, to surrender and discharge their deed, or to assign and transfer to the town all their right, title and interest in the premises, as they might have done under the R.L.c. 13, § 44. The question is whether they can recover without having made such an offer.
It was held in Lynde v. Melrose, 10 Allen, 49, that, in the absence of a statute, a purchaser at a sale of real estate for taxes cannot recover from a city or town the amount paid, if the title proves to be invalid by reason of defects or informalities in the proceedings. The court said: "He buys a title without warranty, except such covenants as he takes from the collector; and he must rely only upon them." These, in the form prescribed for a collector's deed, are the personal covenants of the collector, and not covenants of the town. The town is not liable by reason of them, except in the manner and to the extent declared by the statute.
The first act on this subject was St. 1862, c. 183, § 6, which required a collector to insert a covenant that the sale had "in all particulars been conducted according to the provisions of law." It is then provided that, if it should appear that by reason of any error, omission or informality in any of the proceedings of assessment or sale, the purchaser had no claim upon the property sold, he might surrender and discharge his deed, and receive back from the city or town the amount paid by him. This was similar to the present statute, except that no limit of time was stated for the surrender and discharge of the deed. By the St. of 1878, c. 266, § 1, this section was amended by adding a proviso that the purchaser should, within two years from the date of the deed, offer in writing to surrender and discharge the deed, or to assign and transfer to the town or city all his right, title and interest therein, as the collector should elect. This provision has been retained in all subsequent re-enactments. Pub. Sts. c. 12, § 39. St. 1888, c. 390, §§ 43, 44. R.L.c. 13, § 44. St. 1909, c. 490, Part II. § 45.
These provisions of the statute create the only liability of a city or town for any defect in the title conveyed by the deed of a collector of taxes. The last sentence of the section is as follows: "No city or town and no treasurer or collector thereof shall pay or be liable for any amount due under the provisions of this section unless such statement is filed." R.L.c. 13, § 44. It is also said that the payment "shall be in full for all damages for any defects in the proceedings or under the warranty in such deed." Upon payment the collector is relieved from liability on his warranty, and the city or town is also relieved in like manner, so far as the liability of the municipality under these sections, or by implication under the R.L.c. 13, § 70, may be considered a liability upon the warranty.
In Spring v. Cambridge, 199 Mass. 1, is this language: "By the terms of the statute it is only `upon such surrender (of the deed) and discharge or assignment and transfer' that such a city or town is required to pay."
We are of opinion that the failure of the plaintiffs to avail themselves of their rights under this statute leaves them without a remedy against the town.
Exceptions overruled; judgment affirmed.