Tax, Sale, Deed. Equity Jurisdiction, To remove cloud from title, Statute of limitations, Laches Mortgage, Of real estate. Evidence, Presumptions and burden of proof.
A deed by a collector of taxes, made in 1913, after a sale for the collection of a tax upon real estate owned of record by the heirs of a deceased person, was invalid under St. 1909, c. 490, Part II, §§ 14, 44, because, while it recited that demand for the payment of the tax was made on the decedent's "heirs," it did not state the "name of the person on whom the demand . . . was made."
A suit in equity to remove from the plaintiff's title to real estate a cloud created by an invalid tax deed is not a bill to redeem from a valid tax sale and therefore is not subject to the limitation stated in St. 1909, c. 490, Part II, § 76.
No unreasonable delay barring such a suit by reason of laches of the plaintiff was shown in the circumstances, where it appeared that the suit, in which the defendant entered a general appearance, was brought within six years after the plaintiff discovered the invalidity of the sale and no rights of third parties had intervened.
Where a suit in equity cannot be maintained unless the plaintiff proves title to real estate as a purchaser at a sale by an assignee of a mortgage in foreclosure of the mortgage, the mere fact, that no payment of principal or interest had been made upon the note secured by the mortgage during a period of twenty years elapsing between its date and the date when the plaintiff received it by assignment, does not require a ruling that there was no evidence which would warrant findings that the mortgage had not been discharged and that the plaintiff obtained a good title by the foreclosure sale.
It not appearing in the suit above described that the mortgagor or persons claiming under him had remained in continued possession of the real estate without any acknowledgment of the mortgage for twenty years after the debt had become due and payable, and it appearing that the note and mortgage at the time of the assignment were in possession of the mortgagee, who received from the assignee for the assignment the full amount of the principal with accrued interest then due, and that they were considered by him as living obligations which had been recognized by the mortgagor by the giving to the same mortgagee, some three years after the date of the first mortgage, of a second mortgage, which stated that it was subject to the first, findings were warranted that the mortgage had not been discharged and that the plaintiff had obtained a good title at the foreclosure sale.
BRALEY, J.
The deed of the collector of taxes under which Wilbur, who has entered into possession, claims title to the premises described in the bill of complaint was invalid. The assessments to the George Blanchard heirs who appeared of record as owners of the property, was lawfully levied. But, while the deed recites that demand for payment was made on them, the statute then in force required the collector to state the "name of the person on whom the demand . . . was made." St. 1909, c. 490, Part II, §§ 14, 44. Conners v. Lowell, 209 Mass. 111, 118. The ruling of the presiding judge that the deed was fatally defective was right.
The deed having been recorded, the title of Bertram, who claimed to be the owner of the property, was clouded, and he asks in his bill that Wilbur be ordered to release all his right, title and interest derived from the conveyance of the collector. Smith v. Smith, 150 Mass. 73. Sawyer v. Cook, 188 Mass. 163, 170. The bill is not a bill to redeem from a valid tax sale, and the statute limiting such suits to six years from the date of sale, on which the defendant relies in his answer, is inoperative. St. 1909, c. 490, Part II, § 76. Smith v. Smith, 150 Mass. 73. Barker v. Mackay, 168 Mass. 76, 79.
The defence of laches, although not pleaded, is also urged. But assuming that this defence is open, the suit in which the defendant entered a general appearance having been begun within six years after the plaintiff discovered the invalidity of the sale, no unreasonable delay is shown. Sunter v. Sunter, 190 Mass. 449, 456. Steward v. Joyce, 201 Mass. 301, 307, 308. Britton v. Goodman, 235 Mass. 471. Paige v. Sinclair, 237 Mass. 482.
The plaintiff derives his alleged title from the foreclosure by Emily Bertram of a mortgage which was outstanding of record when the assessments and sale were made. It is contended by the defendant that the mortgage, on which no payment of principal or interest had apparently been made during the twenty years elapsing between its date and when it was assigned to Emily Bertram, is unenforceable and that the plaintiff has failed to establish his ownership. But there is no evidence that the mortgagors or those claiming under them remained in continued possession without any acknowledgement of the mortgage, for twenty years after the debt became due and payable. If such circumstances had been shown they would not have been conclusive that the debt had been paid. The presumption could be overcome by proof of circumstances tending to show that no payment had been made. Kellogg v. Dickinson, 147 Mass. 432, 437. Jenkins v. Andover Theological Seminary, 205 Mass. 376, 379. The note and mortgage at the time of the assignment were in possession of the mortgagee, who received the full amount of the principal with accrued interest. It was considered by him as a living obligation which had been recognized by the mortgagors in their second mortgage to him some three years later, and, in the absence of any proof to the contrary except the mere efflux of time, we cannot say as matter of law that there was no evidence which warranted the judge in finding that the mortgage had not been discharged and that the plaintiff obtained a good title by foreclosure sale. Ayres v. Waite, 10 Cush. 72, 76; Kellogg v. Dickinson, supra. See Inches v. Leonard, 12 Mass. 379, 380.
A full examination of the exceptions in so far as argued reveals no error of law, and they should be overruled.
So ordered.