Tax, Collection, Collector's deed. Deed. Mortgage, Of real estate. Words, "Duly."
While at common law a deed under a power is valid if it conveys the property and the power to execute it is proved aliunde, it is established law in Massachusetts that tax deeds, the forms of which have been regulated by statute for more than a century, are void if they do not contain the statements prescribed by the statute.
In determining whether a tax deed of real estate which contained allegations that the real estate had been "duly assessed" and that "said assessment was duly committed" to the collector for collection, satisfies the requirements of R.L.c. 13, § 43, as to the statement of the cause of sale, no reliance can be put on the use of the word "duly." The deed must state facts and not the collector's opinion as to facts.
A city collector's tax deed of real estate, which states as the cause of sale, "Whereas V. . . . in 1901, was duly assessed as owner of the real estate hereinafter described, an assessment thereon in the sum of $41 for State, county and city taxes, and whereas said assessment was duly committed to me for collection, and I served on said person . . . a summons, and after ten days therefrom a demand, for the payment of said assessment; and," after publication and posting as required by the statute, "said assessment, interest and charges remaining unpaid, . . . I sold at public auction . . . the whole of said real estate," is not invalid by reason of the fact that it does not in terms state that the assessors issued to the collector their warrant to collect the tax.
While the power of selling land for non-payment of taxes is strictissimi juris and for that reason the statutory requirements of a valid sale must be complied with in minute particulars, the terms in which a tax deed must be drawn are not strictissimi juris, and it is not necessary to state the facts which must be set out in a tax deed with the precision of a common law indictment, per LORING, J.
The requirement of R.L.c. 13, § 43, that a collector's tax deed of real estate shall state, among other things, "the cause of sale" is satisfied if the cause of sale is stated with reasonable certainty.
Where one has conveyed real estate by a mortgage deed containing a covenant that the property is free from all incumbrances, and at the time of the conveyance the property had been sold for non-payment of taxes and had been conveyed to one, to obtain a conveyance from whom the mortgagee paid money as the consideration for a deed and for expenses in procuring it, if thereafter the mortgagee sells the property at a foreclosure sale under a power contained in the mortgage, he may retain from the proceeds of such sale the amount he paid out in procuring a conveyance to him of the tax title.
LORING, J.
The power to sell property for non-payment of taxes is strictissimi juris, and a failure to comply with the statutory requirements, even in minute particulars, is fatal. See for example Alexander v. Pitts, 7 Cush. 503; Knowlton v. Moore, 136 Mass. 32; Spring v. Cambridge, 199 Mass. 1, 3. The tax deeds in question in the cases of Reed v. Crapo, 127 Mass. 39, Barnes v. Boardman, 149 Mass. 106, and Downey v. Lancy, 178 Mass. 465, were cases where the tax title was attacked for defects of this kind.
There was no defect of this kind in the case at bar. The sale was duly made and the statutory requirements were all complied with. If the title here in question is void, it is void because although the sale was valid the deed is not in due form.
At common law a deed under a power is valid if it conveys the property and the power to execute it is proved aliunde. See for example Harrington v. Worcester, 6 Allen, 576, 579.
But the form of a tax deed in Massachusetts is a matter which has been regulated by statute for more than a century. (St. 1785, c. 70, § 7. Rev. Sts. c. 8, § 31. Gen. Sts. c. 12, § 35. Pub. Sts. c. 12, § 38. St. 1888, c. 390, § 43. R.L.c. 13, § 43.) It has been established law for a long time that a tax deed is void which does not contain the statements prescribed by the statute.
One of the facts which must be set forth in a tax deed is (and always has been, see St. 1785, c. 70, § 7) a statement of "the cause of sale." R.L.c. 13, § 43. It was held in Harrington v. Worcester, 6 Allen, 576, that by this is meant a statement of such facts as show that there was a legal cause of sale. The plaintiff's contention is that the tax title here in question is bad because (1) the deed does not state that the assessment for State, county and city taxes assessed upon Maria L.S. de Vaudreuil as owner of the land conveyed by the deed was assessed by the assessors of the city of Worcester, and because (2) it is not there stated that this was included in the tax list committed by the assessors with their warrant to the collector in accordance with R.L.c. 12, § 67.
The deed is in the form authorized by St. 1901, c. 519. It is identical with that form with one exception, to wit: It begins with a statement that the grantor was collector of taxes for the city of Worcester. But the form authorized by St. 1901, c. 519, ends with a statement to that effect. The repetition of that statement at the beginning of the deed is of no consequence. St. 1901, c. 519, was repealed in terms by R.L.c. 227. The question of the validity of the deed here in question therefore depends upon its being a "suitable" one within the provision of R.L.c. 13, § 87, that "other suitable forms may also be used."
In determining whether this deed sets forth a legal cause of sale with sufficient accuracy, no reliance can be put on the use of the word "duly." The deed must state facts and not the collector's opinion as to facts, or (as it is usually put) a tax deed must state facts and not conclusions of law. Bender v. Dungan, 99 Mo. 126. Moore v. Harris, 91 Mo. 616. Spurlock v. Allen, 49 Mo. 178. Duncan v. Gillette, 37 Kans. 156. Henderson v. White, 69 Tex. 103[ 69 Tex. 103]. Maddocks v. Stevens, 89 Maine, 336, 337. Cooley on Taxation, (3d ed.) 998, 999. Blackwell on Tax Titles, (5th ed.) § 778. The tax deed in question in O'Grady v. Barnhisel, 23 Cal. 287, followed the words of the statute.
Again, in determining what is a suitable form (apart from a form allowed by statute) it is proper to consider what forms have been used in practice. The form most commonly used in Massachusetts is that set forth in the report in Adams v. Mills, 126 Mass. 278, to wit: "Whereas, the assessors of taxes of _____, in the list of assessments for taxes which they committed to me to collect for the year _____, duly assessed _____ as owner of the real estate in said city, which is hereinafter described, the sum" etc. It appears from the report of Pixley v. Pixley, 164 Mass. 335, and from the original papers in Lunenburg v. Heywood Chair Co. 118 Mass. 540, Reed v. Crapo, 127 Mass. 39, Knowlton v. Moore, 136 Mass. 32, and Langdon v. Stewart, 142 Mass. 576, that the deeds in those cases were in the same form. The deed in Harrington v. Worcester, 6 Allen, 576, and the form authorized by St. 1888, c. 390, § 96, form 14, and by R.L.c. 13, § 87, form 14, are not materially different.
The singular thing about these deeds and all the forms of tax deeds set forth in the statutes is that although the issuance by the assessors of their warrant to the collector is the foundation of a legal right to collect the taxes committed to him and so is the foundation of a legal cause of sale, no form and no deed that has come to our attention states in terms that the assessors issued their warrant to the collector. (For the form of such a warrant see St. 1785, c. 50, § 6.) Under these circumstances it could not be held that the statement of a legal cause of sale in the deed here in question is insufficient because it is not stated in terms that the assessors issued their warrant to collect this tax.
While the power of selling land for non-payment of taxes is strictissimi juris and for that reason the statutory requirements of a valid sale must be complied with in minute particulars, the terms in which a tax deed must be drawn are not strictissimi juris, and it is not necessary to state the facts which must be set out in a tax deed with the precision of a common law indictment. No right of the owner is affected or secured by the statement in the tax deed of "the cause of sale" in the sense in which that is true of the requirement that "the residence of the grantee" from whom the owner has a right to redeem must be stated in the tax deed. In the statement of "the cause of sale" a reasonable certainty in our opinion is sufficient. And having in mind what must be taken to be a sufficient statement of the issuance by the assessors of their warrant to the collector, we are of opinion that the statement in this deed, omitting the word "duly," is a sufficient statement that the tax here in question was assessed by the assessors, and that they issued their warrant to the collector to collect the same. It is to be noted as to the latter fact that now a warrant may be issued by the assessors to collect taxes at any one of three different times, namely, within a reasonable time after the original assessments are completed; R.L.c. 12, § 67; after assessments which were omitted in the original list have been made; R.L.c. 12, § 85; and after re-assessments; R.L.c. 12, § 86. If a warrant were issued under R.L.c. 12, §§ 85 or 86, the statement in the form authorized by St. 1888, c. 390, 570, § 96, form 14, and by R.L.c. 13, § 87, form 14, is not strictly accurate.
The plaintiff's mortgage contained a covenant that the premises were free of incumbrances. The tax deed here in question was a valid one and was in existence at the date of that deed. The defendant has a right to retain the sum paid for extinguishing it. See also R.L.c. 134, § 19.
Judgment for the defendant.