G. L. c. 59, §§ 9, 10]

assessed may testify himself,22 and he may introduce in his own favor declarations made by himself at the time he was removing or performing some other act affecting his domicile.23 Such declarations accompanying an act are admitted on general principles of the law of evidence as part of the res gestae; but mere declarations not accompanying an act are not admissible in his favor. Past declarations of the person assessed as to his domicile or intentions may be used against him whether they accompanied an act or not, as admissions against interest.25

24

One may if he wishes change his domicile without notifying the assessors of either his new or his old domicile; 26 such a notice is usually given in cases where the change is merely one of intent as a matter of self-protection. That a man is wrongly assessed in another town is no reason that he should not be assessed in the town of his real domicile," and if he is obliged to pay both taxes it is his own fault in not contesting both.

When the boundary line between two towns passes through a dwelling house, the occupant is taken to be a resident of that town in which he performs those functions which characterize a home, such as sleeping, eating, sitting and receiving visitors, sleeping being the most preponderating circumstance.28

It has been held that a partnership may be said to have a 22 Fisk v. Chester, 8 Gray 506 (1857); Wright v. Boston, 126 Mass. 161 (1879).

23 Thorndike v. Boston, 1 Met. 242 (1840); Kilburn v. Bennett, 3 Met. 199 (1841); Cole v. Cheshire, 1 Gray 441 (1854); Monson v. Palmer, 8 Allen 551 (1864); Viles v. Waltham, 157 Mass. 542 (1893); Gardiner v. Brookline, 181 Mass. 162 (1902).

24 Salem v. Lynn. 13 Met. 544 (1847); Wilson v. Terry, 9 Allen 214 (1864); Wright v. Boston, 126 Mass. 161 (1879); Weld v. Boston, 126 Mass. 166 (1879); Pickering v. Cambridge, 144 Mass. 244 (1887).

25 Deeds given by or to the person assessed dated about the time of the assessment in which he is described as of the town in which he was assessed are admissible against him as implied admissions, Weld v. Boston, 126 Mass. 166 (1879); Babcock v. Slater, 212 Mass. 434 (1912); but copies of such deeds are not admissible without notice to the plaintiff to produce the originals, Bourne v. Boston, 2 Gray 494 (1854); Draper v. Hatfield, 124 Mass. 53 (1878). Evidence that plaintiff said he wanted no trouble and would pay half the tax if the town would abate the rest is offer of compromise merely and inadmissible. Draper v. Hatfield, 124 Mass. 53 (1878).

26 Barron v. Boston, 187 Mass. 168 (1905).

27 Harman v. New Marlborough, 9 Cush. 525 (1852). A person taxed for the same property in two towns is not able to throw the burden of the contest on the towns. See Welch v. Boston, 208 Mass. 326 (1911); G. L. c. 60, § 98, infra page 408.

28 Abington v. North Bridgewater, 23 Pick. 170 (1839); Chenery v. Waltham, 8 Cush. 327 (1851).

[G. L. c. 59, § 11 domicile in the place where its business is carried on.29 The domicile of a corporation is the state in which it is organized rather than that in which its principal place of business is situated, so that a foreign corporation cannot have a domicile in this commonwealth.30 There is difficulty in ascribing a domicile in any particular city or town in this commonwealth to a domestic corporation, and although it has sometimes been intimated that the domicile of a corporation was the place with which it was chiefly identified or where its principal place of business was situated and while the difficulties of ascribing a domicile to a corporation are not insuperable, yet partly on account of such difficulties and partly on account of the double taxation which would result, a domestic corporation, it has long been held, is not a resident of any town or city in this commonwealth so as to be taxable for its personal property there.3

31

Where and to Whom Real Estate is Assessed

32

SECTION 11. Taxes on real estate shall be assessed, in the town where it lies, to the person who is either the owner or in possession thereof on April first, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, where the estate lies, as owner on April first, even though deceased, shall be held to be the true owner thereof, and so shall the person so appearing of record under a tax deed not invalid on its face. Real estate held by a religious society as a ministerial fund. shall be assessed to its treasurer in the town where the land lies. Buildings erected on land leased by the commonwealth under section twenty-six of chapter seventy-five shall be assessed to the lessees, or their assignees, at the value of said buildings. Except as provided in the three following sections, mortgagors of real estate shall for the purpose of taxation be deemed the owners until the mortgagee takes possession, after which the mortgagee shall be deemed the owner.

Taxes on real estate are not assessed upon the real estate itself, regardless of ownership, but are assessed upon indi

29 Ricker v. American Loan & Trust Co., 140 Mass. 346 (1885). 30 Boston Investment Co. v. Boston, 158 Mass. 461 (1893).

31 The domicile of a corporation organized by special statute to maintain a cemetery in a certain place is the town in which the cemetery is located, and not the town in which the officers of the corporation perform their duties and the meetings of the corporation are held. Collector of Boston v. Mount Auburn Cemetery, 217 Mass. 286 (1914).

32 G. L. c. 63, § 30, infra page 529.

G. L. c. 59, § 11] viduals by reason of their ownership; and although such taxes constitute a lien upon the land, the primary liability is upon the person to whom they have been assessed. Even in the case of the unimproved woodland of a non-resident, the tax cannot be sustained as one upon the land itself and the naming of the owner be regarded as immaterial. It is not however the policy of the law to require the assessors to tax the different estates and interests which may exist in a certain parcel of land to the respective owners thereof, but instead one person or set of persons is assessed the entire tax on each parcel of land; and such person must be either the owner of the fee or the person in possession of the land. There may be some circumstances under which an easement in gross may be assessable to the holder; and when one estate or interest in a piece of land is exempt from taxation and the others are not it may be proper to assess the latter estates at their own value and not at the value of the land itself;5 but ordinarily the land itself is assessed at its whole value and not the different estates therein. The assessors should however take into consideration easements or restrictions which add to or detract from the fair cash value of the land, when they are brought to their attention, and are bound to assess the land accordingly."

The "owner" is the legal owner of the fee, and even a mere trustee without power of control or management and under covenant to convey as directed, if he holds the legal title to land, is the person to be assessed for it. A tax assessed to one who is neither owner nor in possession is void. A tax on real estate cannot be legally assessed to an "owner unknown" when the assessors can with reasonable diligence ascertain who is in actual possession or by reference to the record have means of knowing

1 Webber Lumber Co. v. Shaw, 189 Mass. 366 (1905); Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911).

2 Stone v. New England Box Co., 216 Mass. 8 (1913).

3 Parker v. Baxter. 2 Gray 185, 189 (1854); Worcester v. Boston, 179 Mass.

41, 48 (1901).

Flax Pond Water Co. v. Lynn, 147 Mass. 31 (1888).

5 Supra page 196.

6 Lodge v. Swampscott, 216 Mass. 260 (1913).

7 Miner v. Pingree, 110 Mass. 47 (1872); Hough v. North Adams, 196 Mass. 290 (1907); Dunham v. Lowell, 200 Mass. 468 (1904).

8 Sargeant v. Bean, 7 Gray 125 (1856); Rossire v. Boston, 4 Allen 57 (1862); Desmond v. Babbitt, 117 Mass. 233 (1875); Stone v. New England Box Co., 216 Mass. 8 (1913).

[G. L. c. 59, § 11

who has the legal title. When there is no person in apparent occupation of a lot of land, it is the duty of the assessors to make inquiry as to its ownership. If with reasonable diligence they cannot obtain trustworthy information they would be justified in taxing it as the property of an unknown proprietor; but they would not thereby acquire the right to tax it to a person who was neither owner nor occupant.1o

The tax should be assessed to the owner of record and the holder of an unrecorded deed should not be considered.11 When there has been a sale for non-payment of a previous tax, the tax should be assessed to the record holder of the tax title, although the right of redemption has not been lost.12 A tax deed good on its face but invalid by reason of an error in the assessment or elsewhere not apparent on the face of the deed is sufficient to justify an assessment to the holder;13 but an assesssment based upon a tax deed invalid on its face is not an assessment to the person appearing of record as the owner and is invalid.1

It was formerly held that a tax on real estate must be assessed to living owners; and assessment to a person deceased who owned the land at his death is illegal and void.1 Since 1889 however the statutes have permitted the assessment of land to the person appearing of record to be the owner, even if deceased. A corporation, domestic or foreign, is taxable for its real estate like an individual owner in the city or town in which the land lies.16

The tax is assessed to the person who was owner or occupant on the first day of April, and it is immaterial that the assessment was in fact made at a subsequent date and that the prop

9 Oakham v. Hall, 112 Mass. 535 (1873); McDonough v. Everett, 237 Mass. 378 (1921).

10 Desmond v. Babbitt, 117 Mass. 233 (1875).

11 Tucker v. Deshon, 129 Mass. 566 (1880).

12 Butler v. Stark, 139 Mass. 19 (1885). When a city or town is the purchaser at a tax sale, the land should be subsequently assessed to the owner of the right of redemption. Infra page 372.

13 Roberts v. Welsh, 192 Mass. 278 (1906); Solis v. Williams, 205 Mass. 350 (1910); Conners v. Lowell, 209 Mass. 111 (1911). This was expressly provided by St. 1915, c. 237, § 23, now included in § 11. In Welsh v. Briggs, 204 Mass. 540 (1910), it was held that if land owned by A and standing in his name in the registry of deeds is assessed to B as the owner of it and is sold for taxes and is bought by C, and afterward the land in question is assessed as the land of C, sold for taxes and bought by D, D gets a good title. 14 Conners v. Lowell, 209 Mass. 111 (1911).

15 Sawyer v. Mackie, 149 Mass. 269 (1889).

16 Tremont Bank v. Boston, 1 Cush. 142 (1848); Dunnell Manufacturing Co. v. Pawtucket, 7 Gray 277 (1856).

G. L. c. 59, § 11]

erty changed hands in the interval." Even when land has been taken by eminent domain after the first day of April, the owner is personally liable for the tax.18 If land is conveyed on the first day of April and the deed then recorded, it may be assessed to either the grantor or the grantee, as there is no point of time, less than the day, at which the tax can be regarded as laid, and it will be sustained by ownership or possession during any part of the day.19

20

Land owned in common must be assessed as one parcel to the tenants in common instead of one undivided half to each; but by statute when there is more than one record owner an assessment may be made in the name of one or more of them and shall be deemed to be made in the name of the owner of the land." Parcels of land owned in severalty by different owners must of course be separately assessed,22 and when lots are owned or occupied by the same person, if they are separated either physically, or by the use to which they are devoted, or by their mode of occupation, a tax laid upon an entire valuation would not be a lien upon each separate parcel.23 Even a vacant piece of land owned by one individual may be assessed in lots instead of as a whole when it appears that a plań dividing it into lots has been made and recorded by the owners and that some of the lots have been sold.24

To justify an assessment to the person in possession there must be an unqualified seisin of the freehold in him or an exclusive occupation under a lease or other agreement or perhaps such an occupation purporting to be under a lease; 25 and the enjoyment of a non-exclusive easement in the land or constructive occupation such as is had by the lessor is not sufficient.20

17 Kearns v. Cunniff, 138 Mass. 434 (1885).

18 Richardson v. Boston, 148 Mass. 508 (1889). 19 Hill v. Bacon, 110 Mass. 387 (1872).

20 Sullivan v. Boston, 198 Mass. 119 (1908); Curtiss v. Sheffield, 213 Mass. 239 (1913).

21 G. L. c. 60, § 56, infra page 366. And see also McLoud v. Mackie, 175 Mass. 355 (1900).

22 Jennings v. Collins, 99 Mass. 29 (1868).

23 Jennings v. Collins, 99 Mass. 29 (1868).

24 Sullivan v. Boston, 198 Mass. 119 (1908).

25 Flax Pond Water Co. v. Lynn, 143 Mass. 31 (1888) (exclusive easement); Southworth v. Edmands, 152 Mass. 203 (1890) (husband as head of family); Bates v. Sharon, 175 Mass. 293 (1900) (life-tenant).

26 Lynde v. Brown, 143 Mass. 337 (1887); Kerslake v. Cummings, 180 Mass. 65 (1901); Hamilton Mfg. Co. v. Lowell, 185 Mass. 115 (1904).