G. L. c. 60, § 36] suit may be brought more than one year after the date of the bond, for the tax is the debt of the executor or administrator and not of the deceased.3 An executor to be subject to the terms of this statute must have been appointed by a court of this commonwealth; and the "assignee" referred to therein is an assignee under the insolvency laws only; but a collector may proceed in equity against a common law assignee for the benefit of creditors under the provisions of the preceding section.® Under the state insolvency laws, taxes constituted a preferred claim,' and a common law assignment for the benefit of creditors was not valid against subsequent insolvency unless the legal preferences were recognized. The state insolvency laws are suspended while the national bankruptcy law is in force. The state statutes relating to the distribution of insolvent estates of deceased persons and to the settlement of estates by receivers are however still in force and under these statutes taxes constitute a preferred claim. It has been held that, even in the absence of statute, when an estate is in the hands of a receiver appointed by a court of equity, taxes should receive priority.10 Thus to a certain extent the commonwealth and counties, cities and towns therein have a prerogative right to priority in the payment of taxes over the claims of other persons, although this right does not extend so far as to constitute a lien on the property of the person assessed except as provided by the express wording of statutes," or to entitle the collector to follow the property of a person assessed in the hands of a common law assignee for the benefit of creditors,12 except in equity when 2 Dallinger v. Davis, 149 Mass. 62 (1889). 3 Whiton v. Balch, 203 Mass. 576 (1909). 4 Whiton v. Balch, 203 Mass. 576 (1909).* 5 Scollard v. Edwards, 194 Mass. 77 (1907). 6 Boston v. Turner, 201 Mass. 190 (1909). 7 See G. L. c. 216, § 118, cl. 3, infra, page 749. See also the following cases relating to the collection of taxes under the state insolvency laws: Loud v. Holden, 14 Gray 154 (1859); Bent v. Hubbardston, 138 Mass. 99 (1884); Ricker v. Brooks, 155 Mass. 400 (1892). 8 G L. c. 203, § 41. 9 G. L. c. 206, § 31, infra, page 749 c. 198, § 1, infra, page 748. Waite v. Worcester Brewing Co., 176 Mass. 283 (1900); Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911). 10 Jones v. Arena Publishing Co., 171 Mass. 22 (1898). 11 Fuller v. Day, 103 Mass. 481 (1870); McGee v. Salem, 149 Mass. 238 (1889). 12 Scollard v. Edwards, 194 Mass. 77 (1907). [G. L. c. 60, § 37 the obligation to pay taxes is one of the conditions of the assignment.1 13 Under the United States Bankruptcy Act, taxes due to the United States, state, county, district or municipality are preferred claims and are not released by the bankrupt's discharge. It is to be noted that the trustee is bound to pay all taxes owed by the bankrupt whether they have been proved or not;1 and this obligation includes taxes assessed prior to the bankruptcy although not payable until afterward.15 The United States court is not bound by a decision of the state court upon the amount or validity of a tax but may decide such questions upon its own view of the law and facts.16 Interest should be paid on taxes, although ordinary debts do not carry interest after bankruptcy."7 17 A tax may be assessed upon a trustee appointed by the United States court for property of a bankrupt in his hands.18 Although the statute makes no provision for the payment of such taxes it is not construed as exempting the trustee and he is taxable under the provisions of the state statute.19 Such a tax however should be collected through the medium of the United States court, as it would not be permissible for the collector to distrain property in the custody of the court or to arrest the body of one of its officers for a tax assessed upon him in his official capacity.20 Although a tax is not strictly speaking a debt, the collector under our statutes is so far a creditor that he may be permitted to petition a person assessed into bankruptcy.21 COLLECTION BY SALE OR TAKING OF LAND The customary method of collecting taxes upon real estate is to sell the land itself if the person assessed fails to pay the 13 Boston v. Turner, 201 Mass. 190 (1909). 14 In re Harvey, 122 Fed. Rep. 745 (1903); In re Prince & Walter, 131 Fed. Rep. 546 (1904); In re Fisher & Co., 148 Fed. Rep. 907 (1906). 15 New Jersey v. Anderson, 203 U. S. 483 (1906); In re Flynn, 134 Fed. Rep. 145 (1905). 16 New Jersey v. Anderson, 203 U. S. 483 (1906). 17 Matter of Kallak, 147 Fed. Rep. 276 (1906). 18 In re Tyler, 149 U. S. 164 (1893); Swartz v. Hammer, 194 U. S. 441 (1904). 19 G. L. c. 59, § 18, supra, page 237. 20 Swartz v. Hammer, 194 U. S. 441 (1904). 21 In re Fisher & Co., 148 Fed. Rep. 907 (1906); Boston v. Turner, 201 Mass. 190 (1909). G. L. c. 60, § 37] tax within a reasonable time-in practice generally about a year from the demand, and such sales for non-payment of taxes have directly or indirectly given rise to an immense amount of litigation. It should be remembered in the first place that the land itself is not taxed, but the owner or occupant is taxed by reason of his ownership or occupancy.1 Originally taxes upon real estate were collected as other taxes were, by distress or arrest, and the power to sell was first introduced in 1731 as the only available means for collecting the taxes assessed upon the unimproved lands of non-resident proprietors. The tax lien was later extended to lands the owners of which had removed from the town and to some cases of assessments to persons in possession who were not owners. In 1822 taxes on real estate in Boston were made a lien in all cases and two years later the lien was made general throughout the commonwealth. It hardly needs to be stated that the lien lies only upon the parcel taxed and is not a means of enforcing payment of all taxes assessed upon its owner. Such taxes could be enforced upon the land only by attachment or execution in an ordinary civil action by the collector. 3 4 The sale of land for non-payment of taxes is such an extreme interference with the ordinary rights of private property that the law guards the rights of the owner with the utmost care. For many years it was held that the due performance by the collector of every step in the proceedings, even in the most minute particulars, was a condition precedent to the validity of the sale, and that a deviation from the statutory requirements was neither substantial nor misleading and did not harm the owner in the slightest degree was no ground for overlooking it.' 1 Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444 (1884); Richardson v. Boston, 148 Mass. 508 (1889); Dunham v. Lowell, 200 Mass. 468 (1909). 2 Prov. Laws, 1731-32, c. 9. 3 St. 1785, c. 70, § § 6, 15. 4 St. 1821, c. 107, § 9. 5 St. 1823, c. 133, §9; R. S. c. 8, § 18. See further as to the history of tax liens, Curtiss v. Sheffield, 213 Mass. 239 (1913). 6 Hayden v. Foster, 13 Pick. 492 (1833); Jennings v. Collins, 99 Mass. 29 (1868); Barnes v. Boardman, 149 Mass. 106 (1889). Hayden v. Foster, 13 Pick. 492 (1833); Charland v. Home for Aged Women, 204 Mass. 563 (1910). A presumption of validity was however allowed when the validity of a tax sale was contested for the first time many years after it had taken place. Colman v. Anderson, 10 Mass. 105 (1813); [G. L. c. 60, § 37 The result of the application of these principles was that a tax title was extremely precarious; it might be attacked for the omission of or an error in any one of the formal steps required by law, and even if the purchaser enjoyed undisturbed possession, his title was almost unmarketable. Registration of a tax title in the land court was so difficult as to be almost impossible. Moreover there was the uncertain period in which the land might be redeemed, not limited even to six years unless the purchaser had positive proof that the owners of certain interests in the land were notified. On the other hand an owner of the property who had no actual knowledge that it had been sold might lose his right of redemption by mere lapse of time, and without the institution of proceedings against him or the adjudication of any court. The law as to tax titles was thus in a very unsatisfactory condition, until finally in 1915 it was provided that no tax title should be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which were neither substantial nor misleading, and at the same time a radical change in the system of tax sales was made, so that instead of conveying a title which became absolute by mere lapse of time if the owner failed to exercise his right to redeem within a specified period, a tax sale thereafter transferred an interest which did not ripen into a title until the purchaser, by special proceedings in the land court, foreclosed the owner's right of redemption.10 The earlier practices and decisions in respect to tax titles have thus become almost entirely obsolete. The statute which authorized the court to disregard errors which were neither substantial nor misleading applied only to the proceedings of the collector; but the court has never required proof of such strict compliance with the proceedings which oc Pejepscut Proprietors v. Ransom, 14 Mass. 145 (1817); Platt v. Glover, 136 Mass. 115 (1883). The lapse of time establishes presumptively but not conclusively the performance of the essential acts. McDonough v. Everett, 237 Mass. 378 (1921). 8 It was said by Sewall, J., as early as 1813 in the case of Colman v. Anderson, 10 Mass. 105, 111, “The title under which the tenant has been permitted to succeed, so far as to obtain a verdict in support of it, is of that kind almost proverbially denominated a collector's title as expressing a case of doubt and difficulty." In the report of the Special Commission on Liens, Mortgages and Tax Titles (1915, House Doc. No. 1600) it is said (at page 17) that at that time only about two tax titles out of one hundred were, when tested, found to be valid. 9 St. 1915, c. 237, § 17, now in G. L. c. 60, § 37, infra page 349. G. L. c. 60, § 37] curred prior to the receipt of the tax list and warrant by the collector as with those which occurred after its receipt by the collector. Thus technical defects in the appointment of the assessors or the collector do not invalidate a sale; it is sufficient that they are officers de facto. If they exercised their office unopposed it will be assumed that they were duly chosen and A person assessed cannot question the amount of his tax in proceedings involving the validity of the tax sale,12 nor will the sale be held invalid because the assessors failed to comply with merely directory provisions of the statutes.13 If an assessment is so far valid that the person assessed can be compelled to pay it, it is a sufficient basis for the sale of his land.1 On the other hand, if the land was improperly assessed it cannot be lawfully sold, even if the land was assessed in the way it was assessed at the owner's express request.15 Extent and Duration of Lien SECTION 37. Taxes assessed upon land, including those assessed under sections twelve, thirteen and fourteen of chapter fifty-nine, shall with all incidental charges and fees be a lien thereon from April first in the year of assessment. Such lien shall terminate at the expiration of two years from October first in said year, if the estate has in the meantime been alienated and the instrument alienating the same has been recorded, otherwise it shall continue until a recorded alienation thereof; but if while such lien is in force a tax sale. or taking has been made, and the deed or instrument of taking has been duly recorded within thirty days, but the sale or taking is invalid by reason of any error or irregularity in the proceedings sub11 Blossom v. Cannon, 14 Mass. 177 (1817); Welsh v. Briggs, 204 Mass. 540 (1910). 12 Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914). 13 As to what constitutes directory provisions see, G. L. c. 59 § 43, supra 14 Cone v. Forest, 126 Mass. 97 (1879); Westhampton v. Searle, 127 Mass. 502 (1879); Leominster v. Conant, 139 Mass. 384 (1885); Bemis v. Caldwell. 143 Mass. 299 (1887); Southworth v. Edmands, 152 Mass. 203 (1890). The only apparent exception to this doctrine is the rule that an invalid tax on a particular parcel of real estate cannot be the foundation of a valid sale, although the owner was properly assessed upon other parcels and could be compelled to pay the entire amount assessed upon him by distress, arrest or suit. Schwartz v. Boston, 151 Mass. 226 (1890); Sullivan v. Boston, 198 Mass. 119 (1908). This exception is however only apparent, for an owner so assessed could have the tax improperly assessed upon one parcel belonging to him abated, if he took the proper course of action. 15 Curtiss v. Sheffield, 213 Mass. 239 (1913). |