[G. L. c. 60, § 37 sequent to the assessment, the lien shall continue for ninety days after a release, notice or disclaimer, under sections eighty-two to eighty-four, inclusive, has been duly recorded, or for ninety days after the sale or taking has been finally adjudged invalid by a court of competent jurisdiction. There shall be no lien for taxes re-assessed if the property is alienated before the reassessment. Said taxes, if unpaid for fourteen days after demand therefor, may, with said charges and fees, be levied by sale of the real estate, if the lien thereon has not terminated No tax title shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading.

Several separate parcels of real estate taxable to one person are not an integral subject of taxation so that one parcel can be sold for taxes on the whole. Whether the contiguous land of one owner is a single parcel or several separate parcels is a question of fact, not always easy to decide; but if the lands are assessed as separate parcels the tax upon them cannot be treated as a single one for purposes of collection by sale. Even if the assessors assess the lands of one owner as a unit, if the lands are in fact separated by the use or purpose to which they are devoted, or by their mode of occupation, or are disconnected in location, a tax laid generally cannot be made a lien upon each separate parcel.2

The lien for the payment of taxes is upon the land itself rather than upon the estate or interest of the person assessed. A sale of land for non-payment of taxes gives a paramount title, free from the ownership or encumbrance of rights previously existing which had been carved out of the property by an owner or acquired in it by prescription or otherwise.3 Thus if a tax sale of mortgaged land takes place, the mortgage is wiped out, even if the land was assessed to the mortgagor. So also as

1 Hayden v. Foster, 13 Pick. 492 (1833); Barnes v. Boardman, 149 Mass. 106 (1889); Phelps v. Creed, 231 Mass. 228 (1918).

2 Jennings v. Collins, 99 Mass. 29 (1868); Boston Rubber Shoe Co. v. Malden, 216 Mass. 508 (1914). As to what constitutes a separate parcel in proceedings to assess damages to land by a taking for the public use, see Wellington v. Boston & Maine Railroad, 158 Mass. 185 (1893), 164 Mass. 380 (1895); Lincoln v. Commonwealth, 164 Mass. 368 (1895).

3 Langley v. Chapin, 134 Mass. 82 (1883); Hunt v. Boston, 183 Mass. 303 (1903); Weeks v. Grace, 194 Mass. 296 (1907); Davis v. Allen, 224 Mass. 551 (1916).

4 Parker v. Baxter, 2 Gray 185 (1854); Coughlin v. Gray, 131 Mass. 56 (1881).

G. L. c. 60, § 37]

between taxes of successive years, the latest is paramount.5 For practical reasons an exception was made to the literal application of this rule in 1905 when it was provided that the land should be sold subject to and with the benefit of easements and restrictions upon or appurtenant to it.

The lien comes into existence on the first day of April in the year that the tax is assessed, and constitutes an encumbrance at once, although the tax is not committed to the collector or even actually assessed until later in the year. The lien continues until the tax is paid or the land is alienated; and it continues for two years from the first day of October in the year in which the tax is assessed whether the land is alienated. or not. If there has been no alienation the lien is equally effective after the expiration of two years as before." After notice of a tax sale has been given no subsequent alienation can defeat the lien.10

There can be no lien for taxes re-assessed if the property is alienated before the re-assessment. A sale of mortgaged land under a power in the mortgage constitutes such alienation;" but a mere entry to foreclose a mortgage does not, even when the mortgagee remains in possession.12

The provision that there might be a re-assessment within ninety days after a tax title had been conceded or adjudicated to be invalid was first added in 1915,13 but in such way as to impose a possible personal liability on the purchaser of land subject to an invalid tax lien. This probably unconstitutional

5 Chadwick v. Cambridge, 230 Mass. 580 (1918).

6 St. 1905, c. 193, now G. L. c. 60, § 45, infra page 357. So also a sale for non-payment of taxes not accompanied by even momentary possession, followed by a quitclaim of the tax title to the record owner, occurring during a period of twenty years' adverse possession by another did not, at least prior to the statute validating a conveyance by a disseizee (St. 1891, c. 354; G. L. c. 183, § 7) defeat the acquisition of title by the disseizor. Harrison v. Dolan, 172 Mass. 395 (1899).

7 Cochran v. Guild, 106 Mass. 29 (1870); Hill v. Bacon, 110 Mass. 387 (1872); Newcomb v. Wallace, 112 Mass. 25 (1873); Davis v Bean, 114 Mass. 358 (1874). 8 Hayden v. Foster, 13 Pick. 492 (1833).

9 Abbott v. Frost, 185 Mass. 398 (1904) overruling suggestion in Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444 (1884) that after two years only the interest in the property of the person assessed could be sold.

10 Abbott v. Frost, 185 Mass. 398 (1904).

11 Davis v. Boston, 129 Mass. 377 (1880).

12 Market National Bank v. Belmont, 137 Mass. 407 Boston Five Cents Savings Bank, 137 Mass. 444 (1884). assessment, G. L. c. 59, § § 77, 78, supra page 306.

13 St. 1915, c. 237, § 17.

(1884); Sherwin v. See also as to re

[G. L. c. 60, §§ 38-40 inc. feature of the law was omitted in the recent consolidation of the General Laws.14

Demand on Mortgagee or at Designated Place

SECTION 38. If a mortgagee of land situated in the place of his residence, before September first of the year in which the tax is assessed, gives written notice to the collector that he holds a mortgage on land, with a description of the land, the demand for payment shall be made on the mortgagee instead of the mortgagor.

SECTION 39. If a mortgagee or an owner of land causes a notice, designating a place in the town where such land lies at which all papers relative to taxes on such land which are to be served on him may be left, to be recorded in January of any year in the office of the clerk of such town and, during said month, to be delivered to the collector thereof, the collector shall serve at such place any notice, summons, demand for payment or other paper relating to the taxes on such land which is to be served by him. The collector shall not advertise the sale of such land for two months after the time of a demand so made.

These two sections illustrate the effort that is made throughout the statutes relating to the sale of land for non-payment of taxes to make it impossible for a mortgagee or a non-resident owner of land to lose his land without his knowledge by reason of the default of some one else in the payment of taxes. It will be seen that such a person if he exercises reasonable diligence is amply protected.

Publication and Posting of Notice of Sale

SECTION 40. The collector shall give notice by publication of the time and place of sale of land for non-payment of taxes. Such notice shall contain a substantially accurate description of the several rights, lots or divisions of the land to be sold, which shall be furnished to the collector by the assessors upon demand of the collector, the amount of the tax assessed on each, and the names of all owners known to the collector. Such notice of the sale of the undivided real estate of a deceased person assessed to his heirs or devisees or assessed in general terms to his estate shall contain the names of all

14 St. 1918, c. 254, § 46. See Preliminary Report of Commissioners, p. 111.

G. L. c. 60, §§ 41, 42]

the heirs or devisecs interested in such real estate, if the probate records of the county where the land lies disclose their identity.

SECTION 41. If land to be sold is situated in a town the name of which has been changed by law within three years preceding the sale, the collector shall designate such town in his notices of the sale by both its former and existing name.

SECTION 42. The collector shall, three weeks before the sale, post a notice similar to that required by section forty in some convenient and public place.

The "publication " referred to in this section is of course the publication in a newspaper as defined in the first section of this chapter.1

The requirements of this section are pretty rigidly enforced. The object of the notice is to inform the owner, whether his land is taxed to him or to an occupant, as well as the public generally, that it is to be sold. The notice should be sufficiently definite to enable the owner and those who attend the sale as prospective purchasers to identify the premises, so that either the owner may prevent the sale by the payment of the tax, or, if a sale takes place, bidders will be attracted and will compete for the purchase of the land. The formalities of a technical survey are not required and a slight misdescription will not invalidate the sale, but the purpose of the statute plainly is that the taxpayer and the bidder alike, with the description as published in hand, can from its contents substantially locate the land which it is proposed to sell. A description in the notice which fails to comply with these requirements renders the whole proceedings void. Similarly sales have been invalidated because the notice stated incorrectly the year for which the tax was assessed,* or the amount of the tax, or, when land was to be sold for the

5

1 Supra page 319. The advertisement must be printed in English in a newspaper printed in English.. Connors v. Lowell, 209 Mass. 111 (1911).

2 Williams v. Bowers, 197 Mass. 565 (1908). A description by reference to a lot by number on a plan recorded in the assessors' office is sufficient, although the plan was not recorded in the registry of deeds. Larsen v. Dillenschneider, 235 Mass. 56 (1920).

3 Farnum v. Buffum, 4 Cush. 260 (1849); Williams v. Bowers, 197 Mass. 565 (1908). A description is insufficient although it refers to lots on a recorded plan if it merely states that the land to be sold is a certain number of feet, being part of such lots. McDonough v. Everett, 237 Mass. 378 (1921).

4 Knowlton v. Moore, 136 Mass. 32 (1883).

5 Alexander v. Pitts, 7 Cush. 503 (1851); Shurtleff v. Potter, 206 Mass. 286 (1910).

[G. L. c. 60, § 43 taxes of two successive years, stated the total amount due as a lump sum. How far these decisions are affected by the statute of 1915 providing that no error in the proceedings of the collector shall affect the validity of a tax title unless it is substantial or misleading is an interesting question which cannot yet be answered authoritatively. Even before the statute it was held that if a notice states incorrectly something it is not required to state at all, if it is otherwise not misleading, the error does not invalidate the sale."

If the notice advertises that the sale will be conducted in a manner not authorized by law, but in fact the sale is carried out in a lawful manner, the sale is none the less invalid; for a - valid notice is a condition precedent to the validity of the sale." It was held in an early decision that a tax sale was not invalid because the notice failed to state the hour of the sale; but in view of the authorized forms it would seem that the law would be otherwise now unless it was thought that such an irregularity was neither substantial nor misleading.

Posting of the notice of a sale in some convenient and public place, as well as its publication in a newspaper, is a condition precedent to the validity of the sale; and unless there is satisfactory affirmative evidence that the notice was duly posted the sale is invalid.10

Conduct of the Sale

SECTION 43. If the taxes are not paid, the collector shall, at the time and place appointed for the sale, sell by public auction, for the amount of the taxes and necessary intervening charges, the smallest undivided part of the land which will bring said amount, or the whole for said amount, if no person offers to take an undivided part; and may at such sale require of the purchaser an immediate deposit of such sum as he considers necessary to insure good faith in payment of the purchase money, and, on failure of the purchaser to make such deposit forthwith, the sale shall be void and another sale may be made as provided in this chapter.

6 Lancy v. Snow, 180 Mass. 411 (1902).

7 Alvord v. Collin, 20 Pick. 418 (1838).

8 Wall v. Wall, 124 Mass. 65 (1878). See also Sanford v. Sanford, 135 Mass. 314 (1883), to same effect. St. 1878, c. 229, validating such sales already made was held unconstitutional in Foster v. Foster, 129 Mass. 559 (1880). 9 Colman v. Anderson, 10 Mass. 105, 115 (1813).

10 Farnum v. Buffum, 4 Cush. 260 (1849).