G. L. c. 60, § 44]

SECTION 44. The collector may adjourn the sale from time to time not exceeding seven days in all, and shall give notice of every adjournment by a public declaration thereof at the time and place appointed for the sale.

Under the Revised Statutes of 1836 the collector was authorized to sell only such portion of the land as was sufficient to pay the taxes and charges, unless the land was so situated that it could not be conveniently divided without injury to the residue. If he was obliged to sell more than enough to satisfy the taxes and charges, it was provided that he should pay over the residue of the proceeds to the owner. In this state of the law it was held that a tax sale was void when a portion of the land only was sold and it did not appear by the collector's deed or otherwise that the parcel could not have been further divided and the necessary sum raised by a still smaller portion without causing injury to the residue of the property.1

By the General Statutes the collector might sell enough of the land or of its rents and profits to pay the tax and charges, or sell the whole or any portion of the land and return the surplus to the owner. This provision was continued in the Public Statutes and in the codification of 1888 without substantial change, and while it was in force it was held to be wholly optional with the collector whether to sell the whole or a part of an estate.2 Under these statutes the practice grew up of selling an undivided portion of the estate and was followed more or less extensively until 1878 when the supreme court decided that such a sale was unauthorized by the statutes then in force. The legislature at once passed an enactment attempting to validate sales already made in accordance with this practice, but the statute was held to be unconstitutional.*

3

Controversies occasionally arose regarding the disposition of the surplus. It was held that a tax sale was not invalid because the collector expressed a wish that no one would bid more than the amount of the tax and charges on account of the inconvenience of disposing of the surplus. It was also held that the

1 Crowell v. Goodwin, 3 Allen 535 (1862).

2 Southworth v. Edmands, 152 Mass. 203 (1890).

3 Wall v. Wall, 124 Mass. 65 (1878).

4 Forster v. Forster, 129 Mass. 559 (1880).

5 Southworth v. Edmands, 152 Mass. 203 (1890).

[G. L. c. 60, § 44 collector need not at his peril divide the surplus among the holders of different interests and estates in the land or mortgages and liens upon it, but that the "owner" within the meaning of the statute was the holder of the legal title at the time of the sale or a mortgagee to whom it had been assessed." The holders of the various legal and equitable interests in the land might follow the proceeds in equity."

In 1900 the statute was put in substantially its present form, and the collector sells the smallest undivided interest that will bring enough to pay the tax and charges or the whole if necessary. In no case is there any surplus to return to the owner. Any doubt which may have existed upon this point was removed by the phraseology adopted in the General Laws. If no one offers to take an undivided portion the first person who makes a bid to take the whole gets the title.

8

Land cannot be sold for a greater amount than is due. While the validity of a tax sale cannot be questioned merely because the tax as assessed and committed to the collector was excessive in amount or levied in part for an unlawful purpose," yet if the collector sells the land for a tax in excess of that assessed,10 or includes items of interest 11 and costs 12 not warranted by law, the sale is void. When land is advertised to be sold at the same time and place for the taxes of two successive years, the property may be lawfully sold separately for each of the two taxes;13 or sold singly for both.14

When a tax sale is valid the purchaser gets not only a new and paramount title, but a seisin at the moment of conveyance; and formerly possession was presumed to follow the title.15 Since the enactment of the General Laws however it has been provided that the purchaser shall not have right of possession until two years after the sale.16 Whether the sale is valid or not, if it 6 Worcester v. Boston, 179 Mass. 41 (1901).

7 Cummins v. Christie, 179 Mass. 74 (1901).

8 Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914).

9 G. L. c. 59, § 82, supra page 311.

10 Shurtleff v. Potter, 206 Mass. 286 (1910). So also, if part of a tax has been paid and the collector sells for the whole tax instead of for the balance, the sale is void. Hurd v. Melrose, 191 Mass. 576 (1906).

11 Kelly v. O'Rourke, 232 Mass. 168 (1919).

12 Koch v. Austin, 225 Mass. 215 (1916).

13 Keen v. Sheehan, 154 Mass. 208 (1891).

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

15 Perry v. Lancy, 179 Mass. 183 (1901).

16 St. 1918, c. 247, § 49, now G. L. c. 60, § 45, infra page 357.

G. L. c. 60, 45]

appears to be valid on its face the purchaser gets such a title as to be the record owner to whom subsequent taxes should be assessed.17

The validity or effect of a sale for non-payment of taxes may under some circumstances be affected by the conduct or relations of the parties. It would seem that if the owner was present at the sale and expressed a wish that it should proceed he might be afterward estopped from contesting the validity of the sale; but if there were several owners and not all were present such conduct on the part of those who were present could have no effect; they could not waive the rights of the others; and the sale cannot be good in part and bad in part, and if not wholly valid is wholly invalid.18

If a person who is bound to pay the taxes purchases the land at the sale, his act simply amounts to the payment of the taxes and gives him no better or more paramount title than he had before.1 A mortgagee in possession cannot obtain a tax title that will defeat or diminish the mortgagor's right to redeem from the mortgage; 20 and if a mortgagor acquires a tax title it enures to the benefit of the mortgagee." A life tenant or one who purchases his estate cannot by buying the tax title acquire any adverse rights against the remaindermen; but such a purchaser may afterward acquire an independent title by a conveyance from the grantees at the sale for non-payment of the tax of a subsequent year.2

22

The Collector's Deed

SECTION 45. The collector shall execute and deliver to the purchaser a deed of the land, stating the cause of sale, the price for which the land was sold, the name of the person on whom the demand for the tax was made, the places where the notices were posted, the name of the newspaper in which the advertisement of the sale was published, and the residence of the grantee, and shall contain

17 Welsh v. Briggs, 204 Mass. 540 (1910).

18 Reed v. Crapo, 127 Mass. 39 (1879).

19 Home Savings Bank v. Boston, 131 Mass. 277 (1881); Hurley v. Hurley, 148 Mass. 444 (1889); Solis v. Williams, 205 Mass. 350 (1910).

20 Walsh v. Wilson, 130 Mass. 124 (1881).

21 Coughlin v. Gray, 131 Mass. 56 (1881); Holbrook v. Brown, 214 Mass. 542 (1913); Federal Trust Co. v. Bristol County St. Ry. Co., 218 Mass. 367 (1914).

22 Solis v. Williams, 205 Mass. 350 (1910).

[G. L. c. 60, § 45 a warranty that the sale has in all particulars been conducted according to law. The deed shall convey the land to the purchaser, subject to the right of redemption. The title thus conveyed shall, until redemption or until the right of redemption is foreclosed as hereinafter provided, be held as security for the repayment of the purchase price, with all intervening costs, terms imposed for redemption and charges, with interest thereon, and the premises conveyed shall also be subject to and have the benefit of all easements and restrictions lawfully existing in, upon or over said land or appurtenant thereto when so taken. Such deed shall not be valid unless recorded within thirty days after the sale, and if so recorded it shall be prima facie evidence of all facts essential to the validity of the title thereby conveyed, and this provision shall apply to deeds executed before as well as since July first, nineteen hundred and fifteen. No sale hereafter made shall give to the purchaser any right to possession of the land until the expiration of two years after the date of the sale.

The section relating to the collector's deed has not been materially modified since 1785 except to make it conform to the various changes of the substantive law relating to the estate transferred by the sale. In 1901 a provision was added at the end of the section that at the expiration of five years from the date of record a collector's deed should be prima facie evidence of the facts recited therein; in the following year this provision was stricken out and it was replaced in much its present form in 1911. In 1905 the clause exempting easements and restrictions from the destructive effect of a tax sale was inserted - a beneficial provision, for as the law previously stood an owner might rid himself of restrictions by a collusive tax sale of which the persons for whose benefit the restrictions were imposed would probably be unaware until too late. In 1915 provision was made for altering the form of the deed in accordance with the change in the substantive law by which foreclosure of a tax title was made necessary before an absolute title passed

1 It was said by the court in Conners v. Lowell, 209 Mass. 111 (1911), that adherence to the somewhat strict rules which had been established as to tax deeds had assumed a new importance in view of the sweeping provision of the statute (St. 1911, c. 370) that such deeds when recorded were prima facie evidence of all acts essential to their validity. The statute means that when there is no affirmative extrinsic evidence affecting the regularity of the assessment and levy, the recitals in the collector's deed are to be taken as true. Isbell v. Greylock Mills, 231 Mass. 233 (1918).

G. L. c. 60, § 45]

2

to the purchaser. When the General Laws were enacted this section was redrafted so as to make it clear that a tax title is a new and paramount title; that the deed is prima facie evidence of all facts essential to the validity of the title and not merely of those facts which are necessarily recited therein; and that the purchaser has no right of possession until two years have elapsed from the date of the sale.3

A tax deed, when not in the language of the statute, must set out either in precise phrase or by fair intendment to a reasonable certainty a statement of performance of all those acts which are essential to the existence of a legal cause of sale; but if the conditions precedent to a valid sale have actually been complied with, the statement in the deed of the cause of sale need be made only with reasonable certainty." A slight and immaterial misnomer of the owner will not invalidate the deed; but a failure to state the residence of the grantee or the name of the newspaper in which the notice of the sale was published was held to be fatal under the strict requirements of the earlier statute;' such omissions would not necessarily now be thought substantial or misleading.

2 St. 1915, c. 237.

3 In the statute as it previously stood it provided that the deed should convey merely all the right and interest of the owner. It had been held that this provision was not intended to cut down the effect of a sale as passing a paramount title, Langley v. Chapin, 134 Mass. 82 (1883), but merely to declare that the effect of the sale was not diminished by an intervening alienation; but the phraseology was misleading and was widely changed. The provision in the statute of 1911 that a deed was prima facie evidence of the facts essential to its validity was held in Welch v. Haley, 224 Mass. 261 (1916) to apply only to facts necessarily recited in the deed; and the phraseology of the statute was changed to avoid the effect of this decision. Prior to 1915 a purchaser at a tax sale undoubtedly had the right to take possession of the property immediately, Perry v. Lancy, 179 Mass. 183 (1901) but since 1915, when it was provided that a tax title was only security until the right of redemption was foreclosed, it was open to some doubt whether the purchaser was entitled to possession at once. The statute makes it clear that he is not.

4 Harrington v. Worcester, 6 Allen 576 (1863); Reed v. Crapo, 127 Mass. 39 (1879); Langdon v. Stewart, 142 Mass. 576 (1886); Downey v. Lancy, 178 Mass. 465 (1901). A deed is invalid as not correctly stating the name of the person on whom the demand was made, if the person designated was dead at the time of the alleged demand and the fact of his death appeared in the probate records. Fuller v. Fuller, 228 Mass. 441 (1917).

5 Adams v. Mills, 126 Mass. 278 (1879); Pixley v. Pixley, 164 Mass. 335 (1895); Charland v. Home for Aged Women, 204 Mass. 563 (1910); Connors v. Lowell, 209 Mass. 111 (1911).

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

7 Lunenburg v. Walter Heywood Chair Co., 118 Mass. 540 (1875); Knowlton v. Moore, 136 Mass. 32 (1883); Conners v. Lowell, 209 Mass. 111 (1911).