8 [G. L. c, 60, § 46 The deed to be valid must be acknowledged, and recorded within thirty days of the sale, and must contain a description of the land sufficiently accurate for identification; but a slight error which does not make the description uncertain does not invalidate the deed.10 If the deed by mistake conveys less than the whole parcel it cannot be sustained as a valid conveyance of the land actually described in the deed, for the collector has now no authority to sell less than than the whole or an undivided part of the whole." So also a sale cannot be lawfully made of any larger estate than was advertised.12 12 The grantee of the deed must be the purchaser at the sale; even if the purchaser assents to a change and the collector complies, the deed is invalid, for the collector cannot lawfully convey a title in any other way that that which the law prescribes.13 To establish a valid title, the purchaser must pay the amount bid within twenty days of the sale.11 Reimbursement of Purchaser at Invalid Sale SECTION 46. If it subsequently appears that, by reason of error, omission or informality in the assessment or the sale, the purchaser has no claim upon the property sold, he may within six months after the date of the deed, offer by writing given to the collector to surrender and discharge his deed or to assign and transfer to the town all his right, title and interest in the premises, as the collector shall elect. Such offer shall contain a specific statement of the reason why the holder has no claim on the land sold, with the evidence on which he relies, and if such evidence consists of any public record or of facts shown therein, such offer shall contain a specific reference thereto. Upon such surrender and discharge or assignment and transThompson, 10 Pick. 359 (1835); Powers v. Radding, 225 Mass. 8 Tilson v. 110, 114 (1916). 9 Hill v. Mowry, 6 Gray 551 (1856); Todd v. Lunt, 148 Mass. 322 (1889); Roberts v. Welsh, 192 Mass. 278 (1906); Conners v. Lowell, 209 Mass. 111 (1911). A description of land by its lot number on a plan recorded in the registry of deeds, and referring to the volume and number of the plan, is sufficient, Welch v. Haley, 224 Mass. 261 (1916); and the same rule applies when the plan referred to is recorded in the assessors' office, though not in the registry of deeds. Larsen v. Dillenschneider, 235 Mass. 56 (1920). 10 Roberts v. Welsh, 192 Mass. 278 (1906); Welsh v. Briggs, 204 Mass. 540 (1910). 11 Roberts v. Welsh, 192 Mass. 278 (1906). 14 G. L. c. 60, § 49, infra, page 363. G. L. c. 60, § 46] fer, the town shall pay to the purchaser the amount which he paid, with interest at the rate of eight per cent per annum, which payment shall be in full for all damages for any defects in the proceedings or under the warranty in such deed. No town and no treasurer or collector thereof shall pay or be liable for any amount due under this section unless such statement is filed. Prior to the enactment of this statute a purchaser of a tax title which subsequently proved invalid had no remedy against the city or town; and whatever right such purchaser now has depends upon the statute.1 A person who is named as grantee in the collector's deed and who paid the consideration is a "purchaser " within the meaning of the statute, although he was not the purchaser at the sale and was not entitled to receive the deed; but the owner of the property sold cannot be such a "purchaser," for a sale to him amounts to no more than a payment of the taxes. A mortgagee may become a "purchaser" before foreclosure but not afterward.* A purchaser who has conveyed away his interest in the premises cannot maintain the action provided by this section. While the statute presupposes that the deed is invalid, the city or town. is not obliged to repay the money without obtaining the deed. To entitle the purchaser to maintain the action the error, omission or informality must be such a one as to legally avoid the sale; mere concession by the purchaser that he has no claim upon the property sold is insufficient. The action however can be maintained without evidence of ouster or disturbance." The offer to surrender must contain a specific statement of the defect in the title, and a statement that there are many errors, omissions and informalities in the assessment, deed and sale of the property is insufficient. So also a statement naming every possible defect that might render any tax title invalid without specifying the ones upon which the purchaser relies is 1 Lynde v. Melrose, 10 Allen 49 (1865); Williams v. Dedham, 207 Mass. 412 (1911). 2 Spring v. Cambridge, 199 Mass. 1 (1908). 3 Home Savings Bank v. Boston, 131 Mass. 277 (1881). 4 Home Savings Bank v. Boston, 131 Mass. 277 (1881). 5 Spring v. Cambridge, 199 Mass. 1 (1908). Lynde v. Malden, 166 Mass. 244 (1896). 7 Spring v. Cambridge, 199 Mass. 1 (1908). 8 Lynde v. Malden, 166 Mass. 244 (1896). [G. L. c. 60, § 47 not a compliance with the statute." As there is no provision of law requiring the collector to make the receipt of an offer to surrender a matter of record, it is advisable for persons filing such an instrument to adopt some certain means of proving the fact of filing and the date of the offer in case it becomes necessary to establish these circumstances in court. The city or town cannot set off taxes due on estates which the plaintiff owned at the date of the writ from the claim for reimbursement under this section.10 The interest under this sction should be computed to the date of the judgment.1 11 It was formerly at the rate of ten per cent, but it was reduced to eight per cent in 1909. The remedy against the city or town provided by this section of the statute is exclusive, and a purchaser of a defective tax title who has made no offer to surrender his deed to the city or town within two years of the sale cannot maintain an action against the collector for breach of the warranty that the sale was in all particulars conducted according to law.12 If the purchaser of a defective tax title seasonably offers to surrender or assign it, it is the duty of the collector to elect between the surrender and an assignment within a reasonable time, and failure to do so is equivalent to a refusal, and the purchaser can recover from the city or town the amount provided by statute." Statement of Purchaser's Residence SECTION 47. Whoever has a title to land under a sale for nonpayment of taxes or other assessment and is a resident of the town where such land lies shall file with the treasurer thereof and in the registry of deeds a statement of his residence and place of business, with the street and number, if any. Such person, who is not a resident of such town or who removes therefrom, shall appoint an agent residing therein, or in the town where the tax deed is recorded, authorized to release such land. He shall also file the statement above required in which he shall also state the name of such agent and his residence and place of business, with the street and number, if any. 9 Rogers v. Cambridge, 227 Mass. 378 (1917). 10 Home Savings Bank v. Boston, 131 Mass. 277 (1881). 11 Slocum v. Boston, 129 Mass. 567 (1880). 12 Williams v. Baker, 209 Mass. 92 (1911). 13 Spring v. Cambridge, 212 Mass. 296 (1912). G. L. c. 60, §§ 48, 49] Whenever a person holding a tax title changes his residence or place of business or agent, he shall file a new certificate. Tender of payment to, and service of process upon, such agent shall be a sufficient tender to, or service upon, the holder of such tax title. The repeal of this section was recommended by the commission which prepared the consolidation of the General Laws, on the ground that by reason of the change in the method of establishing tax titles it had become obsolete;1 but the legislature declined to follow this recommendation and it would seem that the statute may still be of some service. Failure on the part of a purchaser to file the statement of his residence required by the statute does not render the sale invalid or preclude the assessors from asssessing the land to such purchaser for subsequent taxes; but it does result in a limitation of the purchaser's rights as against the owner, to the extent at least of justifying a court of equity in permitting a redemption after the expiration of two years from the sale if the other circumstances are such that justice requires such action and proceedings to foreclose the tax title have not been instituted in the land court. So also, failure of the purchaser to file the statement may, with other grounds, excuse the owner from making tender to the purchaser.* Purchase by the City or Town SECTION 48. If at the time and place of sale no person bids for the land offered for sale an amount equal to the tax and charges, and if the sale has been adjourned one or more times, the collector shall then and there make public declaration of the fact; and, if no bid equal to the tax and charges is then made, he shall give public notice that he purchases for the town by which the tax is assessed said land as offered for sale at the amount of the tax and the charges and expenses of the levy and sale, which amount shall be allowed him in his settlement with such town. SECTION 49. If the purchaser fails to pay the collector within twenty days after the sale the amount bid by him, the sale shall be 1 Preliminary Report, p. 115. 2 Conners v. Lowell, 209 Mass. 111 (1911). 3 Davidson v. Stafford, 210 Mass. 145 (1911); Glazier v. Everett, 224 Mass. 184 (1916). 4 McNeil v. O'Brien, 204 Mass. 594 (1910). [G. L. c. 60, § 50 void, and the town shall be deemed to be the purchaser of the land, under the preceding section. Section forty-eight was modified in the enactment of the General Laws so as to make it clear that the collector cannot bid in the land for less than the tax and charges. The adjournment of the sale which justifies the collector in purchasing the land for the town must apparently be to a different day; an adjournment for a "spell" on the same day is insufficient." If the purchaser at the tax sale does not pay the collector within the specified time the collector has no option but must make a deed to the city or town. A deed to the purchaser under such circumstances is void. To establish a valid tax title in an individual purchaser it must appear affirmatively that he paid the amount bid within twenty days of the sale; but the dates of execution and acknowledgment of the tax deeds may in themselves warrant an inference that such payment was made.* Recitals in Deed to Town SECTION 50. If the town becomes the purchaser, the deed to it, in addition to the statements required by section forty-five, shall set forth the fact that no sufficient bid was made at the sale or that the purchaser failed to pay the amount bid, as the case may be, and shall confer upon such town the rights and duties of an individual purchaser. The deed to a city or town is void if it does not contain the statements required by law in deeds from the collector to individual purchasers.1 By a deed from a collector to a city or town the municipality takes the same title as would an individual purchaser at a tax sale, and it was formerly held that after the sale and deed the former owner had no right of possession against the municipality. Under the present law however 1 St. 1918, c. 257, § 50. 2 Oakham v. Hall, 112 Mass. 535 (1873). When that case was decided however adjournments could lawfully be made only from day to day. 3 Holt v. Weld, 140 Mass. 578 (1886). |