G. L. c. 60, §§ 51-53 inc.]

the city or town would have no right of possession until after the expiration of two years from the sale.3

Sale of Parcels of Small Value

SECTION 51. If unimproved and unoccupied land does not exceed four thousand square feet in area, or is laid out in lots or parcels no one of which exceeds such area, and the taxes unpaid for any one year do not exceed fifty cents on such land, or on any such lot or parcel thereof, the collector may give notice of the sale by publication of an advertisement stating the name of the owner of record of each lot on April first of the year of assessment, the tax due thereon. and the number of such lot on a street, way or plan, without further description thereof. The collector may convey in one deed to the same purchaser or convey to the town any number of the lots so advertised and sold, and said deed shall state the name of said owner of record of each lot conveyed therein, on April first of said year, the amount of the taxes and costs due for each lot, and the number on the street, way or plan of each lot respectively, and need contain no further description of the lot, owner or amount due. The cost of the sale shall be apportioned equally among all the lots sold, and the cost of the deed shall be apportioned equally among all the lots conveyed thereby.

Management of Lands Bought by Town

SECTION 52. Deeds to a city shall be placed in the custody of its collector, and to a town in the custody of its treasurer. Cities and towns may make regulations for the possession, management and sale of such land and for the assignment of tax titles, not inconsistent with law or with the right of redemption.

Taking of Land for Non-payment of Taxes

SECTION 53. If a tax on land is not paid within fourteen days after demand therefor and remains unpaid at the date of taking, the collector may take such land for the town, first giving three weeks' notice of his intention to exercise such power of taking, which notice may be served in the manner required by law for the service of subpoenas on witnesses in civil cases or may be published, and shall conform to

3 G. L. c. 60, § 45, supra page 357.

[G. L. c. 60, §§ 54-56 inc. the requirements of section forty. He may also post a similar notice under section forty-two.

SECTION 54. The instrument of taking shall be under the hand. and seal of the collector and shall contain a statement of the cause of taking, a substantially accurate description of each parcel of land taken, the name of the person to whom the same was assessed, the amount of the tax thereon, and the incidental expenses and costs to the date of taking, and shall be recorded in the registry of deeds; and title to the land so taken shall thereupon vest in the town, subject to the right of redemption. Such title, and also the title conveyed by a deed or taking under sections seventy-nine to eighty-one, inclusive, shall, until redemption or until the right of redemption is foreclosed as hereinafter provided, be held as security for the repayment of said taxes with all intervening costs, terms of redemption and charges, with interest thereon.

SECTION 55. If land has been so taken there shall be allowed to the collector and added to the tax the charges and fees fixed by section. fifteen.

The taking of land by a city or town for the non-payment of taxes as an alternative method of collection was introduced in 1878, and the statutes which authorize this procedure have remained in force without much modification, except to conform to the change in the character of title acquired by a sale from an absolute title to security becoming absolute on foreclosure which took place in 1915. The same accuracy is required in proceedings for the taking of land for non-payment of taxes as in the case of sales from the same cause.2

Naming of One Record Owner Sufficient

SECTION 56. The assessment, sale or taking may be made in the name of one or more of the record owners at the date of assessment, and if so made, shall, subject to section forty-three, be deemed to be in the name of the owner thereof. Every such sale or taking shall be of the whole estate and not of the undivided interest of any joint. owner thereof.

It is to be noted that this section, in spite of its collocation in the statutes, applies to the assessment as well as to the col1 St. 1915, c. 237, § 2.

2 Hurd v. Melrose. 191 Mass. 576 (1906).

G. L. c. 60, § 57]

lection of taxes, and must be construed in connection with section eleven of chapter fifty-nine. Under the tax statutes, taken as an entire system, when land is owned by tenants in common, the assessment of a tax on the undivided interest of one of the tenants in common is invalid; but an assessment of the tax on the entire parcel may be made on one of the tenants in common; and when there are various easements, estates and interests in or on a parcel of land, an assessment to the general owner is sufficient. The statute however cannot be construed to authorize the assessment of a parcel of land to a person who is not an occupant and whose interest in the land is not of record.5

Under the law as it stood before 1915, the statute authorized the extinction of the record title of a person to an interest in land although he was not assessed and no demand was made upon him, but under the present system the holders of all interests in the land are notified before the right of redemption is finally lost."

Affidavit of Collector

SECTION 57. The affidavit of the collector, deputy collector or disinterested person reciting the proceedings required by law in the sale of land for taxes, with copies of the advertisement and notices. annexed thereto, recorded within three months after such sale in the registry of deeds, shall be competent evidence of demand, notice and service.

This statute does not require an affidavit, but makes it competent evidence. That the proceedings required by law were faithfully carried out may be proved by any other competent evidence, if the affidavit given effect by this section was not filed or turned out to be insufficient.1

1 Supra page 226.

2 Curtiss v. Sheffield, 213 Mass. 239 (1913).

3 McLoud v. Mackie, 175 Mass. 355 (1900).

4 Hunt v. Boston, 183 Mass. 303 (1903).

5 Kerslake v. Cummings, 180 Mass. 65 (1901).

6 McLoud v. Mackie, 175 Mass. 355 (1900); Hunt v. Boston, 183 Mass. 303 (1903).

7 G. L. c. 60, § 66, infra page 380.

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

[G. L. c. 60, §§ 58, 59

Rights of Mortgagors and Mortgagees Against Each

Other

SECTION 58. If proceedings have been commenced for the taking or sale of land for a tax assessed thereon, or if the owner of land has neglected to pay such tax within the year for which it is assessed, the holder of a mortgage thereon may pay such tax, charges and expenses to the collector; and the amount so paid may be added to the mortgage debt.

SECTION 59. If a tax on land is assessed to a mortgagor and mortgagee separately, any part thereof remaining unpaid on January first following its assessment may be paid by either party. If a mortgagee pays a tax, interest or costs thereon which by law or by the terms of the mortgage was payable by the mortgagor, the amount so paid shall be added to the mortgage debt. If it is by law or by the terms of the mortgage payable by the mortgagee, and is paid by the mortgagor, the amount so paid shall be deducted from the mortgage debt unless the parties have, in writing, otherwise agreed.

For the purposes of taxation a mortgagor of real estate is taken to be the owner as long as he remains in possession, and prior to 1881 the mortgagor was assessed for the full value of the land and the mortgagee for the full value of the mortgage debt as personal property. In 1881 provision was made for the assessment of the mortgage to the mortgagee and of the equity of redemption to the mortgagor. In the following year it was provided that the separate assessment need not be made if no statement of the amount of the mortgage was filed with the assessors and since then mortgaged land has been generally assessed to the mortgagor while in possession and the mortgagee's interest has not been assessed.1 In the absence of special provision in the mortgage the obligation to pay the tax assessed in such manner rests upon the mortgagor and the statute printed first at the head of this section establishes a way for the mortgagee to protect his interest in the land and enforce upon the mortgagor the obligation of ultimately paying the tax. In the absence of an agreement by the mortgagor to pay the tax, if the mortgagee was obliged to pay a tax assessed on the mortgagor to protect his security it is very doubtful if an action

1 See G. L. c. 59, § § 11-14, inc., supra pages 226 to 232 inc.

G. L. c. 60, § 59]

would lie against the mortgagor to recover the amount so paid;2 and at any rate a personal judgment against a mortgagor who failed to pay the taxes on the mortgaged property would in most cases be of little value, so that the statutory method is much more effective.

Section fifty-eight, in the form in which it stood prior to the enactment of the General Laws, was however of limited value to a mortgagee, because it gave the right to the mortgagee to pay the taxes and add the amount paid to the mortgage debt only when the mortgagor failed to pay within three months after demand, and demand had been made upon the mortgagee by the collector. In the General Laws the rights of the mortgagee are much better protected.

3

In many instances mortgagees protect themselves with respect to taxes by conditions in the mortgage. Thus it is customary to incorporate in a mortgage as one of its essential conditions. a provision that the mortgagor shall pay all taxes assessed on the mortgaged property. It was held that the statute of 1881 did not affect the conditions of existing mortgages and that with regard to mortgages given since its enactment, the condition of the mortgage was valid and the statutory remedies for the enforcement of the mortgagor's obligation to pay taxes were not exclusive of rights secured by the mortgage itself.* In other words, the provisions of section fifty-eight point out a plain method of protecting his interest which a mortgagee can pursue if he desires; but the remedy is cumulative; the statute was intended for the greater security of the mortgagee and cannot be construed to take away or limit his right to protect his interest in any other manner.

When a mortgage is conditioned upon the payment of taxes by the mortgagor, the tax should be paid before interest upon it begins to run, and if it is not so paid, the mortgagee may

2 Swan v. Emerson, 129 Mass. 289 (1880).

3 Hammond v. Lovell, 136 Mass. 184 (1883).

4 Thus a mortgagee may buy in the property at a tax sale, Home Savings Bank v. Boston, 131 Mass. 277 (1881), or foreclose for non-payment of the tax, Stevens v. Cohen, 170 Mass. 551 (1898), or follow the property in equity if it is turned into money with the tax added to the mortgage debt, Worcester v. Boston, 179 Mass. 41 (1901), or be subrogated in equity, upon payment of the tax, to the collector's lien or to his rights against the personal property of the mortgagor in the hands of a receiver, Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911).

5 Silva v. Turner, 166 Mass. 407 (1896). When a mortgagor agrees to