[G. L. c. 60, § 60 proceed to foreclose without waiting for the collector to begin to levy on the land. Under such a mortgage the mortgagee can add the amount paid for taxes, or paid to redeem the land from a tax sale, to the amount of the mortgage in proceedings of every description to enforce his rights in the mortgage; but if he sells the land under a power in the mortgage subject to outstanding tax titles he cannot deduct from the proceeds money. subsequently paid for redeeming the tax titles. A mortgagee cannot, by purchasing the mortgaged land at a tax sale, defeat the right of the mortgagor to redeem the land from the mortgage upon payment of the amount due thereon, which amount would of course include the sum paid by the mortgagee at the tax sale.”

8

As between successive mortgagees, a senior mortgagee who has been obliged to pay a tax assessed to a junior mortgagee while the latter was in possession cannot recover the sum so paid from the person assessed; 10 and a junior mortgagee who pays the tax to prevent foreclosure by a senior mortgagee cannot require the senior mortgagee to repay him the sum so paid if the senior mortgagee forecloses the mortgage on account of another breach of condition by the mortgagor.11

Payment of Taxes by Person Other than the Owner

SECTION 60. If a person other than the owner of the fee rightfully pays the taxes assessed on land to the collector or treasurer, before a taking or sale, the collector or treasurer shall give him a certificate of such payment stating the name of the person to whom the land is. taxed, of the person paying the tax, and a substantially accurate description of the land. Such certificate being recorded in the registry of deeds within thirty days from its date shall be notice to all persons of such payment and of the lien therefor. A person whose tax is paid by another shall upon repaying the same have the same right

pay the tax, it is due at least by November 1, in Boston, Silva v. Turner, 166 Mass. 407 (1896).

6 Stevens v. Cohen, 170 Mass. 551 (1898).

7 Stevens v. Cohen, 170 Mass. 551 (1898); Worcester v. Boston, 179 Mass.

41 (1901); Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911).

8 Skilton v. Roberts, 129 Mass. 306 (1880).

9 Walsh v. Wilson, 130 Mass. 124 (1881); Ccughlin v. Gray, 131 Mass. 56 (1881).

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

11 Pearmain v. Massachusetts Hospital Life Insurance Co., 206 Mass. 377 (1910).

G. L. c. 60, 60]

to recover it from the town, if illegally assessed, which he would have had if the tax had been paid by him under written protest.

This subject divides itself naturally into two parts. (1) When one is obliged to pay taxes assessed on another to save his own property from levy and sale. (2) When one by mistake or by the dishonest act of an agent pays the tax on another's property.

In the first case, so far as the rights of the parties at common law are concerned, it is not sufficient that the property is assessed to another and that as between the collector and the parties. the other party is the one primarily liable for the tax. One who takes a quitclaim deed of property upon which a tax is assessed to the vendor without covenants against incumbrances made or suffered by the vendor and pays the tax to avoid a sale by the collector cannot call upon the vendor to reimburse him,1 and a senior mortgagee who after foreclosure is obliged to pay a tax, assessed on the property to a junior mortgagee while the latter was in possession, cannot recover the amount of the tax from the junior mortgagee. When however the parties have agreed between themselves that one of them is to pay the tax on the property, and the one who has agreed to pay the tax fails to pay it, and the other party is obliged to pay the tax to save his interest in the property from being wiped out by the sale of the land for non-payment of the tax, he can recover the amount so paid in an action at law against the party who agreed to pay the tax. He is also entitled by proceedings in equity to be subrogated to the rights of the collector against the land, or if the other party is insolvent, to the collector's right to prove the tax against such party as a preferred claim.*

3

2

When there are different estates and interests in a parcel of real estate and there is no express agreement among the holders of the different interests in regard to the payment or apportionment of the tax, and the general owner or the occupant to whom the tax on the property is assessed does not pay the tax and the collector is about to levy on the land, the holder of one of the other estates or interests may be obliged to pay the tax to protect

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

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

3 Phinney v. Foster. 189 Mass. 182, 188 (1905).

4 Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911).

5

[G. L. c. 60, § 60 his interest. In such a case he should in justice be allowed to call upon the holders of the other interests for reimbursement or contribution, and as the failure to pay the tax would generally indicate impecuniosity on the part of the person assessed, in most cases the rights of the person paying the tax would not be fully protected without some greater security than a mere personal right of action against the delinquent. Accordingly we find the matter regulated by statute; a tenant may sue his landlord or withhold rent; a mortgagee may add the sum paid to the mortgage; a co-tenant in addition to his general right to sue for contribution is given a lien on the land. In 1902 provision was made which is now contained in section sixty that if any person other than the owner of the fee rightfully paid a tax on land - that is anyone having an interest in the land. other than the general ownership - he was entitled to receive and record a certificate of such payment which should be "notice to all persons of such payment and of the lien therefor." This statute seems on its face to recognize the existence of a lien in all cases of payment of a tax by the holder of an interest other than the fee, as well as in those specifically provided for; but it was probably not intended to establish a lien in cases other than those created by other provisions of law, and its effect is doubtless only to provide a means for recording notice of liens whose establishment was not otherwise provided for." In any event it does not cover the case of a remainderman who is obliged to pay the tax upon the default of a life-tenant, for the remainderman is himself the owner of the fee; but on general equitable principles, if a remainderman pays off an encumbrance he has an equitable lien on the land for contribution.10

If the land is actually sold for non-payment of the tax, the holder of any interest in the land is permitted to redeem;11 and although the statutes make no provision for adjusting the rights

5 For the general principle on which this right is based, see Amory v. Lowell, 1 Allen 504 (1861); Davis v. Bay State League, 158 Mass. 434 (1893). 6 G. L. c. 59, § 15, supra page 233.

7 G. L. c. 60, § § 58, 59, supra page 368.

8 G. L. c. 60, §§ 85, 86, infra page 391. See also Foote v. Cotting, 195 Mass. 55, 63 (1907). For the right of an heir who has paid a tax assessed on the undivided real estate of a deceased person to contribution see G. L. c. 59, § 16, supra page 236.

9 See decision in Salisbury Beach Associates v. Behan, Land Court (1920). 10 Amory v. Lowell, 1 Allen 504 (1861).

11 G. L. c. 60, § 62, infra, page 374.

G L. c. 60, § 61]

of the different owners in such a case, the one who pays the money for redemption is fully protected. He is entitled to hold the tax title for his own benefit until the persons who should have paid all or part of the tax reimburse him for a proportionate part of his expenditure.12

It is well settled that when one who has no interest in land assessed for taxes and is under no obligation to pay the taxes thereon, without the request of the owner pays such a tax, either from mistake or through the dishonest act of his agent, he cannot maintain an action at law against the owner of the land for the amount so paid.13 This rule rests upon well established principles of law, that one is entitled to choose his own creditors, and that one who voluntarily pays another's debts cannot recover the money so paid from the debtor.

In equity however there may be a different rule. In a recent case it was held, not without emphatic dissent, that when the same individual was trustee of two trusts and used the money of one trust to pay taxes on a parcel of land belonging to the other trust, in a suit in equity brought by the succeeding trustee of the first trust against the succeeding trustee of the second, the plaintiff was entitled to a charge on the land for the amount of the tax paid, or to a decree against the defendant for the repayment of the money. How far the principle of this decision would be extended beyond the peculiar facts of the case remains however open to question.

14

Collection of Taxes Subsequent to Sale or Taking

SECTION 61. Whenever a town shall have purchased or taken real estate for payment of taxes the lien of the town on such real estate for all taxes assessed subsequently to the assessment for payment of which the estate was purchased or taken shall continue, and it shall be unnecessary for the town to take or sell said real estate for non-payment of said subsequent taxes, costs and interest; and on either redemption from, or foreclosure of, .the right of redemption.

12 Hurley v. Hurley, 148 Mass. 444 (1889).

13 Massachusetts Mutual Life Insurance Co. v. Green, 185 Mass. 306 (1904) (mistake); Foote v. Cotting 195 Mass. 55 (1907) (dishonest act of agent). One who is wrongfully in possession of land cannot when he is ousted on writ of entry charge the rightful owner for taxes paid. Curtis v. Gay, 15 Gray 36 (1860).

14 Newell v. Hadley, 206 Mass. 335 (1910); Bremer v. Williams, 210 Mass. 256 (1911).

[G. L. c. 60, § 62 under such taking or purchase, said subsequent taxes, costs and interest shall be paid to the town, and the payment shall be made a part of the terms of redemption.

In 1918 it was held that when a city or town becomes a purchaser at a tax sale of land sold by its collector of taxes, it receives a title subject to the later and paramount lien that may arise from taxes assessed after those for the collection of which the sale was made. To avoid the effect of this decision, the foregoing statute was enacted in the following year."

Redemption from Tax Sale

SECTION 62. Any person having an interest in land taken or sold for non-payment of taxes, including those assessed under sections twelve, thirteen and fourteen of chapter fifty-nine, or his heirs or assigns, may, within two years after the taking or sale, redeem the same by paying or tendering to the collector, if the estate has been taken or purchased by the town, the amount of the tax, all intervening taxes, charges and fees, and interest on the whole at the rate of eight per cent per annum; or by paying or tendering to the purchaser, or his legal representatives or assigns, the original sum and intervening taxes paid by him and interest on the whole at said rate. In each case he shall also pay for examination of title and a deed of release not more than three dollars in the aggregate; and in addition thereto the actual cost of recording the tax deed or evidence of taking. He may redeem the land by paying to the collector the sum which he would be required to pay to the purchaser, with one dollar additional.

No person shall knowingly collect or attempt to collect for the redemption of any such land a sum of money greater than that authorized by this section.

This section of the statute brings out clearly the fact that the real purpose of a tax sale is to enable the city, or town to collect quickly the money needed to perform its many public functions and to throw upon the purchaser the duty, accompanied by suitable pecuniary rewards, of making the unwilling and delinquent taxpayer eventually yield up the amount of the

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

2 St. 1919, c. 263.