G. L. c. 60, § 62] tax by the imposition of increasing pecuniary penalties finally amounting to forfeiture; in other words that a tax title in spite of its paramount nature is, until the right of redemption is finally lost, in reality a lien, and that the holder of the right of redemption is really the owner of the land. Prior to the enactment of the General Laws of 1921 the right to redeem was in terms granted only to the owner of the land; but the decisions recognized that an owner within the meaning of the statute was not necessarily the true owner, the holder of a perfect title, or even the owner of the fee; but that the term included anyone having a legal interest in the land or in possession under claim of ownership. In the consolidation of the General Laws, the phraseology of the section was modified to conform to the interpretation put upon it by the court.2 3 The right to redeem depends upon ownership of an interest in the land at the time the redemption is sought, rather than at the time the land was assessed, and a person whose title is extinguished or transferred after the sale is not subsequently entitled to redeem. The right of redemption, or ownership subject to a tax title, is treated by the law as an interest in land which may be conveyed or devised and which descends in the same manner as other property.5 The effect of payment or tender of the amount due, to the purchaser or his legal representatives or assigns, by a person entitled to redeem the land is at once as between the parties to defeat the legal estate of the purchaser and to leave the title where it would have been if the sale had never taken place." If the holder of the tax title intentionally eludes the owner and thus prevents tender being made, tender is excused, and the tax 1 Rogers v. Rutter, 11 Gray 410 (1858); Hillis v. O'Keefe, 189 Mass. 139 (1905); Rogers v. Lynn, 200 Mass. 354 (1909); Union Trust Co. v. Reed, 213 Mass. 199 (1912). 2 St. 1918, c. 257, § 53. At the same time a provision that the redeeming owner should be credited with rents and profits received by the purchaser was stricken out as no longer applicable as the purchaser cannot now take possession until the two year period of redemption has expired. 3 Davidson v. Stafford, 210 Mass. 145 (1911). 4 Da Silva v. Turner, 166 Mass. 407 (1896). 5 O'Day v. Bowker, 143 Mass. 59, 62 (1886). It was however held prior to 1915 that a right of redemption was not an interest in real estate attachable in an action at law. Adams v. Mills, 126 Mass. 278 (1879). At present as the tax title is only security the opposite result might be reached. Rand v. Robinson, 11 Cush. 289 (1853); Perry v. Lancy, 179 Mass. 183 (1901). [G. L. c. 60, § 62 title is defeated to the same extent as if tender had been actually made.' When the purchaser of a tax title conveys it to a third party before the owner undertakes to redeem, the owner, if he has notice of the conveyance, should make his tender to the grantee of the purchaser. It was formerly held that if the owner remained in possession tender should be made to the purchaser himself, notwithstanding a duly recorded deed which the purchaser had made to a third party while disseised. Since 1891 however title can pass notwithstanding the disseisin of the grantor,10 and it would seem that tender should be made to the purchaser's grantee whenever the owner of the tax title has actual knowledge of the conveyance or the deed has been recorded. If the purchaser of the tax title conveys only a portion of the land, a person who seeks to redeem that portion must pay the amount assessed on the whole with interest and charges in order to redeem. What relief the court would grant the owner of an entire parcel which the purchaser at a sale for non-payment of taxes subdivided and conveyed away to several grantees so that the owner would be obliged to tender the entire sum to each is not clear, but it is safe to assume that some means would be found to protect the owner.12 11 The interest which the law requires to be paid upon the charges of the sale need not be paid upon the charges incident to the redemption of the land.13 An attempt by the purchaser to knowingly collect more for redemption of land than the statute authorizes may be ground for permitting redemption more than two years after the sale.14 A tax title is not merged with another claim on the land and a person who buys the tax title does not thereby lose any other rights he may have in the land if the tax title is redeemed.15 A person who redeems a tax title cannot treat the transaction as 7 Perry v. Lancy, 179 Mass. 183 (1901); Hillis v. O'Keefe, 189 Mass. 139 (1905); McNeil v. O'Brien 204 Mass. 594 (1910). 8 Faxon v. Wallace, 101 Mass. 444 (1869). 11 McNeil v. O'Brien, 204 Mass. 594 (1910). 12 McNeil v. O'Brien, 204 Mass. 594 (1910). 13 Hawks v. Davis, 185 Mass. 119 (1904). 14 Davidson v. Stafford, 210 Mass. 145 (1911). For the penalty for such zonduct see G. L. c. 60, § 104, infra page 412. 15 Jenks v. Liverpool, London & Globe Insurance Co., 206 Mass. 591 (1910). . G. L. c. 60, § 63] a purchase and hold the paramount title to the property if it appears that he had no right to redeem.16 There were formerly provisions of statute allowing a mortgagee and other person having an interest in the property but who was not the person named in the tax list as the owner, to redeem within two years after actual notice of the sale; but these provisions were stricken out in 1915 as unnecessary in view of the protection afforded such persons in proceedings to foreclose a tax title." Prior to the enactment of the General Laws of 1921 an owner of land sold for non-payment of taxes might under some circumstances enforce his rights either to redeem from a valid sale or to set aside an invalid one, by writ of entry,18 and until 1849, when the right to redeem by bill in equity was granted, writ of entry was his only remedy to enforce a right of redemption; but a writ of entry will not lie even though the purchaser has recorded his deed and refuses to give the owner a deed of release, if the owner is left in possession; 19 so that under the law as it is at present, the writ of entry is not an available remedy for the owner unless the purchaser has taken possession after the expiration of two years from the sale and it appears that the sale was invalid or that the owner had paid or tendered the amount required to redeem within the statutory period. Recording Certificate of Payment to Collector SECTION 63. The collector shall receive any money paid to him instead of the purchaser and give to the person paying it a certificate specifying the amount paid, the name of the person to whom and the real estate on which the tax was originally assessed, and the registry of deeds and the book and page of the records therein where the collector's deed is recorded; and the recording of the certificate 16 Jenks v. Liverpool, London & Globe Insurance Co., 206 Mass. 591 (1910). 17 St. 1915, c. 237, § 16. For decisions under the provisions as to redemption within two years from actual notice see the first edition of this work, pages 371-374 inc. 18 Blossom v. Cannon, 14 Mass. 177 (1817); Tilson v. Thompson, 10 Pick. 359 (1835); Farnum v. Buffum, 4 Cush. 260 (1849); Alexander v. Pitts, 7 Cush. 503 (1851); Rand v. Robinson, 11 Cush. 289 (1853); Hill v. Mowry, 6 Gray 551 (1856); Crowell v. Goodwin, 3 Allen 535 (1862); Harrington v. Worcester, 6 Allen 576 (1863); Wall v. Wall, 124 Mass. 65 (1878); Langdon v. Stewart, 142 Mass. 576 (1886); Barker v. Mackay, 175 Mass. 485 (1900); Perry v. Lancy, 179 Mass. 183 (1901). 19 Field v. Hawley, 126 Mass. 327 (1879). [G. L. c. 60, § 63 in said registry shall extinguish all right and title acquired under the collector's deed. The collector shall on demand pay over all money so paid, to the person entitled thereto as determined by him, except that he shall retain one dollar for the use of the town and shall account to it therefor. If the amount so paid is less than the purchaser was entitled to, the balance with interest at eight per cent per annum may after demand therefor be recovered in contract by the purchaser against the person paying such amount, if the action is commenced within three months after such payment to the collector. In 1848 it was first provided that when a purchaser of land sold for non-payment of taxes or any agent duly appointed by him could not be found upon reasonable search, the person entitled to redeem might pay the amount required for redemption to the town or city treasurer, who should give a certificate showing the fact of payment and designating the land on which the tax was assessed. Upon filing this certificate in the registry of deeds where the land lay, together with an affidavit of himself or some disinterested person, that upon reasonable search neither the owner nor his agent could be found, which affidavit was given the force of prima facie evidence of the facts recited therein, all right and title acquired under the collector's deed was released and discharged. These provisions remained without substantial change until 1902. While they were in force and since the statute has been in its present form it has been held that the remedy given by them is not exclusive and that persons whose sole reason for not redeeming from a tax sale during the statutory period was that they were unable to find the purchaser are not precluded by the statute now under consideration from relief in equity.1 In 1902 the method of redemption described above was extended to all cases, whether the purchaser at the tax sale could be found or not, and the affidavit prescribed by the earlier statute became unnecessary and was no longer required; while the collector of taxes instead of the city or town was substituted as the person to whom tender could be made. There are distinct 1 Clark v. Lancy, 178 Mass. 460 (1901); Barry v. Lancy, 179 Mass. 112 (1901); Perry v. Lancy, 179 Mass. 183 (1901); Rogers v. Nichols, 186 Mass. 440 (1904); McNeil v. O'Brien, 204 Mass. 594 (1910); Davidson v. Stafford, 210 Mass. 145 (1911). 2 Rogers v. Nichols, 186 Mass. 440 (1904). G. L. c. 60, § 64] limitations upon the effectiveness of the remedy furnished by this statute, even in its present form. Compliance with its terms would still leave the tax deed outstanding upon the record, and although its legal effect would be neutralized by the certificate provided for in the statute, it might constitute a practical impairment of the ease of transferring title. Moreover it might be impossible to ascertain the precise amount due without conferring in person with the purchaser and the owner could protect himself with certainty only by depositing with the collector the largest amount which could under any circumstances be required. Hence it remains highly desirable that the person entitled to redeem should be able to find the purchaser and get from him a correct statement of the amount necessary for redemption.3 Tax Title Absolute only after Foreclosure SECTION 64. The title conveyed by a tax collector's deed or by a taking of land for taxes shall be absolute after foreclosure of the right of redemption by decree of the land court as provided in this chapter. The land court shall have exclusive jurisdiction of the foreclosure of all rights of redemption from titles conveyed by a tax collector's deed or a taking of land for taxes, in a proceeding provided for in sections sixty-five to seventy-five, inclusive. Sections sixty-four to seventy-five inclusive set forth the procedure for the foreclosure of the right of redemption from a sale for non-payment of taxes adopted in 1915 as a substitute for the time-honored method of sale of the absolute title subject to right of redemption, which had proved so unsatisfactory. The object of the new method was two-fold, namely, first, to protect the owners and persons having an interest in property by making sure that as far as it could be done they would receive actual notice of the sale before the right of redemption was lost; and secondly, to free the law of tax titles from the extremely technical state into which it had fallen from the tendency of courts to alleviate the harshness of the law by requiring an accuracy almost impossible of attainment in the procedure of collectors. It is perhaps too early to determine definitely how successful the 3 Davidson v. Stafford, 210 Mass. 145 (1911). |