[G. L. c. 60, §§ 82-84 inc.

to be compared with the expenses of a sale if the sale or taking occurred prior to July 1, 1915, otherwise with foreclosure. The General Laws authorize comparison with the expenses of foreclosure only; but the 1918 statute has not been repealed.3

Proceedings if Tax Title is Deemed Invalid

SECTION 82. If a collector has reasonable cause to believe that the title to land sold for non-payment of taxes or of assessments, a lien for which is enforceable by a sale of land, is invalid by reason of an error, omission or informality in the assessment or sale, he may, within two years after the date of the deed of such land, give notice to the record owner thereof, requiring him, within thirty days thereafter, to release any interest which he may have in such land under said deed, and to receive from the town the amount paid therefor with interest at ten per cent or to file with the collector a written statement that he refuses to release such interest. Such statement, if recorded in the registry of deeds, shall release the town from any liability upon the warranty in said deed.

SECTION 83. If, within thirty days after such notice, such owner does not comply therewith, the collector shall cause a copy thereof, with an affidavit by himself or by a disinterested person of the service thereof and of the facts in the case, to be recorded in the registry of deeds. A note of reference to the record of said copy shall be made on the margin of the record of the collector's deed therein referred to; and from the time of such record the interest payable by reason. of a breach of warranty in such deed shall cease, and all right and title acquired under such deed shall be held to be released. The collector shall give notice of such proceedings to the town treasurer, who shall, on reasonable demand, pay over out of any funds in his hands the amount due in respect of said deed to the person entitled thereto.

SECTION 84. If the invalidity of a title described in section eightytwo was caused by an error, omission or informality in the assessment, the collector, after obtaining from the holder of the deed a release

to the attention of the commissioner and requiring him to act; (2) to make the statute conform to the foreclosure proceedings authorized by St. 1915, c. 237; (3) to dispense with publication; (4) to make it clear the several parcels could be sold at one sale for a lump sum; (5) to provide that the deed should be without covenants, and not a quitclaim deed.

3 G. L. c. 282.

G. L. c. 60, §§ 85, 86]

of his interest or after causing a copy of the notice to be filed and recorded as provided in the preceding section, shall forthwith notify the board by which the tax or assessment was laid, which shall forthwith reassess it as provided in section seventy-seven of chapter fifty-nine. If such invalidity was caused by an error, omission or informality in the proceedings of the collector, he shall, after obtaining such release or after filing and recording such copy, forthwith collect the unpaid tax or assessment in conformity to law. If the collector has reasonable cause to believe that a tax title, held by a town under a sale or taking for non-payment of tax, is invalid by reason of any error, omission or informality in the assessment, sale or taking, he may disclaim and release such title by an instrument under his hand and seal, duly recorded in the registry of deeds.

.

A defect in the collector's deed, consisting of an incorrect recital of the cause of sale, is an "error, omission or informality in the sale" within the meaning of the last sentence of section eighty-four of the statute and justifies the filing of a disclaimer under that statute. The deed is the culminating act or finishing touch of the sale without which it would be incomplete. The assessors may re-assess a tax under the first sentences of the statute whether the title is held by a city or town and the collector has disclaimed under the last sentence, or by a third party and the collector has given notice of invalidity under the two preceding sections.2

Lien of Co-Tenants

SECTION 85. A tenant in common or joint tenant, who pays the entire tax assessed upon land held jointly or in common, shall have a lien upon the interest of each of his co-tenants, to secure the payment to him of the proportion of such tax payable by each of said co-tenants respectively, with the costs of enforcing the same; but any person whose tax has been so paid by his co-tenant shall have the same right to recover it back if illegally assessed as he would have had if the tax had been paid under a protest by him in writing.

SECTION 86. Such lien may be enforced in the manner provided in chapter two hundred and fifty-four for enforcing liens on build

1 Nickerson v. Hyde Park, 209 Mass. 365 (1911). 2 Nickerson v. Hyde Park, 209 Mass. 365 (1911).

[G. L. c. 60, § 86 ings and land under written contracts for the erection, alteration, repair or removal of buildings or structures; but shall be dissolved, unless the person desiring to avail himself thereof, or some one in his behalf, subscribes and makes oath to a certificate setting forth. a description, sufficiently accurate for identification, of the property intended to be covered by the lien, the names of the several co-tenants and the interest of each therein, the amount of the tax paid, and the amount due from each co-tenant, and within thirty days after the day of payment of said tax records such certificate in the registry of deeds, and unless a bill in equity to enforce the lien is commenced within sixty days after the date of recording said certificate. Such lien shall have priority over all liens and encumbrances arising after the filing of the certificate required by this section, but shall not be valid against a mortgage actually existing and duly recorded prior to the recording of said certificate, or against any lien existing under section one or section three of chapter two hundred and fifty-four prior to the filing of the certificate. No person except the co-tenant who paid the tax, or a person claiming by, through or under him, shall be made a party plaintiff in a bill brought under this section.

When, after land held by tenancy in common has been sold for non-payment of taxes, one of the co-tenants pays the purchaser the precise amount necessary to redeem the land and takes a deed of release, in the absence of evidence to the contrary such a transaction will be taken to be a redemption and the tax lien discharged, unless the co-tenants of the person making the payment refuse to contribute their share. If a co-tenant purchases the tax title from a third party to whom the original purchaser has conveyed, whether he would acquire a paramount title is a question not free from difficulty.

When there has been a deed of the tax title to one co-tenant put on record, it is not necessary for him to take the statutory steps to preserve the lien for contribution; for he already has the record title, and unless his co-tenants make or tender contribution they have no interest in the property which they can enforce, either at law or in equity.2

One owner in common who pays the taxes may have the lien enforced against the widow of his co-tenant, although the

1 Hurley v. Hurley, 148 Mass. 444 (1889). 2 Hurley v. Hurley, 148 Mass. 444 (1889).

G. L. c. 60, §§ 87-90 inc.]

real estate of her husband has never been set off to her in the statutory manner.3

Decision of Town whether to Sell or Take

SECTION 87. A city or town may, by ordinance or by-law, respectively, direct whether its collector shall exercise the power of sale or the power of taking to enforce the lien for taxes; and in default of such ordinance or by-law the collector may exercise either power at his discretion; but the passage of any such ordinance or by-law shall not render invalid any proceedings then pending.

MISCELLANEOUS PROVISIONS

Commission of Tax List to Sheriff

SECTION 88. When the tax list and warrant of the assessors is committed to the sheriff or his deputy, he shall forthwith post, in some public place in the town, an attested copy of said list and warrant; and shall make no distress for a tax within thirty days thereafter.

SECTION 89. If a person pays his tax within said thirty days, the officer shall receive from him for his fees five per cent on the sum assessed; but if a tax remains unpaid after said thirty days, he shall collect it by distress or imprisonment, or by sale of land as a collector would do. The officer may also levy his fees for service and travel in the collection of each person's tax, as in other cases of distress and commitment, or sale of land.

SECTION 90. If a town appoints its treasurer as the collector of taxes, he may issue his warrants to the sheriff of the county, or his deputy, or to any constable of the town, returnable in sixty days, requiring them to collect any or all taxes due. Such warrants shall be substantially in the same form, and shall confer the same powers as warrants by assessors to collectors.

Sections eighty-eight and eighty-nine evidently have reference to action under that portion of section fifty-three of chapter fifty-nine which provides that if no collector has been chosen and there is no constable the assessors shall commit their tax list and warrant to the sheriff or his deputy.1

Section ninety should not be confused with section thirty

3 Naylor v. Nourse, 231 Mass. 341 (1918).

1 Supra page 280.

[G. L. c. 60, § 91 four of the same chapter, which relates to the employment of a sheriff or constable to enforce the collection of a particular tax which has remained unpaid for fourteen days after demand;2 whereas this statute relates to the delegation of all or part of the collector's functions. If this statute does not authorize a constable to make an arrest outside of his own town, it at any rate does not limit the powers of officers under warrants given for a special purpose by authority of section thirty-four."

A town may authorize its collector of taxes to use all means of collecting taxes which a town treasurer may use when appointed a collector of taxes, although the treasurer and the collector are different persons, and after such a vote the collector may issue general warrants to the officers designated above; but a collector may issue such warrants only in relation to taxes assessed for the year to which the vote applied, and cannot lawfully commit the taxes of previous years to a sheriff or constable by general warrant."

Restraint of Foreign Corporations and Non-Residents

SECTION 91. When any foreign corporation or non-resident person, doing business in the commonwealth, shall for sixty days neglect, refuse or omit to pay a tax lawfully assessed and payable, any court having jurisdiction ir equity may on petition of the collector of taxes of the town where the tax is assessed restrain said corporation or person from doing business in the commonwealth until said tax, with all incidental costs and charges, shall have been paid. Service of process upon any such petition may be made by any officer duly qualified to serve process, by leaving a duly attested copy thereof at the place where the business is carried on.

This statute was first enacted in 1902 and proved useful in enforcing the collection of taxes assessed upon foreign corporations which were desirous of continuing to do business in this commonwealth but which had covered their tangible property with such a network of perhaps fraudulent assignments that an officer might hesitate to seize it on distress or attachment. Under the present system of taxing foreign corporations, the utility of

2 Supra page 340.

3 Beard v. Seavey, 191 Mass. 503 (1906).

4 G. L. c. 41, § 38, supra page 158.

5 Smith v. Keniston, 100 Mass. 172 (1868).