G. L. c. 184, § 22] select, by exercising his choice of suing for the tax or selling the land, and the party who is obliged to pay the tax can make no claim on the other for reimbursement or contribution.

The most common provision for the payment of current taxes in an agreement for the sale of real estate is an agreement that the tax shall be apportioned, that is, the vendor pays the same proportion of the tax as the number of days from the first of April to the date of the conveyance bears to the total number of days in the year, and the purchaser pays the balance. If the tax has not been paid at the time of conveyance, the vendor's share is deducted from the purchase price, but if the vendor has already paid the tax the purchaser's share is added to the purchase price. When it is provided in an agrement for the sale of real estate that taxes for the current year shall be "apportioned" or "adjusted," such an arrangement is ordinarily what is meant." This right of apportionment, however, rests entirely on the express agreement of the parties; the collector of taxes is under no obligation to recognize it and it has never been held by the courts that in the absence of an express agreement, the taxes, as between vendor and vendee, should be apportioned either on account of the general custom or the obvious fairness. of such an arrangement.

SPECIAL ASSESSMENTS

When real estate is conveyed with a covenant against encumbrances, the existence of a lien on the property for a special assessment or betterment is of course a breach of the covenant, and the right of the purchaser or his assigns to sue for the breach is the same as when the encumbrance consists of a lien for the general tax. When the covenant is not against encumbrances generally, but refers in terms to "taxes" as a subject of exclusion or inclusion, "taxes" will or will not be held to signify special assessments according as the intent of the parties is indicated by the context."

It was formerly the law that the lien went into effect and the encumbrance began upon the date of the order for the lay

17 Sleeper v. Nicholson, 201 Mass. 110 (1909); J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520 (1914).

18 Smith v. Abington Savings Bank, 165 Mass. 285 (1896); Williams v. Monk, 179 Mass. 22 (1901).

[G. L. c. 184, § 22 ing out of the public improvement upon which the assessment was based, even if the assessment was not made until later, and consequently a vendor was liable upon his covenant if there had been such an order prior to his conveyance even if he knew nothing about it, no land of his was taken and no assessment was in existence at the time of the conveyance.19 It was the liability to an assessment that constituted the encumbrance; and the liability was an encumbrance upon the land when it accrued even though its amount might not be known and the present right of enforcement might not come into existence until the assessment was afterward made.20 Under the redrafting of the betterment laws which occurred at the time of the consolidation of the General Laws, the further establishment of these unrecorded liens was guarded against, and since January first, 1921 no lien can arise without the filing of an order in the registry of deeds, either in the case of a betterment assessment" or an assessment for the construction of sewers.22

When a special assessment is invalid for technical error, if the proper officers could correct the error by proceedings in due form, and re-assess the same amount upon the land and sell the land if the re-assessment was not paid, such error in an assessment is no defense in an action on a covenant against encumbrances.23 If, however, the only statute under which an assessment could have been made at the time of the conveyance was unconstitutional, or the improvement was constructed in such a manner that under the existing statutes no valid assessment could have been levied, a valid assessment authorized by a statute enacted after the conveyance is not a breach of the covenant, because when the deed was given there was no liability to assessment and consequently no encumbrance.25

24

When the parties knew of the improvement at the time of

19 Blackie v. Hudson, 117 Mass. 181 (1875); Carr v. Dooley, 119 Mass. 294 (1876); O'Connell v. First Parish in Malden, 204 Mass. 118 (1910); Cotting v. Commonwealth, 205 Mass. 523 (1910).

23 Colburn v. Litchfield, 132 Mass. 449 (1882); Smith v. Abington Savings Bank, 171 Mass. 178, 186 (1898); Maloy v. Holl, 190 Mass. 277, 279 (1906). 24 Lorden v. Coffey, 178 Mass. 489 (1901).

25

Maloy v. Holl, 190 Mass. 277 (1906); Morse v. Street Commissioners of Boston, 197 Mass. 292 (1907); Campbell v. Haven, 211 Mass. 121 (1912); Sullivan v. Mandell, 212 Mass. 174 (1912).

G. L. c. 184, § 22] the conveyance and the vendor specifically agreed to pay for it, he cannot require the purchaser to contest the validity or even the constitutionality of the assessment.26 If the assessment is not a lien, but only a condition precedent to making use of the improvement it is not an encumbrance.27 The purchaser may recover on the covenant if the lien can be enforced against him. even if it could not have been enforced against the vendor; 28 but if the covenant related to only a portion of the property assessed the vendor is liable for a proportionate part of the assessment only.29 The duration of the lien depends upon the provisions of the statutes under which the assessment was made, and unless it has expired in accordance with such provisions, the vendor is liable upon his covenant.30

26 McCormick v. Cheevers, 124 Mass. 262 (1878).

Such as an entrance fee for the use of a sewer, Bumstead v. Cook, 169 Mass. 410 (1897).

28 As where the vendor was the commonwealth, Cotting v. Commonwealth, 205 Mass. 523 (1910).

"Smith v. Carney, 127 Mass. 179 (1879).

30 O'Connell v. First Parish in Malden, 204 Mass. 118 (1910).

CHAPTER 185

THE LAND COURT

Jurisdiction over Foreclosure of Tax Titles

SECTION 1. The land court shall be a court of record. It shall have exclusive original jurisdiction of the following matters:

(b) Proceedings to foreclose tax titles, under chapter sixty.

CHAPTER 193

APPOINTMENT OF ADMINISTRATORS

Application by Commissioner of Corporations and Taxation SECTION 3. If a person dies leaving an estate which may be liable to an income tax under chapter sixty-two or a legacy or succession

[G. L. c. 198, § 1 tax under chapter sixty-five, and a will disposing of such estate is not offered for probate, or an application for administration made, within four months after his decease, the probate court, upon application by the commissioner of corporations and taxation, may appoint an administrator.

THIS section appeared in much its present form in the original inheritance tax act of 1891.1 The object of the statute is of course to prevent the evasion of the tax by the division of the estate of a deceased person by agreement of all concerned without the intervention of the probate court, a practice which was not at all uncommon before the enactment of the statute, especially in the rural districts. In 1907 the words "if it then appears that there is no will in existence" were added in the appropriate section of the direct inheritance tax act of that year, but these words were struck out in 1911, so that an administrator is appointed on application of the commissioner if the executor named in the will does not offer it for probate.2 In 1915 the statute was amended so as to operate when in the opinion of the commissioner a tax was due, and in 1919 it was extended so as to include the income tax as well as the inheritance tax.1

1 St. 1891, c. 425, §13.

2 St. 1911, c. 551.

3 St. 1915, c. 64.

St. 1919, c. 349, § 6.

3

CHAPTER 198

INSOLVENT ESTATES OF DECEASED PERSONS

Taxes a Preferred Claim

SECTION 1. If the estate of a person deceased is insufficient to pay all his debts, it shall, after discharging the necessary expenses of his funeral and last sickness and the charges of administration, be applied to the payment of his debts, which shall include equitable liabilities, in the following order:

First, Debts entitled to a preference under the laws of the United States.

Second, Public rates, taxes and excise duties.

G. L. c. 206, c. 216]

CHAPTER 206

ACCOUNTS AND SETTLEMENTS OF RECEIVERS

Taxes a Preferred Claim

SECTION 31. The following claims shall, in the settlement of estates by receivers, be entitled to priority in the order named:

First, Debts due the United States or debts due, or taxes assessed by, the commonwealth or a county, city or town therein.

THE state insolvency laws are suspended while the national bankruptcy act is in force. The state statutes as to the settlement of estates by receivers are however still in force and under these statutes taxes constitute a preferred claim.' It has been held that, even in the absence of statute, when an estate is in the hands of a receiver appointed by a court of equity, taxes should receive priority.2

Waite v. Worcester Brewing Co., 176 Mass. 283 (1900); Equitable Trust Co. v. Kelsey, 209 Mass. 416 (1911).

2 Jones v. Arena Publishing Co., 171 Mass. 22 (1898).

CHAPTER 216

COURTS OF INSOLVENCY

Preferred Claims

SECTION 118. In the order for a dividend under the preceding section, the following claims shall be first paid in full in the following order:

First, The twenty-five dollars or expense of publication as provided in section one hundred and seventy paid by a creditor and the legal fees, paid by him, of an officer for the service of the order of notice to the debtor upon the original petition and for the service of a writ of injunction issued to restrain the transfer or disposition of any part of the debtor's property, not exempt from attachment, and from any interference therewith.

Second, The legal fees of the messenger.