Inhabitants of West Roxbury v. Minot , 114 Mass. 546 ( 1874 )

Endicott, J.

This case comes within the rule stated in Roxbury v. Nickerson, ante, 544.

The St. 1855, c. 43, gave cities and towns accepting the same, authority to establish and grade sidewalks, and assess upon the abutters one half of the expense thereof; such assessments to be a lien upon the abutting lands, as taxes are a lien upon real estate. This was the first general legislation on the subject. These provisions are reenacted in Gen. Sts. c. 45, §§ 7, 8. The method for collecting such assessments thus prescribed by the statutes must be followed, the lien must be enforced by a sale of the land, and a town cannot collect such assessments in an action at law. Roxbury v. Nickerson, supra.

But the plaintiffs contend that the defendant, having submitted the case to the judgment of the court on an agreed statement of facts, cannot raise this question. Upon an agreed statement of facts, the only question open is whether the plaintiffs can recover upon any form of declaration or in any form of action. Ellsworth v. Brewer, 11 Pick. 316. Cushing v. Kenfield, 5 Allen, 307. Merrill v. Bullock, 105 Mass. 486. Such statement waives all defects in pleading. Brettun v. Fox, 100 Mass. 234. Kimball v. Preston, 2 Gray, 567. Folger v. Columbian Ins. Co. 99 Mass. 267, 277. Rogers v. Daniell, 8 Allen, 343, 349. But this is the extent of the rule. It does not apply where the subject matter of the suit is such that no action at law lies for its recovery. Taxes on real estate, being a lien on the estate, can only be enforced by the sale of the estate itself; and an agreed statement of facts, signed by the parties, does not give the court jurisdiction to collect them, the statute being decisive as to the method of collecting.

By the agreed statement of facts, therefore, the defendant waived all technical objections to the pleadings and form of action, but he did not waive the question whether, in any form of action, the plaintiffs can recover taxes on real estate.

The cases cited by the plaintiffs were decided upon the special provisions of the charter of the city of Lowell, and do not apply to cases arising under this statute. Lowell v. Wentworth, 6 Cush 221. Lowell v. French, Ib. 223. Lowell v. Wyman, 12 Cush 273.

Judgment for the defendant.