Lynde v. Brown , 143 Mass. 337 ( 1887 )

W. Allen, J.

The Pub. Sts. e. 11, § 13, provide that, “ for the purpose of assessing and collecting taxes, the persons appearing of record as owners of real estate shall be held to be the true owners thereof. Taxes on real estate shall be assessed, in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the first day of May.” Sections 18 and 19 provide for assessing the undivided estate of a deceased person in certain cases; but these provisions were not acted on, and are immaterial, except as showing that a simple and easy mode of making a correct assessment was provided.

The only interest or right in the land which Mrs, Brown had was a right to have dower assigned to her out of it. It is not contended that the taxes could be assessed to her as the owner of the real estate; but it is contended that she was in possession of it, within the meaning of the statute. She let the estate by a parol lease to the tenant Foley, after the death of her husband in 1864, and Foley occupied as her tenant at the times when the taxes in question were assessed, paying rent to her. Foley was in possession, and could have maintained an action on that possession against Mrs. Brown. It is argued that, at the times of the assessments of the taxes to her, she was acting in behalf of her infant grandchild, who was the owner, and was in possession of the estate, managing and letting it for him as his agent. But the ease finds that she was not resident in the town, and did not occupy the estate, and that it was in the possession of Foley as tenant. The statute means the actual possession which a tenant occupying the premises has, as distinct from the constructive possession which an owner may have; and, if the tenant is in possession, it is immaterial whether he holds under the owner, or the agent of the owner, or a stranger.

Judgment for the tenants.