Williams v. Baker , 209 Mass. 92 ( 1911 )

Braley, J.

The defendant as tax collector of the town of Dedham sold certain real estate for non-payment of taxes, which was purchased by the plaintiffs, to whom he gave a deed with a covenant of warranty that the sale in all particulars had been conducted according to law. But, the sale having been declared invalid in Williams v. Bowers, 197 Mass. 565, because of an insufficient description of the premises in the collector’s notice of sale, the plaintiffs sue at common law for breach of the covenant. By the report under which the case is before us the questions for decision are, whether the action is well founded, and whether the damages are limited to the repayment of the consideration money with interest or are measured by the fair market value of the land to which the plaintiffs never acquired title.

We are of opinion that the action cannot be maintained. If before the enactment of St. of 1862, c. 183, § 6, a collector of taxes chose to insert in addition to the statutory requirements of the conveyance, a covenant of seisin or of the right to convey, he might be held personally in damages for a breach. St. 1785, c. 70, § 7. Rev. Sts. c. 8, § 31. St. 1848, c. 166, § 5. Gen. Sts. c. 12, § 35. Bickford v. Page, 2 Mass. 455. Sumner v. Williams, 8 Mass. 162, 210. Lynde v. Melrose, 10 Allen, 49. But, as pointed out in Williams v. Dedham, 207 Mass. 412, the St. of 1862, c. 183, § 6, made an important change in our laws as to the form of the deed and the rights of a purchaser at an invalid sale. The deed which the collector was required to execute and deliver under Gen. Sts. c. 12, § 35, was thereafter to have “inserted a special warranty that the sale has in all particulars been conducted according to the provisions of law. ” If subsequently it appeared that by reason of errors or informality in any of the proceedings of assessment or sale, “ the purchaser has no claim to the property sold,” then, upon bis surrender of the deed, the town or city was required to repay to him the amount paid, “ which shall be in full satisfaction of all claims for damages for any defect in the proceedings.” By re-enactments as amended by the St. of 1878, c. 266, § 1, limiting the time in which the right could be exercised to two years from the date of the deed, and providing that at the election of the collector the purchaser should offer in writing either to surrender and discharge the deed “ or to assign and transfer to the town or city all his right, title and interest therein,” this provision became R. L. c. 13, § 44,^* in force when the sale and conveyance in question were made. If the plaintiff’s contention is sound, the remedy against the town is merely cumulative, or alternative, and the defendant remains liable on a covenant which the law required him to insert, or the conveyance would have been invalid. R. L. c. 13, §§ 44, 87. A collector of taxes, however, is obliged to accept the office, or subject himself to a fine. R. L. c. 25, § 97. And sales of land for the non-payment of taxes are authorized in the interest and for the benefit of the public. If the Legislature in making the changes intended to impose a personal liability on a public officer by requiring the special covenant, the collector would have been left to perform the duties of his office under the penalty of a liability if the error avoiding the sale arose not through any fault of his own, but from a mistake or some informality of the assessors, which he might not discover before the sale and delivery of the deed, and there would have been no occasion to have gone further, by providing for repayment by the city or town or conferring a right upon the purchaser, which before the statute he did not possess. But, if the legislative purpose is fairly to be gathered from the St. of 1862, c. 183, § 6, that the provision was intended to provide an inexpensive but ample remedy where the land could not be held, R. L. c. 13, § 44, removes all doubt. It is there declared that the payment “ shall be in full for all damages,” not only “ for any defects in the proceedings,” but “ under the warranty in such deed.” The “ warranty ” is a statutory covenant of the defendant, not of the town, against which the plaintiffs are without recourse, as their remedy under the statute was held in Williams v. Dedham, 207 Mass. 412, 415, to have been lost by their failure to act within the period of limitation. It, moreover, would be anomalous to construe the statute as intended to give a remedy against the town if invoked within two years, while the defendant could be sued at any time.within twenty years from the date of the deed. R. L. c. 202, § 1. Bickford v. Page, 2 Mass. 455. Clark v. Swift, 3 Met. 390. By the construction adopted, the language of the statute is given its ordinary and obvious meaning. If the purchaser finds within the time prescribed that he cannot hold the land or that there are reasonable grounds to believe that the tax title is fatally defective because of non-compliance with the statutory requirements either preceding or attendant upon the sale, he need not expose himself to vexatious litigation,, but can surrender the deed and receive back the purchase price. But, if he neglects seasonably to institute the necessary proceedings, there is no obligation on the part of the city or town or the collector to reimburse him for the loss. The relief provided being fully adequate, it should be held to be exclusive, and, under the reservation in the report, judgment is to be entered for the defendant. Hodges v. Thayer, 110 Mass. 286. Staples v. Dean, 114 Mass. 125. Welch v. Boston, 208 Mass. 326.

So ordered.

* Now St. 1909, c. 490, Part II. § 45.