Wall v. Wall

Morton, J.

The tenant’s title is derived from a sale and conveyance of the premises by the collector of taxes of the city of Worcester. The demandant makes several objections to the validity of this sale. We are satisfied that one of these objections must prevail.

The statute requires that the collector shall give notice of the time and place of sale of real estate taken for taxes, by an advertisement to be published in a newspaper of the county in which such estate lies, and that “ the advertisement shall contain a substantially accurate description of the several rights, lots or divisions of the estate to be sold, the amount of the tax assessed on each, the names of all owners known to the collector, and the taxes assessed on their respective lands.” Gen. Sts. c. 12, §§ 28, 29.

It has been held that these requirements of the statute are not merely directory to the collector, but that they are conditions precedent to the validity of the sale, and that, unless they are strictly followed, the sale is invalid. Thus, in Alexander v. Pitts, 7 Cush. 503 , it was held that, as the tax assessed, for nonpayment of which the estate was sold, was three dollars and thirty cents, and the advertisement stated the amount of the tax to be four dollars and twelve cents, the sale was void. See also Farnum v. Buffum, 4 Cush. 260 .

The collector’s advertisement in this case gives notice to “the owners and occupants of the following described parcels of real estate ” that the taxes on said estates, assessed for the year 1872, remain unpaid, and “ that said parcels of real estate, or such undivided portions thereof as may be necessary, will be offered for sale at public auction ” at the place and time named.

*67 A collector, by the Gen. Sts. c. 12, § 33, is authorized, if the taxes are not paid, to sell the whole land, or, if it is capable of division, any part of it, or the rents and profits of the whole estate. But he is nowhere given any authority to sell an undivided interest in the land, so as to constitute the purchaser a tenant in common with the owner.

The advertisement in this case gives notice to the owner and others interested that the collector intends to sell, either the whole of the land of Sarah Wall, or such undivided portions thereof as may be necessary. As he had no right to sell any undivided portion of the land, it was not a due execution of the statute power, and therefore no title passed by the deed. Crowell v. Goodwin, 3 Allen, 535 .

This makes it unnecessary to discuss the other objections to the sale made by the demandant.

Judgment for the demandant. * The St. of 1878, c. 229, § 1, which took effect on May 6, 1878, is as follows: “No sale heretofore made of real estate taken for taxes shall be held invalid by reason of the notice of sale having contained the words 1 or such undivided portions thereof as may be necessary,’ or the words, 1 or such undivided portions of them as may be necessary: ’ provided, however, that this act shall not apply to any case wherein proceedings at law or in equity have been commenced, involving the validity of such sale, nor to any real estate which has been alienated since the eighth day of February of the current year, and before the passage of this act.”