Widersum v. Bender

Barker, J.

The tax sale from which the plaintiffs seek to redeem took place on October 18,1893, and this bill was filed on April 10, 1897. Under the provisions of St. 1888, c. 390, § 76, this court has equity powers in all cases of taking or sale of real estate for the payment of taxes assessed thereon, if relief is sought within five years from the taking or sale. While this provision does not in every case extend the time of redemption to five years, it allows the court to decree redemption upon a bill filed within five years from the sale, if the circumstances render it equitable. O'Day v. Bowker, 143 Mass. 59 . See also Smith v. Smith, 150 Mass. 73, 74 ; St. 1849, c. 213, § 2; St. 1856, c. 239, § 4; Gen. Sts. c. 12, § 42; St. 1878, c. 266, § 14; Pub. Sts. c. 12, §§ 49, 66; St. 1888, c. 390, §§ 57, 76; Mitchell v. Green, 10 Met. 101 ; Band v. Robinson, 11 Cush. 289 ; Parker v. Baxter, 2 Gray, 185 ; Simonds v. Towne, 4 Gray, 603 ; Rogers v. Butter, 11 Gray, 410 ; Tinslar v. Davis, 12 Allen, 79 , 80; Faxon v. Wallace, 98 Mass. 44 ; Loud v. Charlestown, 99 Mass. 208, 209 ; Gladivin v. French, 112 Mass. 186, 187 ; Dewey v. Donovan, 126 Mass. 335, *438 337; Langley v. Chapin, 134 Mass. 82, 88 ; Sherwin v. Boston Live Cents Savings Bank, 137 Mass. 444, 446, 447 .

As there is no report of the evidence or of the facts found by the single justice, the only question brought up by the defendant’s appeal is whether the decree is one which could be entered upon the bill. We think that the bill alleges circumstances which make it equitable to allow the plaintiffs to redeem. They were owners of a remainder in fee, after the life estate of the defendant Bender, whose duty it was to pay the tax. Bender and Hormel, who purchased the tax title a week after the sale, kept the sale secret from the plaintiffs in order to cause them to lose the right of redemption, and, intending to prevent the plaintiffs from redeeming, wrongfully conspired to defraud them. Bender owning the life estate and Hormel the tax title on December 3, 1896, more than two years and less than five from the tax sale, joined in a deed to the defendant Beiehardt, which gave her the fee, if the tax title could not be redeemed, and she gave back to Hormel a mortgage yet outstanding. It is not alleged that Beiehardt took with notice of the right to redeem, nor that she was a party to or chargeable with knowledge of the fraud or conspiracy of Bender and Hormel. But her answer does not allege that she was a purchaser without notice and in good faith, and such an allegation, if made, might not have been proved. There was nothing to prevent a finding that the appellant took her title under such circumstances as made it equitable to allow the plaintiffs to redeem.

The decree therefore cannot be reversed because of the defendant’s appeal. It is evident, however, that it does not give the plaintiffs all the relief to which they are entitled. The defendant Hormel should execute and deliver a release of the plaintiffs’ remainder from the operation of his mortgage. An inspection of the record shows that the single justice directed a decree for the plaintiffs as against all the defendants except Welch, the original purchaser at the tax sale, who sold out his title immediately after the sale, and who by his answer said that he had no interest in the estate. The result is, that the decree is to be affirmed with costs of the appeal, but with leave to the plaintiffs to apply to a single justice for a modification of the decree as against the defendants Bender and Hormel, and *439 requiring Hormel to release the plaintiffs’ remainder from the operation of his mortgage, and that a decree be entered by the single justice dismissing the bill as against the defendant Welch, but without costs. So ordered.