Lancy v. Abington Savings Bank

Barker, J. The petition for registration of title was filed on January 22, 1900, and dismissed on March 23, 1900. The tax sale under which the petitioner contends that he holds an absolute title in fee, not subject to redemption, was made on October 8, 1895, the land then being subject to a mortgage to the Abington Savings Bank, one of the respondents, made on September 5, 1895. The bank had no notice of the tax sale until May, 1899. On June 3, 1896, the bank entered to foreclose its mortgage, and on June 5, 1896, made a foreclosure sale to a person who, as part of the same transaction, reconveyed the land to the bank, which remained in possession until February, 1897, when it sold to the respondent Hildebrand, who at the same time made a mortgage back to the bank for a part of the purchase money, which mortgage the bank still holds. The first ruling excepted to was that the petitioner’s title was [433] subject to redemption by the bank under St. 1888, c. 390, § 57, cl. 4. It is conceded by the petitioner that on June 3,1896, the bank had a right to redeem from the tax sale within two years after it should have had actual notice thereof. But he contends that by force of the provisions of St. 1888, c. 390, § 61, when the bank took possession of the property, its right to redeem from the tax sale was thereby cut down to a right to redeem within two years from the day of sale, and that this right, which would expire on October 8, 1897, was the only right of redemption from the tax sale which passed from the. bank to its grantee in February, 1897, or from its grantee back to the bank by the mortgage which the bank now holds. The argument advanced is that the words 66 a mortgagee of record ” in clause four of section fifty-seven are intended to exclude a mortgagee who has taken possession, and that the words “ within the same time as provided in section fifty-seven for owners of real estate to make tender ” mean only within two years from the day of sale. But a mortgagee who has taken possession is none the less a mortgagee of record. The purpose of section sixty-one was not to change the scheme of redemption fixed by section fifty-seven, but to make certain mortgagees liable to pay taxes and the expenses of tax sales. The words referring to the time of payment or tender cannot restrict that time to two years from the day of sale, because under section fifty-seven owners may have more than two years to make tender. In our opinion section sixty-one was not intended in any case to cut down the time for redemption given by section fifty-seven, and the entry of the bank did not change its right to redeem, which on the day of entry, as the bank had no actual notice of the tax sale, was a right to redeem within two years after it should have actual notice of the sale. St. 1888, c. 390, § 57. The effect upon the right to redeem from a tax sale of a foreclosure and a subsequent transfer of the title so obtained was recently before us in McGrauley v. Sullivan, 174 Mass. 303. It was there held that the right given to a mortgagee by St. 1888, c. 390, § 57, cl. 4, is not dependent upon his continuing to be a mortgagee, but is an interest in the land mortgaged which passes [434] to any grantee of that land who claims under a conveyance of it by the mortgagee whether before or after foreclosure. In the present case the bank is such a grantee, and the ruling that the petitioner’s title was subject to redemption by the bank was right. The other ruling excepted to was that the petitioner’s title was subject to the provisions of St. 1888, c. 390, § 76. That section gives to this court equity powers in all cases of sale of real estate for the payment of taxes, if relief is sought within five years from the sale. The time so limited had not expired when the ruling was made and the petition dismissed. The equity powers so given include jurisdiction of a bill to redeem the land from the petitioner brought by one having a statute right to redeem. Therefore the petitioner’s 'title was, upon the facts set out in the bill of exceptions, subject to the provisions of section seventy-six, as stated in the ruling. Exceptions overruled.