Holbrook v. Brown

Braley, J. The defendants alone having appealed from the final decree, the question before us is whether the plaintiff is entitled to the relief granted. Holbrook v. Schofield, 211 Mass. 234. It is sufficiently certain that the period in which the bank as mortgagee or the plaintiff could have redeemed from the first sale as of right under the R. L. c. 13, § 58, now St. 1909, c. 490, Part II, § 59, cl. 4, had expired at the date of filing the bill. The plaintiff, however, is not without a remedy. By the R. L. c. 13, s. 75, as amended by St. 1905, c. 325, § 3, and codified in St. 1909, c. 490, Part II, § 76, any person having an interest in land sold for the non-payment of taxes where the right to redeem within two years has been lost, may have relief in equity if relief is sought within six years from the sale, and if prior to bringing suit, a tender has been made of an amount sufficient to cover the original sum, intervening taxes, costs, and interest to the date of tender, for a period not to exceed two years from the time of sale. McNeil v. O’Brien, 204 Mass. 594. Solis v. Williams, 205 Mass. 350. Davidson v. Stafford, 210 Mass. 145. The answers admit that the defendant Ellen T. Brown claims title to the premises under the deeds of the collector óf taxes, copies of which are annexed to the bill, and that a sufficient tender has been made, but she contends, that the right to redeem has been lost, as the bank under whom the plaintiff derives ownership by assignment of the mortgage, had actual notice of the first tax sale within two months after it had been made. The several deeds by the collector had been duly recorded when the plaintiff purchased, and while he is charged by the record with constructive notice of the defendant’s title, he also succeeded to all the rights of the mortgagee. Swasey v. Emerson, [545] 168 Mass. 118. R. L. c. 127, § 4. Hills v. Eliot, 12 Mass. 26. Faxon v. Wallace, 98 Mass. 44. McGauley v. Sullivan, 174 Mass. 303. Hawks v. Davis, 185 Mass. 119. The defendants are husband and wife, and upon the death of his mother, by whom the mortgage and note were given, the defendant Frank H. Brown became seised of an undivided half in the equity of redemption. It is stated in the memorandum of the judge, which is to be treated as his findings of fact, that at the request of the bank he promised to provide for payment of the taxes, or to purchase the property and to protect the interest of the mortgagee. Cohen v. Nagle, 190 Mass. 4. The judge found further, that not only did the mortgagee rely upon this promise, but that in making the arrangement he acted in behalf of his wife, who testified she purchased at the sale as well for the benefit of the bank as of herself. The subsequent sales by the collector sanctioned by her, and under which she apparently sought to strengthen and perfect a title now asserted as paramount, were also in direct violation of the agreement. It is unnecessary for the purpose of relief, that there should have been an actual intent to gain an unconscionable advantage. Potter v. Kimball, 186 Mass. 120. If, without deciding, it be assumed that the several assessments and sales were valid, the defendant, if redemption is denied, has succeeded in destroying the title of the mortgagee, which she expressly undertook to protect and preserve. Solis v. Williams, 205 Mass. 350, 353. Abbott v. Frost, 185 Mass. 398. The property had been assessed to the heirs of the mortgagor, and payment of the taxes at the first sale would have enured to the benefit of all parties, and discharged the lien. But if the defendant chose to purchase, the title acquired as between herself, the bank, and the plaintiff, must be deemed by force of the agreement as subordinate to the mortgage. Potter v. Kimball, 186 Mass. 120. Bailey v. Wood, 211 Mass. 37. The findings are not explicit as to the subsequent conduct of the defendants, but it is not shown that either repudiated the agreement, or gave notice of any adverse claim, until the tender was refused and suit had been brought. It is true that the bill was not filed until two years and a half after actual notice of the first sale, but under the circumstances [546] the delay cannot be held to have been unreasonable or unexplained. Widersum v. Bender, 172 Mass. 436, 437. O’Callaghan v. Lancy, 187 Mass. 474. The result is that the decree allowing the plaintiff to redeem, from all the sales having been in accordance with the terms of the statute, it should be affirmed with costs. Ordered accordingly.