23 Mass. App. Ct. 618

Louis Decota vs. Town of Stoughton (and a companion case1).

Norfolk.

January 21, 1987.

— March 6, 1987.

Present: Kass, Quirico, & Warner, JJ.

Joyce Frank for the defendant.

Francis J. Finnell for the plaintiff.

Warner, J.

On April 8, 1976, the plaintiff commenced two eminent domain actions (later consolidated) against the defendant, the town of Stoughton. On December 12, 1985, the parties entered into an agreement for judgment which called for the payment to the plaintiff of $650,000 on account of the land takings. Execution issued on December 19, 1985. The treasurer-collector for the town made an examination of the collector’s records about February 11, 1986, which revealed that the plaintiff owed real estate taxes on properties not subjects of the taking in the amount of $18,984.93. Relying on G. L. c. 60, § 93, as amended by St. 1945, c. 397, § 2, the pertinent *619portions of which are set out in the margin,2 the treasurer-collector, acting as treasurer, subsequently withheld that sum from the amount paid pursuant to the agreement for judgment. Thereafter, the plaintiff filed motions for successive or alias executions for the amount withheld plus interest which were allowed by a Superior Court judge. From that action, the town appeals.

The parties are in agreement that (1) the remedies afforded municipalities for the collection of taxes are cumulative, see Boston Five Cents Sav. Bank v. Boston, 318 Mass. 183, 188 (1945), and (2) G. L. c. 60, § 93, provides a statutory set-off procedure. Id. at 185-186. The plaintiff does not contest, nor could he, the assessment or the amount of the taxes in question. See Sears v. Nahant, 221 Mass. 435 (1915); Boston v. Second Realty Corp., 9 Mass. App. Ct. 282 (1980), and cases cited. Rather, the plaintiff argues, the town is barred from setting off the amount of these real estate taxes because it would have been foreclosed from bringing an action of contract against the plaintiff to recover them. See G. L. c. 60, § 35, and G. L. c. 260, § 2.3

One of the ways by which a municipality may recover delinquent real estate taxes is by an action in contract. G. L. c. 60, §35, as appearing in St. 1946, c. 251, § l.4 If that route is *620chosen, the six-year statute of limitations contained in G. L. c. 260, § 2, applies. Boston v. Gordon, 342 Mass. 586, 589-591 (1961).5 However, we think the plain language of the statutes involved and the obvious purpose for which they were enacted, see 275, 280-281 (1983), compel the conclusion that the Legislature intended the remedy provided by G. L. c. 60, § 93, to be not only cumulative but unaffected by any statute of limitations. General Laws c. 60, § 35, itself provides that an action in contract is only one method for the collection of delinquent taxes from the taxpayer; such may be recovered “in an action of contract or in any other appropriate action, suit or proceeding . . . against the person assessed for such tax” (emphasis supplied). A “statute of limitations bars the [particular] remedy but does not destroy the right.” Mulligan v. Hilton, 305 Mass. 5, 11 (1940). The “language [of G. L. c. 60, § 93] is broad in scope. It authorizes the treasurer to ‘withhold payment of any money payable to any person’ whose taxes are unpaid in whole or in part. It empowers the treasurer to withhold voluntarily, and *621makes such action mandatory on him if the collector so requests. The only limitation is that the amount withheld shall not exceed the unpaid tax with interest and costs.” Boston Five Cents Sav. Bank v. Boston, supra at 186. “Clearly the withholding in question was authorized by § 93 unless it was expressly or impliedly prohibited by some other provision of law.” Ibid. We hold that there is no such prohibition. The Legislature could, and we think did, determine that where public funds are to be paid to a delinquent taxpayer it is appropriate and in the public interest that, by a set-off procedure, the taxpayer satisfy his outstanding proportionate obligation (to the extent of the available payment) to fund the operation of the government, see art. 10 of the Declaration of Rights of the Constitution of the Commonwealth, without regard to whether that obligation could be enforced by an in personam action in contract against the plaintiff. See Boston v. Gordon, supra at 591. The statutory scheme in this regard is consistent. See the essentially parallel provisions of G. L. c. 79, § 44A, which applies when the unpaid taxes relate to the land taken by eminent domain. See also G. L. c. 41, § 38A, as appearing in St. 1941, c. 211. (“Such a collector [of taxes] shall in the collection of such accounts [due to a city or town] have all the remedies provided by sections thirty-five, thirty-six and ninety-three of chapter sixty for the collection of taxes on personal estate”).

The orders allowing the motions for issuance of successive or alias executions are vacated.

So ordered.

Decota v. Stoughton
23 Mass. App. Ct. 618

Case Details

Name
Decota v. Stoughton
Decision Date
Mar 6, 1987
Citations

23 Mass. App. Ct. 618

Jurisdiction
Massachusetts

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