Opinion
Decided February 2, 1937.
The purchaser at a tax sale of real estate who omits to give to a mortgagee the notice prescribed by P. L., c. 66, s. 25 acquires no title against him.
PETITION, under Laws 1931, c. 119, to determine the plaintiff's rights under a tax deed as against a mortgagee of the property taxed. In 1930 the property was taxed to the mortgagor. The taxes were not paid, and on June 26, 1931, the collector sold the property at a tax sale to the plaintiff. A deed in pursuance of the sale was given in due course. The mortgagee received notice of the sale from the plaintiff on August 19, 1931.
The question whether the plaintiff's title is subject to the mortgage was transferred without ruling by Johnston, J.
Chester T. Woodbury (by brief and orally), for the plaintiff.
John Scammon and George R. Scammon (the latter orally), for the defendant.
The statute (P. L., c. 66, s. 25) requires the purchaser of real estate sold by a tax collector to give notice to mortgagees within thirty days from the sale, and the sale "shall be void as against any mortgagee to whom such notice" is not given. The requirement of notice within the time specified is a material condition "because the statute makes it so." Derry Bank v. Griffin, 68 N.H. 183, 184. The principle that in all cases of sales of real estate for non-payment of taxes "every prerequisite to the exercise of the power must precede its exercise" (Cahoon v. Coe, 57 N.H. 556, 569) extends to matters to be performed in order that a sale include a mortgage interest, and the statutory regulations are fixed and rigid.
Decree for defendant.
PAGE, J., was absent.