JOSEPH R.W. LAMONTAGNE & others [Note 1] vs. LOUISE T. KNIGHTLY & another. [Note 2]

IRELAND, J. In 1988, the plaintiffs filed a complaint in the Land Court, claiming that the town of Methuen had failed to notify them of two land takings in 1939 and 1944 for nonpayment of taxes and of the subsequent sale of the land, thereby depriving them of due process of law and making the takings invalid. The Land Court entered a judgment for the defendants, holding that (1) the procedure followed by the

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town complied with the requirements of G. L. c. 60, Section 79, for sale of low value land taken for nonpayment of taxes and (2) G. L. c. 60, Section 80C, barred the plaintiffs' petition. The plaintiffs appealed to this court. We affirm.

We accept the findings of fact of the judge below because they are not clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). The dispute involves a piece of land located in the town of Methuen (town) known as the "Batty Lot." On March 14, 1925, Angelina Lamontagne acquired title to the Batty Lot. She was then married to Remi Lamontagne; the plaintiffs Lena Vitale, Blanche L. Silva, and Joseph Lamontagne are their children, and the plaintiff Germaine Lamontagne is the wife of Joseph. From 1923 to some time in 1928, Joseph, Lena, Blanche, and Rose Alba Lamontagne and their parents lived on the property. On August 27, 1928, Angelina died intestate, and her husband, Remi, was appointed administrator of her estate. The probate of her estate showed that the Batty Lot, her only listed asset, was appraised at a value of six hundred dollars and passed to her husband and the children. G. L. c. 190, Sections 1(2) & 3.

In the latter part of 1928, Remi Lamontagne placed Joseph, Blanche, and Lena in an orphanage in the town and, apparently, kept Rose Alba with him. On October 14, 1930, Remi died. The record contains no evidence to indicate that his estate was ever probated. Joseph remained in the orphanage until 1931 or 1932 when, at the age of approximately thirteen, he went to live with an uncle in West Andover. Blanche and Lena remained in the orphanage until approximately 1933, when Blanche was about sixteen years of age and Lena about nineteen years of age. Rose Alba died in 1931.

In September, 1938, the town made a demand upon "Remi Lamontagne et al" for nonpayment of taxes for the year 1937, and in June, 1939, the town effected a taking of the Batty Lot for the nonpayment of taxes. In April, 1942, an affidavit to foreclose tax title land of low value was issued as to the Batty Lot. The affidavit stated that the land had

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been advertised in a local newspaper and that notice of the sale had been posted as required by G. L. c. 60, Section 79, and the Land Court judge found that the affidavit "evidence[d] the Commissioner's compliance with the notice requirements set forth under G. L. c. 60, Section 79." On June 22, 1942, the town conveyed the Batty Lot to Michael Silva, brother-in-law of the plaintiff, Blanche Lamontagne Silva. Two years later, on or about November 27, 1944, the town effected a taking of the Batty Lot for nonpayment of taxes assessed to Michael Silva for the year 1943.

In 1946, after being contacted by Michael Silva, Joseph Lamontagne acquired the Batty Lot from him, taking title in the name of Joseph and Germaine Lamontagne, husband and wife, as joint tenants. Joseph then paid fifty-two dollars in real estate taxes to the town. He never again paid any real estate tax on the property.

In February, 1947, the town again issued an affidavit to foreclose tax title land of low value with respect to the Batty Lot. As did the 1942 affidavit, this affidavit stated that the land had been advertised in a local newspaper and that the posting requirement of G. L. c. 60, Section 79, had been met, and the Land Court judge found the affidavit "evidence[d] the Commissioner's compliance with notice requirements as set forth in G. L. c. 60, Section 79." By an April, 1947, treasurer's deed, the town conveyed the Batty Lot to William E. Knightly and Alfred Knightly. [Note 3] The treasurer's deed to the Knightlys listed Joseph R.W. Lamontagne and Germaine Lamontagne along with Michael Silva as interested persons served with notice of sale by registered mail under G. L. c. 60, Section 80A. All of the foregoing (the conveyances, affidavits, deeds, as well as the two tax takings) are recorded in the Essex North District registry of deeds. The defendants, William and Louise Knightly, are the current holders of record

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title to the Batty Lot and have paid all real estate taxes due thereon since 1947.

The Land Court judge also found that, except for the single tax payment made by Joseph in 1946, the record failed to reveal that the plaintiffs used, occupied, rented out, visited, improved, or paid outstanding taxes on the property after their parents' deaths.

To summarize, before the town took the Batty Lot in 1939, the tax assessment and demand were sent to "Remi Lamontagne et al." The last recorded deed of the property ran to Angelina, Remi's wife, who died intestate. Her estate was probated, and Remi and the children were listed as heirs. Remi died in 1930; there were no probate proceedings, and his three surviving children (Joseph, Blanche and Lena), who had earlier been placed in an orphanage (in Methuen) by their father after their mother's death, had by the time of the tax taking left the orphanage and were in parts unknown. (Except for Joseph, [Note 4] the record sheds no light on the children's whereabouts after leaving the orphanage.) As already stated, the town's demand was directed to "Remi Lamontagne et al."; the children were not served with the demand or with notice of the subsequent taking. [Note 5] Aware of no reason not to, the town took the land. The subsequent foreclosure in 1942 was under G. L. c. 60, Section 79, for land of low value; service of notice was not required and was not given. Michael Silva, Blanche Lamontagne Silva's brother-in-law,

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then acquired record title from the town. He was the record owner in 1944, when the town took the property the second time. Joseph, who had been serving in the United States Army from 1940 to 1945, acquired the property from Silva in 1946 and paid the real estate taxes once, but never again. The 1947 foreclosure was also under G. L. c. 60, Section 79.

Foreclosures of tax title of land of low value under G. L. c. 60, Section 79. This case is not the first challenge [Note 6] to the constitutional validity of G. L. c. 60, Section 79, [Note 7] which governs the

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foreclosure by sale of land of low value. The Batty Lot is, and at all relevant times has been, land of low value. [Note 8] General Laws c. 60, Section 79, as in effect at the relevant time, required the issuance and recording of an affidavit of the Commissioner of Corporations and Taxation that the value of the land in question was less than the statutory ceiling, see notes 7 and 8 supra, and was insufficient to meet the taxes, interest, and charges due thereon together with the expenses of a judicial foreclosure. The statute also required that notice of the time and place of the sale be given by posting a notice of the sale in some convenient and public place in the town at least fourteen days before the sale, but contained no requirement of any other form of notice before either the recording of the affidavit or the sale. Since 1963 (St. 1963, c. 201) publication in a newspaper has been required prior to sale, but the statute contains no requirement of notice to the assessed owners by mail. See Guaranty Mort. Corp. v. Burlington, 385 Mass. 411, 415-416 (1982) (effective termination of right to redeem under low value tax sale procedure requires issuance and posting of commissioner's affidavit and posting of notice of sale for fourteen days). General Laws c. 60, Section 79, facilitates governmental collection of taxes by providing an expeditious, nonjudicial procedure for the sale of land of low value. The public interest "requires that land be taken for nonpayment of taxes and sold under such circumstances that the necessary revenue may be obtained." Napier v. Springfield, 304 Mass. 174, 177 (1939).

Foreclosure of right of redemption of land in the normal course. The requirements of G. L. c. 60, Section 79, are in sharp

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contrast to the more demanding procedures which apply to foreclosures not involving land of low value. See G. L. c. 60, Sections 65, 66 (interested persons must be notified by registered mail); Boston v. James, 26 Mass. App. Ct. 625, 628-630 (1988) (municipality has constitutional obligation to provide notice to taxpayers of petition to foreclose rights of redemption). See also Christian v. Mooney, 400 Mass. 753, 761 (1987) (how far municipality must search involves whether redemption of land is foreclosed in normal course or under procedure applicable to land of low value).

Due process requirements. In 1983, in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983), the United States Supreme Court addressed the issue of the notice required prior to a judicial foreclosure sale for failure to pay taxes. The Court held that the due process clause of the Fourteenth Amendment to the United States Constitution requires that a mortgagee be given notice by mail before foreclosure by sale of the mortgaged property. Id. at 798-800. The Court said that "[n]otice by mail or other means as certain as to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any [emphasis original] party . . . , if its name and address are reasonably ascertainable" (emphasis supplied). Id. at 800.

It is to be noted that, under Massachusetts law, a town board of assessors "must use `reasonable diligence' to try to determine the owner" of real estate from records in the county's registry of deeds and registry of probate. Robertson v. Plymouth, 18 Mass. App. Ct. 592, 594 (1984), quoting from Hardy v. Jaeckle, 371 Mass. 573, 580 (1976). "Reasonable diligence, of course, varies with the circumstances." Robertson v. Plymouth, supra. In the case of land of low value, furthermore, less effort by a municipality to effect notice will constitute "reasonable diligence." See id. at 596 (noting that it is too burdensome for board to examine title to every parcel of low value land before sale, court held that town was not required to search probate records where most recent transfer of parcel recorded in county registry of deeds

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was in 1852 and county probate records would not have shown owners at time of taking). See also Hilde v. Dixon, 16 Mass. App. Ct. 981, 983 (1983).

Prior to the Mennonite case, the Supreme Judicial Court had upheld the adequacy of notice by publication to protect the due process rights of a mortgagee of land of low value. Guaranty Mort. Corp. v. Burlington, 385 Mass. 411 (1982). After the Mennonite case, the Supreme Judicial Court stated in Christian v. Mooney, 400 Mass. 753, 761 n.10 (1987), appeal dismissed and cert. denied, 484 U.S. 1053 (1988), "The due process considerations stated in the Mennonite case cast some doubt at least on the reasoning in Guaranty Mortgage Corp. v. Burlington, [supra at 419] . . . ." We interpret that comment in Christian as addressing situations in which a mortgagee of record does not receive notice of a taking in spite of the fact that "its name and address are reasonably ascertainable" (emphasis supplied). Mennonite, 462 U.S. at 800. Without notice, a mortgagee would have no reason to suspect that its property interests might be affected. We do not, however, believe that the comment in Christian indicates that the Supreme Judicial Court intended to overrule Guaranty in its entirety; that is, we do not think the court intended the doubt it expressed in Christian to extend to low value land where the owners cannot readily be located by the town (the 1939 taking and 1942 foreclosure) and where the owner fails to pay taxes he knew to be due (the 1947 foreclosure) (compare Guaranty, 385 Mass. at 417 [owner on notice at time of title acquisition of unpaid taxes and taking of land by town]; contrast Christian, 400 Mass. at 760 [plaintiffs had no knowledge nor were they reasonably expected to know of tax taking or foreclosure proceeding]). See Christian, 400 Mass. at 761. Accord Hilde v. Dixon, 16 Mass. App. Ct. at 982-983; Robertson v. Plymouth, 18 Mass. App. Ct. at 596 (both decided after Mennonite but prior to Christian). We conclude that this case is governed by the rationale of Guaranty and, accordingly, we are unpersuaded by the due process challenge to the notice requirements of G. L. c. 60, Section 79, as applied to the plaintiffs in this case.

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The 1939 taking and the 1942 foreclosure. While an owner no doubt has due process rights which may be violated when his property is taken by a town without constitutionally adequate notice of nonpayment of taxes, the pivotal question in each case is what notice is due the owner. A relevant consideration is whether the names and addresses of the owners are "reasonably ascertainable" by the town. See the Mennonite case, 462 U.S. at 800. At the time of the 1939 taking and the 1942 foreclosure there was no deprivation of the due process rights of the plaintiffs [Note 9] because their whereabouts could not have been reasonably ascertained. Angelina's estate had been probated but the whereabouts of the children was unknown, and Remi's estate had not been probated. There is no suggestion in the record that the plaintiffs could with reasonable diligence have been located. Robertson v. Plymouth, 18 Mass. App. Ct. at 594. Indeed, based on the facts before us, determining their whereabouts would have involved more than reasonable efforts by the town. See Mennonite, 462 U.S. at 798-800. By the time of the taking in 1939, the children, who had earlier moved from the family home to an orphanage, had already left the orphanage some six or seven years previously, and except for Joseph (see note 4 supra) the record does not indicate their whereabouts thereafter.

Our conclusion is reinforced by a careful reading of Christian. The same court that questioned the reasoning in Guaranty also observed that "[p]ractical considerations, as well as unknown owners' due process rights, have to be relevant in determining how far a municipality must search . . . ." Christian, supra at 761. We conclude that the process that was due the plaintiffs in the 1939 taking and the 1942 foreclosure did not include the obligation that the town search for people whose whereabouts were unknown. Compare Robertson v. Plymouth, 18 Mass. App. Ct. at 594-596. Contrast

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Bartevian v. Cullen, 369 Mass. 819, 821-825 (1976) (taking invalid because demand not mailed to address on deed); Pass v. Seekonk, 4 Mass. App. Ct. 447, 451-452 (1976) (taking invalid where demand not mailed to administrator of estate at address on record); Boston v. James, 26 Mass. App. Ct. 625, 626, 628-629 (1988) (notice not mailed to address on deed). Cf. Hardy v. Jaeckle, 371 Mass. at 578-580. To impose such a heavy burden on a town would be impractical, unreasonable, and, in this case, perhaps futile. Compare Boston v. James, 26 Mass. App. Ct. at 629 ("duty according to particular circumstances to . . . consult public records or make other ordinary, simple inquiries"; property involved in decision was not land of low value). Moreover, the Land Court judge found that at the time of the taking the children who are the plaintiffs here "may have been on constructive notice of the same," [Note 10] and that the conveyance of the lot in 1942 was to the brother-in-law of plaintiff Blanche L. Silva. Compare Hilde v. Dixon, 16 Mass. App. Ct. at 981-982. We conclude that the plaintiff children of Remi and Angelina Lamontagne were not deprived of due process and that the first taking and foreclosure were valid. [Note 11] As the plaintiffs' rights as children of Angelina were properly terminated by the foreclosure, the plaintiffs no longer had a right to notice of future takings.

The 1944 taking and the 1947 foreclosure. As noted previously, the owner of the property between June, 1942, and November, 1944, was Michael Silva, the plaintiff Blanche Lamontagne Silva's brother-in-law. On November 27, 1944, the town effected a taking of the Batty Lot for nonpayment of taxes assessed to Michael Silva for 1943. [Note 12] In 1946, Joseph

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and his wife Germaine Lamontagne acquired the Batty Lot from Silva. After the affidavit to foreclose tax title to the property was filed in February, 1947, the town conveyed the lot to the Knightlys in April, 1947, by a treasurer's deed. The treasurer's deed stated that Joseph and Germaine Lamontagne, along with Michael Silva, had been served with notice of the sale by registered mail under G. L. c. 60, Section 80A. Section 80A, inserted by St. 1941, c. 594, Section 3, provides that a statement contained in the treasurer's deed that such service has been made "shall be prima facie evidence thereof." Although Joseph Lamontagne testified that he did not receive any notice relative to the property from the town of Methuen in 1944 and that when he searched his records he did not find anything relative to a tax taking of the property, he did not testify that he did not receive notice of the 1947 sale by the town to the Knightlys. Moreover, Joseph, by paying real estate taxes on the property in 1946, acknowledged, as the Land Court judge found, "that such taxes were then due and would remain so on an annual basis thereafter." Thus, unlike the mortgagees in the Mennonite and Guaranty cases, who had no knowledge that taxes were due, Joseph had actual knowledge that taxes on the property were due. Compare Hilde v. Dixon, 16 Mass. App. Ct. at 982-983.

Furthermore, as noted, the Land Court judge found that there was no indication that, with the exception of this one instance, Joseph or the other plaintiffs ever used, occupied, rented out, visited, improved, or paid outstanding taxes on the property between the time their parents died and the filing of this complaint in 1988. From the time Joseph paid taxes in 1945 or 1946 (and the property was conveyed to the Knightlys in 1947) until the plaintiffs brought this action, more than forty years elapsed. Contrast Bartevian v. Cullen, 369 Mass. at 819, 820 (bill in equity filed same year plaintiff learned of taking and foreclosure); Boston v. James, 26 Mass. App. Ct. at 630. "[W]hen the validity of tax titles is put in question long after the event, it is appropriate for the judge . . . to weigh the factor of time against those making

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the challenge." Robertson v. Plymouth, 18 Mass. App. Ct. at 596, quoting from Krueger v. Devine, 18 Mass. App. Ct. 397, 402 (1984). See also Robertson v. Foley, 15 Mass. App. Ct. 967, 968 (1983). Contrast Christian v. Mooney, 400 Mass. at 753 (defense of laches not available because plaintiffs never had knowledge of tax taking or foreclosure); Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267, 269-270 (1987) (limitations statute [G. L. c. 60, Section 80C, see infra] cannot cure defect based on want of title). This period was twice that needed to acquire title through adverse possession. See G. L. c. 260, Section 21; Robertson v. Foley, 15 Mass. App. Ct. at 968-969. The result is that the Knightlys acquired good title from the town and any right that Joseph and Germaine had was foreclosed without deprivation of due process.

General Laws c. 60, Section 80C. Based on the record and the judge's findings, we conclude that the town made valid takings of the Batty Lot for nonpayment of taxes under the low value procedure and subsequently effected valid conveyances of the land so taken. We observe, however, that, even if the town had failed to comply with the valid notice requirements for foreclosure by sale of low value land, G. L. c. 60, Section 80C, [Note 13] would have allowed the appellants twenty years

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from the time of recording an instrument of conveyance within which to challenge its validity for defective notice. See Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. at 270 (statute designed to correct defects, irregularities, and omissions in procedure or in instrument of taking). The Land Court judge found, and we agree, that the twenty-year limitations period expired long before the filing of the complaint in this case.

Judgment affirmed.