BARBARA VANDERHOOP, EXECUTRIX OF THE ESTATE OF LEONARD VANDEROOP, JR. v. JEFFREY L. MADISON, TRUSTEE OF THE TACKNASH REALTY TRUST

INTRODUCTION

In this action, Petitioner Barbara Vanderhoop, Executrix of the Estate of Leonard Vanderhoop, Jr., (“Vanderhoop” or “Petitioner”) petitions under G. L. c. 60, § 65 to foreclose the right of redemption for a property in Aquinnah (formerly Gay Head), Massachusetts, previously assessed to the “Heirs of Hebron Wamsley,” and referred to variously in recorded instruments as the “Home Lot” or “Homestead” (the “Homestead Lot”). Vanderhoop claims title to the Homestead Lot by virtue of four 1918 collector’s deeds purporting to convey said Lot, together with six other listed parcels of land also assessed to the “Heirs of Hebron Wamsley,” (collectively the “Wamsley Lots”) to Edwin D. Vanderhoop as the high bidder at a public auction held to recover back taxes.

Respondent Jeffrey L. Madison, Trustee of the Tacknash Realty Trust, (“Madison” or “Respondent”) answered Vanderhoop’s petition, claiming to own an undivided interest in the Homestead Lot, and asserting that the four 1918 tax deeds are invalid.

On December 2, 2009, this court conducted a hearing on Madison’s Motion for Summary Judgment that the subject tax deeds were invalid and of no force and effect. Based on the undisputed material facts, and for the reasons set forth below, I find and rule that Madison is entitled to summary judgment dismissing Vanderhoop’s petition, on the grounds that the subject tax deeds were void from inception because the deeds and the notice of the tax sale did not conform in important respects to the applicable statutory requirements. More specifically, the subject tax deeds violated the applicable statutory requirements by purporting to convey the multiple Wamsley Lots for one lump sum sales price. Additionally, the published notice of the tax sale was similarly defective in aggregating the amount of taxes owed for the Wamsley Lots in each tax year, instead of reciting the amount owed for each of the Lots.

UNDISPUTED MATERIAL FACTS

The summary judgment record reveals the following undisputed material facts:

1. Four deeds dated March 20, 1918 recite that Amos P. Smalley (“Smalley”), as “Collector of Taxes for the Town of Gay Head for the years 1912, 1913, 1914, 1915,” conveyed to Edwin D. Vanderhoop seven parcels of land described as “Homestead, Lots Nos. 709, 85, 90, 91, Common Land, Beach Lots Nos. 543, 518,” which had been assessed to the “Heirs of Hebron Wamsley” (the “Tax Deeds”).

2. Each of the Tax Deeds recites that the assessors of taxes for the Town of Gay Head committed to Smalley a list of assessments for taxes made to the Heirs of Hebron Wamsley for one specified year —1912, 1913, 1914, or 1915.

3. Each of the Tax Deeds states that the “Heirs of Hebron Wamsley” were assessed a stated sum of money for State, County and Town taxes “as owners of the land in … Gay Head” described as “Homestead, Lots Nos. 709, 85, 90, 91, Common Land, Beach Lots Nos. 543, 518.” The single stated sum in the Tax Deed for the taxes assessed on said land in 1912 is “Two dollars and Fifty-nine cents.” The single stated sum in the Tax Deed for the taxes assessed on said land in 1913 is “One dollar and Forty-nine cents.” The single stated sum in the Tax Deed for the taxes assessed on said land in 1914 is “Two dollars and Seventy cents.” The single stated sum in the Tax Deed for the taxes assessed on said land in 1915 is “Two dollars and Seventy cents.”

4. Each of the Tax Deeds recites that on June 27, 1917, Smalley “demanded of said Heirs of Hebron Wamsley the payment of said taxes,” and that when the taxes were still unpaid fourteen days after the demand, he “advertised that the smallest undivided part of said land sufficient to satisfy said taxes with interest and all legal costs and charges, or the whole of said land if no person offers to take an undivided part thereof, would be sold by public auction for the payment of said taxes … on the twentieth day of February A.D. 1918.” The Tax Deeds each recite that said advertisement was posted in the Post Office, and was published for three successive weeks in the Vineyard Gazette, “the last publication whereof was one week before the time appointed for the sale.”

5. Each of the Tax Deeds recites that when the taxes remained unpaid, Smalley proceeded to sell the described land by public auction at the appointed time and place “for discharge and payment of said taxes thereon with interest and said legal costs and charges,” and “no person offering at said auction to take an undivided part of said land, the whole of said land was struck off to Edwin D. Vanderhoop …for the sum of Seven dollars and Eleven cents, he being the highest bidder therefor.”

6. The four Tax Deeds were signed by Smalley, and recorded on March 21, 1918 in the Dukes County Registry of Deeds.

7. The Tax Deed reciting the tax assessment committed for 1912 was recorded at Book 146, Page 467; the Tax Deed reciting the tax assessment committed for 1913 was recorded at Book 146, Page 470; the Tax Deed reciting the tax assessment committed for 1914 was recorded at Book 146, Page 473; and the Tax Deed reciting the tax assessment committed for 1915 was recorded at Book 146, Page 476.

8. A notice of sale, entitled “TAX COLLECTOR’S NOTICE OF SALE” (“Notice of Sale”) was published in the January 31, February 7, and February 14, 1918 [Note 1] editions of the Vineyard Gazette. Said Notice of Sale stated in part:

The owners and occupants of … real estate, situated in the Town of Gay Head … and the public, are hereby notified that the taxes assessed for the years hereinafter specified, according to the list committed to me as Collector of Taxes for said Gay Head by the Assessors of Taxes, remains unpaid, and that the smallest undivided part of said land sufficient to satisfy said taxes, with interest and all legal costs and charges, or the whole of said land if no person offers to take an undivided part thereof, will be offered for sale by public auction at the School House in said Gay Head, on Wednesday, the twentieth day of February, 1918 … for the payment of said taxes, with interest, costs, and charges thereon, unless the same shall previously be discharged….

9. The Notice of Sale includes the names of six different “owners” or “occupants” — each followed by a listing of one or more parcels of land and the amount of taxes due from the listed owner(s) or occupant(s) of that land for each of the years 1912, 1913, 1914, and 1915, as well as a total amount due for all four years. One of the listings in the Notice of Sale is as follows:

HEIRS OF HEBRON WAMSLEY — Homestead, Lots Nos. 709, 85, 90, 91, Common Land, Beach Lots Nos. 543, 518. Taxes for the Years 1912, 1913, 1914, 1915:

Tax for 1912, $2.59

Tax for 1913, 1.49

Tax for 1914, 2.70

Tax for 1915, 2.70

Total Taxes Due, $9.48

10. The Notice of Sale states that it was made by “Amos P. Smalley, Tax Collector for the Town of Gay Head, For the years 1912, 1913, 1914, 1915.”

11. The parcel described in the Tax Deeds as “Homestead” is the same 30-acre parcel set off to Hebron Wamsley and described in the recorded Set Off [Note 2] by metes and bounds without an identifying lot number, but titled “Hebron Wamsley Home Lot.”

12. There is no probate record for Hebron Wamsley in either Dukes County or Bristol County, and there is no record at the Dukes County Registry of Deeds of Hebron Wamsley deeding out the Hebron Wamsley Home Lot, or the Homestead, or property of any vaguely similar description, during the years 1871 through 1918.

13. The Homestead Lot is contiguous with only one of the six other parcels listed in the Tax Deeds as comprising the assessed land. Two of the other parcels are contiguous with each other, but not with the Homestead Lot.

14. The Annual Report of the Town Officers of the Town of Gay Head Massachusetts (the “Annual Report”) For the Year Ending February 15, 1912 lists H. L. Vanderhoop as the Tax Collector. The Annual Reports for the years ending February 20, 1913, February 19, 1914, February 22, 1915, and February 14, 1916, each list Amos P. Smalley as the Tax Collector. The Annual Report for the year ending February 13, 1917 lists William D. Vanderhoop as the Tax Collector. The Annual Report for the year ending December 31, 1917 lists John W. Belain as the Tax Collector. The Annual Report for the year ending December 31, 1918 lists Napoleon B. Madison as the Tax Collector.

15. The Annual Reports for the years ending February 19, 1914, February 22, 1915, February 14, 1916, February 13, 1917, December 31, 1917, and December 31, 1918, each list Edwin D. Vanderhoop as one of the tax assessors.

16. The Annual Report for the year ending December 31, 1918 lists a payment made to Smalley “for collecting taxes, years 1912, 1913, 1914, and 1915.”

17. According to the Land Court Examiner’s Report, [Note 3] by numerous mesne conveyances and inheritances, the title to the Homestead Lot was held as of 1978, subject to the Tax Deeds, as follows:

1/3 interest of Edwin D. Vanderhoop had vested in Leonard F. Vanderhoop, Jr.

1/3 interest of Tolmon (or Tolman) Spencer’s interest had vested in Francis F. Cournoyer, Trustee

1/3 interest of William Wallace James had vested in Rolfe Lumley

18. According to the Land Court Examiner’s Report, by deed dated February 3, 1994, recorded in the Dukes County Registry of Deeds on March 4, 1994 at Book 628, Page 251, Leonard F. Vanderhoop, Jr. acquired Rolfe Lumley’s 1/3 interest in the Homestead Lot.

19. According to the Land Court Examiner’s Report, by deed recorded in the Dukes Registry of Deeds at Book 429, Page 883, Defendant Madison acquired the 1/3 interest in the Homestead Lot held by Francis F. Cournoyer, Trustee.

20. According to the Land Court Examiner’s Report, title to the Homestead Lot is currently held, subject to the Tax Deeds, as follows:

2/3 Estate of Leonard F. Vanderhoop, Jr.

1/3 Jeffrey L. Madison, Trustee of Tacknash Realty Trust

21. There is no notice or record in the Dukes County Registry of Deeds that the right of redemption has been foreclosed on the Homestead Lot.

22. With the exception of the instant case, there have been no proceedings in the Land Court to foreclose the right of redemption for the Homestead Lot.

THE RESPONDENT’S SUMMARY JUDGMENT MOTION

Madison advances several arguments as to why the Tax Deeds are invalid, including: (1) that the published Notice of Sale failed to separately list the amount of taxes due on each of the Wamsley Lots, as required by statute; (2) that the tax deeds are based on the unlawful sale of the seven Wamsley Lots as a unit for one lump sum, in violation of the applicable statute; (3) that the person who issued the tax demand, conducted the tax sale, and signed the Tax Deeds was without authority to do so because he did not then hold the position of Gay Head Tax Collector; (4) that the demand for taxes made on the “Heirs of Hebron Wamsley” failed to satisfy the statutory requirement that demand be made on a person named in the demand, where the names of the Wamsley heirs were known to the Assessors at the time; (5) that a tax lien never attached to the Wamsley Lots because the several noncontiguous Lots were unlawfully assessed together as a single unit; (6) that the Notice of Sale description of the Homestead Lot as simply “Homestead” lacked the specificity required by statute; and (7) that the tax sale involved self-dealing by the purchaser, Edwin D. Vanderhoop, who was then a member of the Gay Head Board of Assessors.

Vanderhoop opposes the Motion for Summary Judgment, arguing that the proceedings surrounding the sale of the Wamsley Lots benefit from a presumption of regularity which Madison has not overcome. Vanderhoop further argues that, if not plainly incorrect, the Respondent’s claims are not appropriate for summary judgment because there are disputed issues of material fact relating to whether any of the tax sale irregularities claimed by the Respondent are substantial or misleading. Finally, Vanderhoop argues that the Respondent’s claims are barred by laches because, although Madison admits he had knowledge of the Tax Deeds for at least twenty years, he never before challenged their validity. Vanderhoop contends that this delay has been prejudicial to the Petitioner.

Standard of Review

Summary judgment is appropriate when there are no genuine issues of material fact, and judgment may be entered as a matter of law. Mass. R. Civ. P. 56(c); Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). The moving party has the burden of demonstrating the absence of a genuinely contested issue of material fact. Ng Brothers Construction, Inc. v. Cranney, 436 Mass. 638 , 644 (2002). In reviewing a motion for summary judgment, the court reviews the evidence in the light most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). Any doubt as to the existence of genuine issues of fact must be resolved against the moving party. Noble v. Goodyear Tire and Rubber Co., Inc., 34 Mass. App. Ct. 397 (1993). The moving party who does not bear the burden of proof at trial will prevail “only if the moving party demonstrates, by reference to the materials described in rule 56(c), unmet by countervailing materials, that the nonmoving party has no reasonable expectation of proving an essential element of the case.” Mammone v. President and Fellows of Harvard College, 446 Mass. 656 -657 (2006) (emphasis in original). “It is sufficient that the moving party demonstrate that proof of [a required] element is unlikely to be forthcoming at trial.” Mammone, 446 Mass. at 657 (internal quotations omitted).

In this case, it is Petitioner Vanderhoop, the non-moving party, who ultimately bears the burden of establishing that the Tax Deeds resulted in a valid conveyance of the land described therein. G. L. c. 60, § 65. To do so, Vanderhoop must establish that both the Tax Deeds themselves and the related tax sale proceedings were in compliance with the statutory requirements in effect at the time.

Vanderhoop has two advantages in this regard. First, the timely recorded tax deeds are prima facie evidence of all facts essential to their validity. St. 1909, c. 490, Pt. II, § 44, as amended by St. 1911, c. 390, as amended by St. 1915, c. 237, § 1. Second, when the validity of a tax deed is challenged long after the event, the factor of time is appropriately weighed against the party making the challenge. Krueger v. Devine, 18 Mass. App. Ct. 397 , 402 (1984). Even with these advantages, however, the Plaintiff is unable to overcome two fatal defects appearing on the faces of the Tax Deeds and the Notice of Sale. Specifically, the Tax Deeds must be deemed void from inception because: (1) they unlawfully purport to convey the several parcels described therein as a single unit of land for one lump sum payment; and (2) the Notice of Sale referenced in the Tax Deeds did not specify the amount of tax due on each of the seven Wamsley Lots, but instead aggregated the taxes due for all seven of the parcels into a single amount for each tax year.

Discussion and Analysis

Madison is entitled to summary judgment that the Tax Deeds are void as a matter of law because they failed to conform in important respects to the applicable statutory requirements at the time of the tax sale. While there are disputed issues of fact as to whether certain of the claimed errors in the tax sales proceedings are “substantial or misleading” so as to rebut the prima facie evidence of validity accorded by statute, at least two of the defects appearing on the faces of the Tax Deeds and the related Notice of Sale are of such a substantial nature that they render the Tax Deeds void as a matter of law. Moreover, I find that the Respondent’s challenge to the validity of the Tax Deeds is not barred by the doctrine of laches.

Under St. 1909, c. 490, Pt. II, § 36, as amended by St. 1914, c. 198, § 2, in effect at the time the Tax Deeds were issued, and under the current statute, G. L. c. 60, § 37, unpaid real estate taxes become a lien on the assessed property, which may be levied by sale of the property at public auction after notice. Property sold in this manner, however, does not vest absolute title in the purchaser. Rather, until foreclosed by court decree, title remains subject to the taxpayer’s right to redeem the property. St. 1915, c. 237, §16; G. L. c. 60, § 62.

To lawfully effectuate a tax lien and thereafter sell the property, there are certain statutory procedures which a collector of taxes must follow. Under St. 1909, c. 490, Pt. II, § 14, before selling the land of a resident of the city or town, the collector of taxes was required to serve on that resident a statement of the amount of taxes due and a demand for payment. Then, “[i]f the taxes are not paid, the collector shall, at the time and place appointed for sale, sell by public auction the smallest undivided part of the land which will satisfy the taxes and necessary intervening charges, or the whole, if no person offers to take an undivided part….” St. 1909, c. 490, Pt. II, § 42.

Under St. 1909, c. 490, Pt. II, § 41, the tax collector was required to give notice of the time and place at which the sale of the land for payment of taxes would take place, by posting notice at least three weeks before the date of the sale. Additionally, the tax collector was required to publish such notice, containing a “substantially accurate description of the several rights, lots, or divisions of land to be sold, … the amount of the tax assessed on each, and the names of all owners known to the collector.” St. 1909, c. 490, Pt. II, § 39, as amended by St. 1913, c. 255 (emphasis added). “Publication” of such notice was defined in St. 1909, c. 490, Pt. II, § 1 as meaning:

the act of printing it for three successive weeks in a newspaper published in the city or town, if any, otherwise in the county, where the land … is situated. The last publication shall be made at least one week prior to the date stated for the occurrence of the event to which the publication relates.

The deed executed by a collector of taxes following sale at auction:

shall state the cause of the sale, the price for which the land was sold, the name of the person on whom the demand for the tax was made, the places where the notices [of the auction] were posted, the name of the newspaper in which the advertisement was published, and the residence of the grantee, and shall contain a warranty that the sale has in all particulars been conducted according to law.

St. 1909, c. 490, Pt. II, § 44, as amended by St. 1911, c. 370. The statute further provided that:

The deed shall convey, to the purchaser, subject to the right of redemption, all the right and interest which the owner had in the land when it was taken for taxes. The title thus conveyed shall, until redemption or until the right of redemption is foreclosed as herewith provided, be held as security for the repayment of the purchase price …. Such deed shall not be valid unless recorded within thirty days after the sale, and if recorded within said time it shall be prima facie evidence of all the facts essential to its validity.

St. 1909, c. 490, Pt. II, § 44, as amended by St. 1911, c. 370, St. 1915, c. 237, § 1 (emphasis added).

It is undisputed that the Tax Deeds were all recorded within the thirty-day period required by the statute. The resulting prima facie evidence of all facts essential to their validity, however, is overcome in this case by the substantial nature of the errors and irregularities in the proceedings of the collector, as evidenced on the face of the Tax Deeds themselves. Notwithstanding the language in St. 1915, c. 237, §17, which provides that “[n]o tax title shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading,” tax deeds purporting to convey multiple parcels for a lump sum (such as in this case) are not merely irregular or defective. They are absolutely void. Shruhan v. Revere, 298 Mass. 12 , 14-15 (1937); Phelps v. Creed, 231 Mass. 228 , 232 (1918); Barnes v. Boardman, 149 Mass. 106 , 113 (1889). Here, the Tax Deeds each recite a single lump sum of “seven dollars and eleven cents” as the amount Edwin Vanderhoop paid at auction for the “whole of the land,” i.e., all seven of the Wamsley Lots described in the Deeds, without listing the amount of taxes due on each individual Lot.

Additionally, the published Notice of Sale referenced in the Tax Deeds was facially defective because it failed to include “the amount of tax assessed on each lot” as expressly required under St. 1909, c. 490, Pt. II, § 39, as amended by St. 1913, c. 255. The Notice of Sale lists only the aggregate amount of taxes due in each of the four tax years for all seven of the listed Wamsley Lots, as a group. [Note 4] The fact that other tax deeds issued during the same time period and other notices of sale may have shared similar defects does not, as Vanderhoop contends, alter the statutory requirements or the legal consequences of failing to meet those requirements.

I also reject the Petitioner’s argument that Madison’s challenge to the validity of the Tax Deeds is barred by laches. As addressed above, Vanderhoop has never held absolute title to the Homestead Lot under the Tax Deeds, because the potential for redemption continued to exist by right for the first two years after the tax sale, [Note 5] and by judicial action at any time prior to a petition to foreclose redemption. [Note 6]

It is Vanderhoop’s own delayed petition to foreclose which has triggered the Respondent’s challenge to the validity of the Tax Deeds under which Vanderhoop claims title to the Homestead Lot. Vanderhoop’s petition to foreclose redemption was filed more than eighty-five years after such a petition could have been initiated. Vanderhoop should have been aware that a respondent to the instant petition would be entitled to challenge the validity of the subject tax title pursuant to G. L. c. 60, § 70, entitled “Questions of Validity of Title.” Section 70 provides that “[i]f a person claiming an interest desires to raise any question concerning the validity of such a [tax] title, he shall do so by answer filed in the [foreclosure] proceeding….” In these circumstances, Vanderhoop can hardly claim that Madison unreasonably delayed in challenging the Tax Deeds.

Because the Tax Deeds purported to convey multiple parcels for a single lump sum, and because the Notice of Sale referenced in the Tax Deeds failed to list the amount of taxes due on each individual Lot, the Respondent is entitled to summary judgment that the Tax Deeds are void, as a matter of law.

Madison is not entitled to summary judgment that the Tax Deeds are invalid for any of the other reasons raised in his summary judgment motion.

Authority of Amos P. Smalley to Conduct the Tax Sale and Sign the Tax Deeds

Madison’s argument that the Tax Deeds are facially invalid because Smalley was not the Gay Head Tax Collector at the time of the tax sale fails as a matter of law because the undisputed facts, viewed in the light most favorable to Vanderhoop, demonstrate that Smalley was lawfully acting in the capacity as “collector” under the applicable statute.

It is undisputed that Smalley neither held the designated office of Tax Collector for the Town of Gay Head in 1917 when he first published the Notice of Sale, nor in 1918 when he signed the Tax Deeds. The Tax Deeds themselves recite that they are signed by Amos P. Smalley as “Collector of taxes for the Town of Gay Head for the years 1912, 1913, 1914, 1915.” The published Notice of Sale also recites the same four years as the years Smalley was Collector of Taxes. Moreover, the Gay Head Annual Reports issued for the years 1912, 1913, 1914 and 1915 list Smalley as holding the office of Tax Collector, while the Annual Reports for 1917 and 1918 list entirely different persons as holding the office of Tax Collector in those two years. The fact that he no longer held the office of Tax Collector in 1917 and 1918, however, does not mean that Smalley no longer had authority to proceed with sale of the Wamsley Lots by public auction. To the contrary, Smalley’s actions in 1917 and 1918 were consistent with the obligations of a “collector” as defined in the statute.

The term “collector” is defined in St. 1909, c. 490, Pt. II, § 1, the then-applicable statute, not in terms of the office, but rather as meaning “a person receiving a tax list and a warrant to collect the same.” St. 1909, c. 490, Pt. II, § 2 sets forth the duty of the “collector” to collect the taxes and pay the receipts to the city or town treasurer, upon receiving a tax list and warrant from the assessors. This duty, moreover, could extend beyond the term of office. St. 1909, c. 490, Pt. II, § 7 (collector to continue with collection of taxes for warrants committed to him even after his resignation or retirement). In the instant case, the Tax Deeds plainly recite that Smalley received a warrant to collect the taxes assessed to the Heirs of Hebron Wamsley for the years 1912, 1913, 1914, and 1915 (the years Smalley held the office of Tax Collector). Pursuant to St. 1909, c. 490, Pt. II, § 44, as amended by St. 1911, c. 370 and St. 1915, c. 237, § 1, this statement in the recorded Tax Deeds is prima facie evidence of the warrant having been so committed to him. There is no evidence in the summary judgment record suggesting otherwise; nor is there any evidence in the record that the tax list, once committed, was transferred to Smalley’s successor in office. Indeed, the evidence is to the contrary. The Annual Reports memorialize both the receipt of collected taxes from Smalley in the years 1917 and 1918, and the fact that Smalley was compensated for his work “for collecting taxes” in 1918. Accordingly, Madison is not entitled to summary judgment that the Tax Deeds are void because Smalley was not acting within his official capacity when he conducted the tax sale and signed the Tax Deeds.

The Respondent’s Other Challenges

Summary judgment on Madison’s remaining challenges to the validity of the Tax Deeds — that the demand for payment was made upon “the Heirs of Hebron Wamsley” rather that upon a person as required by statute; that a tax lien never attached because the seven Lots were not assessed as individual parcels; that the word “Homestead” as used in the Notice of Sale and Tax Deeds did not sufficiently identify the land being sold; and that Edwin Vanderhoop’s purchase of the Lots at auction involved self-dealing — is precluded by the existence of disputed material facts surrounding the circumstances under which the demand for taxes was made, how the Wamsley Lots were actually assessed, local understanding of the word “Homestead,” and what, if any, of Edwin D. Vanderhoop’s alleged actions can be imputed to the Board of Assessors. Because I have determined that the Tax Deeds are invalid on other grounds, I need not adjudicate these additional challenges to the validity of the Tax Deeds.

Judgment shall enter in accordance with this Decision.

Judith C. Cutler, Justice

Dated: 2 July 2010

Corrected: 28 July 2010