MISC 70221

July 23, 1975

Plymouth, ss.

Randall, J.



Respondent [Note 1] Andrews brought two petitions, Miscellaneous Case No. 69278 to establish title to a lot of land identified as "Plot 14 Cabot St." and Miscellaneous Case No. 69279 to establish title to a parcel of land identified as "Plot 15 Cabot St.", both in Brockton, Plymouth County, Massachusetts, under the provisions of General Laws, Chapter 60, Section 80B. [Note 2] Answers were filed in these cases by Arlene Canada Terrell and Eva Jefferson Newby and they were ordered to try their title. They thereupon brought the present cases, Miscellaneous Case No. 70221 for "Plot 15 Cabot St." and Miscellaneous Case No. 70222 for "Plot 14 Cabot St." both in said Brockton. The complaints herein, identical except for the parcels claimed, pray that the title obtained by the respondent, under the provisions of Chapter 60 be declared invalid, that the petitioners be determined to be the owners of the parcels and be permitted to redeem title thereto upon terms to be set by the Court.

The respondent Andrews filed an answer in each of the present cases alleging that the taking and sale of the parcels to the respondent was valid, that respondent Andrews has a title superior to that of petitioners and that petitioners are guilty of laches. The cases were heard on February 19, 1975, with a stenographer being sworn to record the testimony.

The cases were partially submit ted on the following "Agreed Partial Statement of Facts":

1. Petitioners are residents of New York, N.Y.

2. Respondent is a resident of Bridgewater, Plymouth County, Mass.

3. Respondent in these actions is petitioner in Cases No. 69278 and 69279 in this Court, actions brought to establish title to certain land in Brockton, Plymouth County, Mass., under the provisions of Chapter 60, Section 80B of Massachusetts General Laws.

4. Petitioners in these actions as respondents in said actions to establish title, have filed answers claiming title adverse to the title of the petitioner therein.

5. The land in question consists of parcels of land situated on Cabot Street, Brockton, Mass., known as Plots 14 and 15 Cabot Street (Plan 139).

6. Alleged title in respondent, Robert E. Andrews derives from conveyance from Thelma Smith Mosbey (March 21, 1973).

7. Said Thelma Smith Mosbey's title derives from conveyance by City of Brockton Treasurer's deed (Dec. 26, 1952).

8. City of Brockton took said parcels for nonpayment of taxes (June 8, 1948), from John C. Canada. (See A, B, C, D, E attached hereto).

9. Petitioners, Arlene Canada Terrell and Eva Jefferson Newby are children of said John C. Canada.

10. Said John C. Canada died intestate April 27, 1936, a resident of Brockton.

11. A petition for probate of said John C. Canada's estate was filed in Plymouth Probate Court on June 8, 1936, by his widow, Rebecca E. Canada but the petition for administration was never allowed. (See F attached hereto).

12. Petitioner, Arlene Canada Terrell, at the time of her father's death was a minor.

13. In addition to the widow (deceased May 9, 1944), and both petitioners herein said owner John C. Canada was survived by a son John Williams Canada (deceased March, 1972) and a son Frederick Canada.

14. The taking of the land in issue refers only to John C. Canada as owner thereof, said John C. Canada having died twelve years before said taking.

15. Arlene Canada Terrell and Eva Jefferson Newby represent only a one-half (1/2) interest in the real estate involved in this case.

16. The parties interested in the remaining one-half (1/2) interest have not been represented in these proceedings and their rights have been forfeited.

17. The taxes paid to the City of Brockton since 1953 through 1974 amount to $534.78. The interest on these taxes from year to year at the rate of interest of 6-1/2% as called for by the statute amounts to $l74.00, making a total of taxes and interest of $708.78 [Note 3]

Testimony was taken from Richard E. O'Flaherty an assessor for the City of Brockton who was called by the petitioners and by Thelma Smith Mosbey who was called as a witness by the respondent. Two exhibits were introduced into evidence. The exhibits as well as the Partial Agreed Statement of Facts are incorporated herein for the purpose of any appeal.

The Assessor's card for Plot 14, introduced into evidence as Exhibit 1, bears the notation "For 1914" followed by the name "Canada, John C." In the column thereon marked "Remarks" there is the notation "Deed 1914, Posted April 14". The Assessor's card for Plot 15 bears the notation "For 1920, Canada, John C." and in the column thereon marked "Remarks" there is the notation "Deed 1920, Posted May 7, 20". The Court finds that Plot 14 was assessed to John C. Canada from and after 1914, and Plot 15 assessed to John C. Canada from and after the year 1920.

Thelma Smith Mosbey testified that she lives in Roxbury but inherited a house at 36 Perry Avenue, Brockton from her mother Ophelia Smith who died in January 1961. Plots 14 and 15 Cabot Street are located to the rear of the house at 36 Ferry Avenue (Perry Avenue and Cabot Street are parallel streets). Mrs. Ophelia Smith lived on the second floor of the house at 36 Perry Avenue for thirty years prior to her death in 1961. Her daughter the witness, Thelma Smith Mosbey, lived there with the mother in the 1940's for about ten years. John Canada, who was the witness Mosbey's great uncle, lived on the first floor of the house at 36 Perry Avenue until his death, April 27, 1936. Canada's widow, Rebecca lived at this address until she died and then one Marian Rollins moved in as tenant on the first floor.

The Court finds on all the evidence that Plot 14 and Plot 15 Cabot Street were owned by John C. Canada until his death on April 27, 1936, and were assessed to him by the City of Brockton. On his death John C. Canada left a widow, Rebecca E. Canada and four children, petitioner Arlene Canada Terrell (then a minor) petitioner Eva Jefferson Newby, a son John William Canada (who died in March 1972) and a son Frederick Canada. The petition for administration of the Estate of John C. Canada filed by the widow Rebecca was never allowed (Sheet F attached to "Agreed Partial Statement of Facts"). Neither the heirs of John William Canada nor Frederick Canada himself appeared in Miscellaneous Cases No. 69278 and 69279 brought by the respondent Andrews to order petitioners to try title and hence any interest they might have had has been terminated. The petitioners thus have a possible claim to ownership of one-half of the fee to both Plots 14 and 15.

The Court finds that the City of Brockton by their Collector of Taxes took Plot 14 and Plot 15 on June 8, 1948 for the nonpayment of taxes assessed to John C. Canada for the year 1947 after demand under the provisions of General Laws (Ter. Ed.) Chapter 60, Sections 53 and 54. (See Sheets D and E attached to said "Agreed Partial Statement of Facts"). The Commissioner of Corporations and Taxation for the Commonwealth filed an affidavit to foreclose as Land of Low Value (see Sheet E attached to the "Agreed Partial Statement of Facts"), dated November 25, 1952. On December 15, 1952, the land was sold at public auction to Thelma Smith Mosbey, who paid $22.54 for Plot 14 and the same for Plot 15 (see Sheets A and B attached as aforesaid). Mrs. Mosbey paid taxes on both lots each year thereafter until she sold the lots to respondent Andrew for $3,000.00 in 1973.

Petitioners argue first that the law favors redemption from tax sales; second that the "equities of the petitioners herein should be rendered futile" since one of petitioners was a minor and the other lived out of state and the purchaser was a cousin; and third that the statutory notice requirements have been violated.

The case of West v. Board of Selectmen of Yarmouth, 345 Mass. 547 , is relied on by the petitioner as favoring a redemption by the owner in a tax sale situation. In this case the town still owned the property and there had been no recording of a deed to cut off the right to redemption. General Laws (Ter. Ed.) Chapter 60, Section 80A. The deed from the Treasurer of the City of Brockton to Thelma Smith Mosbey was dated December 26, 1952. From this date until March 21, 1973, when respondent took title, a period of approximately twenty-one years Thelma Smith Mosbey paid the taxes and used the land and thereafter until the present, the respondent did likewise. This is a little different than in the West case.

The second argument as to notice would seem to be as tenuous. There is no evidence that the notice was not given in accordance with the statute. The statement as to notice incorporated in the Commissioner of Corporation's aff1davit is prima facie evidence of this. There is no evidence that Thelma Smith Mosbey knew of petitioners' whereabouts at the time she purchased the property; in fact, there is evidence that she did not know that John C. Canada or his heirs had any such thing as a right of redemption in 1952 or at the present time. Thus this argument does not prevail.

The third argument raised by petitioners is that statutory notice requirements were violated throughout the proceedings and that the assessors made no "reasonable inquiry" for the purpose of giving notice to the Canadas. Reliance is put on General Laws, Chapter 60, section 40:

"The collector shall give notice by publication of the time and place of sale of land for nonpayment of taxes. Such notice shall contain a substantially accurate description of the several rights, lots or divisions of the land to be sold, which shall be furnished to the collector by the assessors upon demand of the collector, the amount of the tax assessed on each, and the names of all owners known to the collector. Such notice of sale of the undivided real estate of a deceased person assessed to his heirs or devises or assessed in general terms to his estate shall contain the names of all the heirs or devisees interested in such real estate, if the probate records of the county where the land lies disclose their identity."

In this case, Sheet F attached to the "Agreed Partial Statement of Facts" contains a petition of Rebecca E. Canada to be appointed administratrix of the estate of John C. Canada, who was recited then as having died on April 27, 1936, leaving the four children heretofore mentioned herein. The address of Rebecca E. Canada is given as 36 Perry Avenue, Brockton. This petition was never allowed and there was no further record of proceedings in this estate. The date of Rebecca E. Canada's death is not in evidence but was presumably prior to 1952 when Thelma Smith Mosbey purchased the property from the City of Brockton. The Court rules that since the probate was never allowed the provisions of Chapter 60, Section 40 did not bind the assessors and that the continued assessment under the name John C. Canada until the property was taken in 1948 for the nonpayment of 1947 taxes so assessed, was proper. General Laws, Chapter 59. Section 11.

The respondent herein contends that even if statutory provisions as to notice were not fo1lowed that the respondent has good title by adverse possession. Since the purchase of the property by Mrs. Mosbey in 1952 she visited the property weekly until 1961 and then every two months until she sold the lots in 1973. During this time the rents to the Perry Avenue property were collected by a Mr. Torrence, a neighbor, and turned over to Mrs. Mosbey periodically. During the ownership of the Canadas the lots were used by them and then by succeeding tenants at 36 Perry Avenue as well as by Ophelia Smith for gardening purposes. Mrs. Mosbey after buying the lots gave permission specifically to her tenants at 36 Perry Avenue to use the lots as a garden and they were so used up until she sold them in 1973. In addition Mrs. Mosbey and her successor in title paid real estate taxes on their lots from 1952 until the present. Mrs. Mosbey asserted control over these lots openly and obviously during her ownership. The use so made continued during her ownership of more than twenty years and constituted exclusive, open and notorious use. Certainly the deed from the city to Mrs. Mosbey provided a claim of right. Thus, the Court finds that Mrs. Mosbey had good title under the doctrine of adverse possession when she conveyed the premises to the respondent.

On all the evidence the Court finds and rules that title is in the respondent and orders the petition dismissed.

So ordered.


[Note 1] Nomenclature in use before the promulgations of Massachusetts Rules of Civil Procedure, effective July 1, 1974, is used herein as it was used in the "Agreed Partial Statement of Facts".

[Note 2] These proceedings are not subject to Massachusetts Rules of Civil Procedure, effective July 1, 1974.

[Note 3] These figures were a result of a stipulation entered into before the Court, amending both the interest rate and interest amount included in paragraph #17 of the "Agreed Partial Statement of Facts" submitted to the Court.