CHESTER F. BARTLETT, et als [Note 1] vs. HENRY W. MERRY

A petition (Miscellaneous Case No. 72739) was brought by Henry W. Merry, the defendant in each of the present actions, against Anne M. Biggs pursuant to G. L. c. 60, § 80B, to establish his title, allegedly acquired under G. L. c. 60, § 80, to a parcel of land situated on the northeasterly side of Union Street in the Town of Yarmouth, Barnstable County, Massachusetts. In the petition Henry W. Merry alleged that the subject parcel was taken by the Town of Yarmouth, for nonpayment of taxes assessed to Anne M. Biggs, by instrument dated July 11, 1942 and duly recorded in Book 593, Page 524; [Note 2] that pursuant to an affidavit of low value from Henry F. Long, dated July 26, 1944 and duly recorded in Book 616, Page 1, said parcel was conveyed to the Town of Yarmouth by instrument dated August 23, 1944 and duly recorded on the same day in Book 617, Page 199; that the petitioner Henry W. Merry holds title under an instrument from James W. Ellis, dated September 29, 1945 and duly recorded in Book 657, Page 394; and that James W. Ellis took title to the property by virtue of a deed from the Town of Yarmouth dated August 29, 1945 and duly recorded in Book 633, Page 329.

By order of the court a guardian ad litem was appointed for all persons having an interest in said petition. The guardian submitted a report to the court on April 4, 1975. The report questioned whether Anne M. Biggs, the respondent in said petition, ever had any interest in the subject parcel.

The plaintiff in each of these actions, Chester F. Bartlett et als and Beryl G. Holbrook, although not cited by Henry W. Merry in his petition, claimed title adverse to the title of the aforesaid petitioner and filed answers to said petition alleging that the claim of title by Henry W. Merry was based on an invalid taking by the Town of Yarmouth; that any subsequent deeds by said Town of Yarmouth purporting to convey the subject parcel were void; and that Henry W. Merry had no interest in the subject parcel.

The plaintiffs, Chester F. Bartlett et als, subsequently brought an action (Miscellaneous Case No. 73962) alleging that each of the named plaintiffs held title to a respective portion of the subject parcel by a series of mesne conveyances originating from Charles A. Holbrook who became the record owner of said parcel on August 26, 1944 by virtue of a deed given by Edmund W. Eldridge; that the same Edmund W. Eldridge conveyed the said parcel at a later date to Anne M. Biggs against whom the Town of Yarmouth made a taking for nonpayment of taxes by instrument dated July 11, 1942; that all deeds to the parcel subsequent to said taking constitute a cloud on their respective title to the subject parcel. The defendant, Henry W. Merry, filed an answer which substantially restated the allegations of his original petition, to wit: that he received a deed to the subject parcel after said parcel was conveyed to the Town of Yarmouth by a treasurer's deed pursuant to a tax taking; that said town acquired "absolute title" to the parcel after proper recording pursuant to G.L. c. 60, § 80; and that as successor in title to said town his title to the parcel was absolute. After plaintiffs' motions for summary judgment and a directed verdict were denied the court allowed plaintiffs' motion to amend the complaint and to join parties (see note 1 supra for the added plaintiffs whose respective interests in the subject parcel are set out in the Agreed Statement of Facts). The plaintiffs also filed a suggestion of death and motion to substitute Geraldine Devore, as administratrix of the estate of Irene H. Pinard who was one of the original plaintiffs. Said motion was allowed.

Beryl G. Holbrook brought a separate action against Henry W. Merry (Miscellaneous Case No. 75300) seeking to remove a cloud from her title to a portion of the subject parcel, namely, the claim of Henry W. Merry. The complaint, in substance, stated the same allegations as the complaint filed by Chester F. Bartlett et als. Henry W. Merry filed an answer substantially the same as his answer in the action brought by Chester F. Bartlett et als. In her complaint Beryl G. Holbrook also asked the court to assess costs against the defendant, Henry W. Merry, including reasonable attorney's fees.

On June 27, 1975 the plaintiff, Beryl G. Holbrook, filed a motion to consolidate the two actions. This motion was allowed.

All of the parties involved in these actions have submitted to the court an Agreed Statement of Facts which contains all the material facts necessary for the resolution of the controversy. Seventy-seven exhibits were submitted in evidence which exhibits are incorporated herein by reference for the purpose of any appeal. The agreed facts, which the court finds, are as follows:

1. that the above actions concern the title to 30.6 acres of land, more or less, situated on the northeasterly side of Union Street in Yarmouth, Barnstable County, Massachusetts; that this land is the land shown on a plan dated February 1956 recorded with the Barnstable County Registry of Deeds in Plan Book 126, Page 113, a copy of which is annexed as Exhibit J, with the exception of the southeasterly portion of the land shown on the exhibit which has been outlined in red. The excluded land can be accurately determined from a deed from Margaret R. Cash, Administratrix to Charles A. Holbrook dated July 26, 1924 recorded with the Barnstable County Registry of Deeds in Book 416, Page 190;

2. that from 1911 to August of 1924 title to all of the land shown on the plan (with the exception of the part outlined in red) was vested in Edmund W. Eldridge, of Yarmouth by virtue of the death of his father, Andrew H. Eldridge, in 1900, Barnstable Probate No. 13228, and a conveyance from his two sisters dated February 11, 1911 recorded with the Barnstable County Registry of Deeds in 1912 in Book 313, Page 72;

3. that by warranty deed dated August 26, 1924 and recorded on December 26, 1924 in the Barnstable County Registry of Deeds Book 415, Page 59, Edmund W. Eldridge conveyed this parcel of land, namely all the land shown on the plan with the exception of that portion outlined in red, to Charles A. Holbrook, of Haverhill, Massachusetts. A copy of that deed is annexed as Exhibit A;

4. that Charles A. Holbrook made no conveyance of this property to Edmund W. Eldridge or to anyone else during, his lifetime, and that he died on April 9, 1952;

5. that on October 30, 1939, Edmund W. Eldridge executed a quitclaim deed in which he conveyed to Anne M. Biggs, of Boston, the same land previously conveyed to Charles A. Holbrook in 1924; that this deed was duly recorded with the Barnstable County Registry of Deeds, on October 30, 1939 in Book 559, Page 143; and that it contained by reference a description of all the land shown on the Exhibit Plan with the exception of the portion outlined in red as aforesaid. A copy of that deed is annexed as Exhibit B;

6. that from 1925 to 1939 the Town of Yarmouth assessed Charles A. Holbrook for 30 1/2 acres of woodland valued in 1925 at $450.00 and from 1926 to 1939 at $500.00; that the property so assessed was the same land which is the subject of this action; and that all of the taxes assessed during those years were timely paid;

7. that in 1940 the Town of Yarmouth continued to assess Charles A., Holbrook for the same 30 1/2 acres of land valued at $500.00, and that the tax so assessed was timely paid; that in 1940 the Town of Yarmouth assessed Anne M. Biggs for 10 acres of woodland valued at $50.00; that the tax assessed to her was not timely paid; that it amounted to $1.48; that the assessment was for her interest acquired under the deed from Edmund W. Eldridge which is annexed as Exhibit B; that the land so acquired in fact consisted of 30 1/2 acres; and that the assessment by the Town of Yarmouth was incorrect insofar as it states 10 acres instead of 30 1/2;

8. that the following instruments were executed and recorded with the Barnstable County Registry of Deeds, and that these instruments relate to steps taken by the Town of Yarmouth under Chapters 59 and 69 of the General Laws to collect the tax assessed against Anne M. Biggs under her interest acquired from Edmund W. Eldridge tax was not timely paid:

"Instrument of Taking dated July 11, 1942 recorded in Book 593, Page 524 with the Barnstable County Registry of Deeds. A copy of that instrument is annexed as Exhibit E.

Certificate relative to tax title dated July 26, 1944 recorded with the Barnstable County Registry of Deeds in Book 616, Page 1. A copy of that instrument is annexed as Exhibit F.

Treasurer's Deed to the Town of Yarmouth dated August 23, 1944 recorded with the Barnstable County Registry of Deeds in Book 617, Page 199. A copy of that instrument is annexed as Exhibit G."

9. that on August 29, 1945 the Town of Yarmouth conveyed the subject property to James W. Ellis of Yarmouth for $25.00, giving as their title reference the taking made against Anne M. Biggs, and the proceedings and instruments referred to in Paragraph 8 herein; and that this instrument was recorded at the Barnstable County Registry of Deeds on September 14, 1945 in Book 633, Page 329. A copy of that instrument is annexed as Exhibit H;

10. that on September 29, 1945, James W. Ellis, of Yarmouth, conveyed his interest in the subject property to Henry W. Merry, of Duxbury, Massachusetts by quitclaim deed recorded with the Barnstable County Registry of Deeds on October 21, 1946 in Book 657, Page 394. A copy of that deed is annexed as Exhibit I;

11. that Charles A. Holbrook died on April 9, 1952 and that, by the terms of his will, all of his realty was devised to his wife, Beryl G. Holbrook, and his sons, John G. Holbrook, and Charles J. Holbrook, Jr., in three equal shares; and that his probate inventory, included "approximately 30.50 acres of vacant land on Union Street, Yarmouth, Massachusetts" valued at $500.00. A copy of Essex County Probate No. 237374 is annexed as Exhibit R;

12. that on June 25, 1953, Charles A. Holbrook, Jr. and John G. Holbrook conveyed their interest in the subject property to their mother, Beryl G. Holbrook, and that this instrument was recorded on July 8, 1953 in Book 846, Page 390 at the Barnstable County Registry of Deeds. A copy of that deed is annexed as Exhibit 0;

13. that in 1956 Beryl G. Holbrook had a subdivision plan made and approved by the Planning Board of the Town of Yarmouth which showed all of the subject land (as well as other land not relevant which is outlined in red on the Exhibit Plan), and which plan divided a portion of the subject property in 23 separately numbered lots; and that this plan was recorded with the Barnstable County Registry of Deeds on March 9, 1956 and is noted in Plan Book 126, Page 113. A copy of that plan, with the excluded portion outlined in red, is annexed as Exhibit J;

14. that in 1958 Beryl G. Holbrook conveyed Lot 20, as shown on the Exhibit Plan, to her son, Charles A. Holbrook, Jr., by instrument dated October 21, 1958, and recorded on April 21, 1959 with the Barnstable County Registry of Deeds, in Book 1036, Page 264. A copy of that deed is annexed as Exhibit P;

15. that by instrument dated March 26, 1960 recorded with the Barnstable County Registry of Deeds on March 29, 1960 in Book 1072, Page 590 Beryl G. Holbrook conveyed Lots 1-19, inclusive, and Lots 21, 22, and 23, together with the fee in Pequod Circle, all as shown on the Exhibit Plan, to William P. Swift, of Hyannis, Massachusetts. A copy of that deed is annexed as Exhibit Q; that by instrument dated January 17, 1962 recorded on January 17, 1962 with the Barnstable County Registry of Deeds in Book 1143, Page 296, William P. Swift conveyed for consideration Lots 1-19, 21, 22, and 23, together with the fee in Pequod Circle, all as shown on the Exhibit Plan, to Long Pond Acres Estates, Inc. A copy of that deed is annexed as Exhibit S; that on May 31, 1962 Charles A. Holbrook, Jr. conveyed Lot 20 to Long Pond Acres Estates, Inc.; and that said instrument was recorded on June 11, 1962 with the Barnstable County Registry of Deeds in Book 1160, Page 352. A copy of that deed is annexed as Exhibit T;

16. that the Plaintiffs listed in the complaint filed in Case 73962, Chester F. Bartlett et als, occupy single- family residences located on the respectively numbered lots shown on the Exhibit Plan as set forth in said complaint; that said Plaintiffs have occupied the single-family residences since the date set forth in said complaint; and that said Plaintiffs each trace title back to Long Pond Acres Estates, Inc. by a series of duly recorded quitclaim deeds conveying the respective parcels of land, which parcels comprise the individual house lots shown on the Exhibit Plan. Copies of these instruments tracing the chain of title of Long Pond Acres Estates, Inc. to Plaintiffs Chester F. Bartlett et als are annexed as Exhibits U through Z, Exhibits A-1 through Z-1, and Exhibits A-2 through 0-2; that added Plaintiffs Thomas F. Neal and Katherine M. Neal, and Ottis T. Creel and Phyllis A. Creel, and Bernard R. Kelly hold title under instruments set forth in Paragraphs 1h, 1j, and 1m of the amended complaint; that added Plaintiff mortgagees Hyannis Co-Operative Bank, Suffolk Franklin Savings Bank, Bass River Savings Bank, First National Bank of Yarmouth, Colonial Federal Savings and Loan Association of Quincy, Brockton Savings Bank, and Security Federal Savings and Loan Association of Brockton hold valid mortgages under instruments set forth in Paragraphs 1a, 1b, 1c, 1d, 1e, 1f, 1g, 1i, 1k, and 1l of the amended complaint;

17. that from 1941 to 1944 the Town of Yarmouth assessed Anne M. Biggs for 10 acres of land valued at $50.00 and that said taxes were not timely paid; that in 1946, the Town of Yarmouth assessed James W. Ellis for 10 acres of land under his interest acquired in Book 633, Page 329 valued at $50.00, and that said tax was timely paid; that from 1947 through 1960 the Town of Yarmouth assessed Henry W. Merry for his interests under deed recorded in Book 657, Page 394; that from 1947 to 1948 the valuation was for 10 acres at $100.00, and thereafter for 30.6 acres at $300.00; and that with the exception of the year 1960 all taxes so assessed were timely paid;

18. that during the years 1941 through 1953 the Town of Yarmouth continued to assess Charles A. Holbrook for 30.5 acres of land valued at $500.00; and that said assessment was for his interest acquired in the subject property by instrument recorded with the Barnstable County Registry of Deeds in Book 415, Page 59; and that all taxes so assessed were timely paid;

19. that in 1954 and 1955 the Town of Yarmouth assessed Beryl G. Holbrook for 30.5 acres of land under deed in Book 846, Page 390 valued at $500.00; that in 1956 and, 1957 said Town assessed her for the same 30.5 acres valued at $1,500.00; that in 1958 and 1959 it assessed her for the same 30.5 acre parcel valued at $3,500.00; that in 1960 it assessed Beryl G. Holbrook for 30 acres of land under the deed in Book 846, Page 390 valued at $3,000.00, and during the same year assessed Charles A. Holbrook, Jr. for .42 acres under deed in Book 1036, Page 264 valued at $300.00; that in 1961 and 1962 said Town assessed Beryl G Holbrook under deed in Book 846, Page 390 for 21 acres of land valued at $2,100.00; that said Town assessed Charles A. Holbrook, Jr. for .42 acres under deed in Book 1036, Page 264 valued at $300.00; that during the same year it assessed William P. Swift for 9.38 acres under deed in Book 1072, Page 590 valued at $1,800.00; that in 1963 said Town assessed Beryl G. Holbrook for 21 acres of land under deed in Book 846, Page 390 valued at $2,100.00; that it assessed Long Pond Acres Estates, Inc. for 142 acres valued at $300.00 under deed in Book 1160, Page 352, for 1.82 acres under Book 1143, Page 296 valued at $1,000.00 (as well as for two houses with garages valued at $4,000.00 and $37.50 respectively), for 1.66 acres under Book 1143, Page 296 valued a $1,200.00, for 2.60 acres under Book 1143, Page 296 valued at $1,500.00; that Beryl G. Holbrook has been assessed for said 21 acres shown on the Exhibit Plan from 1974 to date; that Long Pond Acres Estates, Inc. and their successors in title, including current Plaintiffs, have been assessed for the lots shown on the Exhibit Plan from 1964 to date; and that all taxes assessed pursuant to the valuations and assessments contained in this paragraph were timely paid;

20. that in 1960 the Town of Yarmouth notified Beryl G. Holbrook and Henry W. Merry that it was assessing both parties for the same parcel of land and that it was checking into the title thereof; and that from 1961 to date the Town of Yarmouth has not assessed Henry W. Merry for the subject property; but that said Town did in succeeding years assess Henry W. Merry for other parcels of land, which parcels are not involved in this action;

21. that neither Beryl G. Holbrook nor Henry W. Merry took any action between 1967 and 1974 to determine the validity of their respective titles;

22. that for purposes of this action but for the tax taking against Anne M. Biggs, and the subsequent proceedings taken by the Town of Yarmouth as set forth in Paragraph 8 herein, Plaintiffs Chester F. Bartlett et als as well as added Plaintiffs, and Beryl G. Holbrook would have good record title to their respective portions of the subject property;

23. that in May of 1974 registered letters were sent to each of the respective Plaintiffs informing them that Henry W. Merry claimed title to their land under deed recorded with the Barnstable County Registry of Deeds in Book 657, Page 394;

24. that on or about July 15, 1974 a Petition was filed with the Land Court under Chapter 60, Section 80B and numbered 72739 on behalf of Henry W. Merry in order to determine the validity of his title acquired in Book 633, Page 329;

25. that in October of 1974 a complaint was filed on behalf of Chester F. Bartlett et als (Miscellaneous Case No. 73962) in order to challenge said title of Henry W. Merry;

26. that in 1975 a complaint was filed on behalf of Beryl G. Holbrook (Miscellaneous Case No. 75300) in order to challenge said title asserted by Henry W. Merry;

27. that the facts contained in the guardian's report dated April 1, 1975 filed by Henry F. Smith in Miscellaneous Case No. 72739 are true and correct insofar as they refer to instruments of record and examination of grantor schedules. It is expressly understood, however, that any conclusions of law contained in said report are not agreed to by the parties, but are reserved for the Court's determination;

28. and that all parties asserting ownership interests in the subject property are represented by counsel.

On all the evidence the court rules that the plaintiffs Chester A. Bartlett et als, as well as the added plaintiffs and the plaintiff Beryl G. Holbrook, hold their respective interests in the subject property free from the claims of the defendant Henry W. Merry.

The defendant's claim of title to the subject property is based upon the taking made by the Town of Yarmouth for nonpayment of taxes assessed to Anne M. Biggs, the treasurer's deed to the town pursuant to G.L. c.60, §§ 79 and 80, the deed from the town to James W. Ellis, and finally the deed from Ellis to the defendant. The court rules that the assessment and the subsequent taking by the town against Anne M. Biggs was invalid since at the time of the assessment, taking; and sale she held no interest in the subject property under quitclaim deed from Edmund W. Eldridge. Further, the subsequent deed to the town was void since it was based on an invalid taking. The town had no interest to convey to the defendant's predecessor in title. Therefore, the defendant acquired no interest in the subject parcel.

THE EFFECT OF THE DEED TO ANNE M. BIGGS

A quitclaim deed conveys only whatever title or interest that a grantor may have in the land at the time of the conveyance. At the time of the conveyance to Anne M. Biggs, Edmund W. Eldridge no longer had any interest to convey in the subject parcel since he had previously conveyed the same land to Charles A. Holbrook by a warrant deed which was duly recorded. By operation of the recording system all parties interested herein had constructive notice that Charles A. Holbrook was the record titleholder and that Anne M. Biggs had no title or interest in the subject property.

ASSESSMENT BY THE TOWN OF YARMOUTH AGAINST ANNE M. BIGGS

Pursuant to G.L. c. 59, § 11 taxes are to be assessed, in the town in which the real estate is located, "to the person who is the owner on January first, and the person appearing of record, in the records of the county ...." Alternatively, the statute provides that the taxing authority may, under some circumstances assess the person in possession. In construing this provision the Court has held that strict compliance is mandatory and that failure to comply will invalidate a sale of the property for nonpayment of the taxes as assessed. Charland v. Trustees of the Home for Aged Women, 204 Mass. 563 , 569 (1910). If the assessment is not levied on the person who is the owner or is in possession then the tax is void. J. L. Hammett Co. v. Alfred Peats Co. 217 Mass. 520 , 522 (1914). Therefore, the sale and conveyance for nonpayment of taxes assessed to one who is neither the owner or in possession is invalid and can pass no title to the purchaser. Desmond v. Babbitt, 117 Mass. 233 , 234 (1875). Under G.L. c. 59, § 11 the taxing authority may assess the record owner of the property. It may also assess a party in possession. The Supreme Judicial Court, in construing the statutory provision, has ruled that the taxing authority may also assess the true owner. Boston v. Quincy Market Cold Storage Co., 312 Mass. 638 , 646-47 (1942). In the instant case, the town did not assess the true owner when it assessed Anne M. Biggs since, for reasons stated above, she held no legal title in the subject property. There is no evidence that Anne M. Biggs was ever in possession of the property and she could not, therefore, be properly assessed under this theory. In addition Anne M. Biggs was not the record owner since examination of the record chain of title to the subject parcel indicates that she took a deed from a grantor who had already conveyed his interest in the real estate. The term "person appearing of record" cannot be construed to mean that assessment may be based on any instrument recorded in the chain of title even though said instrument has no legal effect. Such a construction would do great violence to the entire concept of the recording system. Cf. Conners v. Lowell, 209 Mass. 111 , 122-23 (1911). Proper examination of the record title to the subject parcel would indicate that, at the time of the assessment to Anne M. Biggs in 1940, Charles A. Holbrook was the record owner. The town had constructive notice of this fact. In 1940 the town also assessed Charles A. Holbrook, the true owner and record owner for the same property. [Note 3] The town continued to assess said Charles A. Holbrook and his successors in title in succeeding years. The taxes as assessed were timely paid in each of the succeeding years by Charles A. Holbrook and his successors in title. Clearly the town cannot properly assess two parties for the same parcel and make a taking against one who has no interest in the property when the true owner pays the taxes as assessed. Since Anne M. Biggs was not the true owner or record owner and since there is no evidence which shows that she was ever in possession of the property the assessment was invalid.

VALIDITY OF THE TAKING AGAINST ANNE M. BIGGS

It is well settled in the Commonwealth that a tax taking that includes land that the party assessed does not own is invalid and void. Holcombe v. Hopkins, 314 Mass. 113 , 115 (1943); Desmond v. Babbitt, 117 Mass. 233 , 234 (1875). A tax upon real property is essentially a pecuniary burden upon the owner of said property. A lien upon said realty is merely a type of security, created by statute, of which the taxing authority may avail itself if the tax, as properly assessed, is not paid. The lien is, therefore, upon the land. Collector of Taxes v. Revere Building. Inc., 276 Mass. 576 , 578-79 (1931). The taxing authority cannot have a lien on property where the defaulting party has no legal interest in that property, particularly if the true owner pays the taxes assessed against the same property. Thus, if the town has no lien it cannot acquire a tax title to that property. Worcester v. Bennett, 310 Mass. 400 , 401 (1941). See Morse v. Revere, 248 Mass. 569 , 570-71 (1924).

In summary, if the assessment by a tax collector is not levied on the person who is either the owner (record or actual) or in possession of the land, then the tax as assessed is void. Therefore, the collector cannot include in a tax taking and sale any property which the assessed person did not own or occupy since the town has acquired no lien on the property. Anne M. Biggs was not the owner nor did she occupy the land. Therefore, the assessment and subsequent taking were void.

LOW VALUE PROCEEDINGS

After the taking of the subject property, the Town of Yarmouth took the procedural steps set forth in G.L. c.60, § 79. However, since there were no bids at the public auction the town became the purchaser. Pursuant to G.L. c.60, § 80 the treasurer executed a deed to the town which was recorded within the statutory period. By the terms of said section "the title of the town to land conveyed thereby shall be absolute upon the recording of said deed in the proper registry...." The defendant argues that this statutory language operates to make his title absolute since it is derived from this treasurer's deed to the town, which was properly recorded. However, the court rules that such a construction of § 80 is incorrect. The statutory language which deals with "absolute title" is based on the presumption that there has been a valid assessment and a valid taking. See Bartevian v. Cullen, 369 Mass. 819 , (1976) (Mass. Adv. Sh. [1976] 593, 595); Johnson v. McMahon, 344 Mass. 348 , 356 (1962). The intent of G.L. c.60, §§ 79 and 80 is to provide a final method of foreclosing rights of redemption. This intent cannot be extended to mean that a municipality can acquire absolute title to a parcel where there has been an invalid assessment and taking and where the record owners of the parcel have no notice of the proceedings and no opportunity to challenge them. Such a construction would not be consistent with the theory of a recording system and more importantly would not be compatible with even a restrictive theory of constitutional due process. See McHale v. Treworgy, 325 Mass. 381 , 385 (1950). Therefore, the town did not acquire absolute title to the subject property by recording the treasurer's deed. In fact it acquired no title at all. When the town purported to convey the property to James W. Ellis by quitclaim deed it, in fact, had no interest to convey. James W. Ellis was not a bona fide purchaser without notice since he had constructive notice of the adverse interests of the plaintiffs as shown in the record chain of title. This is also true in the case of the defendant, Henry W. Merry. Therefore, the defendant has acquired no interest in the subject property.

As indicated by the facts the town continued to assess two individual chains of owners after the taking and the subsequent sale to James W. Ellis for the same property until 1960 when it recognized the error. It is unreasonable to suggest that the record owner or owners of property who properly pay taxes, as assessed, should be allowed to lose that property by virtue of a tax taking against one who has no legal interest in the property. Clearly, under these facts, the true owners had no notice of these proceedings. For reasons enunciated, such an assessment, taking and sale are not valid under any decisional or statutory law in this Commonwealth.

In her prayer for relief plaintiff Beryl G. Holbrook has asked the court to allow an award of costs, including attorney's fees, against the defendant, Henry W. Merry. The court rules that under principles established in M.F. Roach v. Provincetown, 355 Mass. 731 , 732 (1969) this is not a proper case for an award of attorney's fees.

In summary, for the reasons set forth in this decision the court rules that:

1. Plaintiffs Chester F. Bartlett and Mary A. Bartlett, George F. Cassell, Jr. and Dorothy J. Cassell, Joseph J. Celi and Rose M. Celi, Earle L. Clarke, Jr. and Josephine G. Clarke, Peter F. Curley and Patricia A. Curley, John B. Davidson and Barbara A. Davidson, Anastasia M. Driscoll, Louis F. Mace and Marion E. Mace, William G. Maykel and Helen Maykel, George A. Mathieu, Edmund C. Mossey and Irene S. Mossey, Robert O. Murphy and L. Gail Murphy, Donald Nute and Marion Nute, Francis M. O'Neill and Julia F. O'Neill, Geraldine Devore as administratrix of the estate of Irene Pinard, Mary E. Wood, Elizabeth J. Wright, Agnes L. Schnare, Sara Zilbach, Thomas F. Neal and Katherine M. Neal, Ottis P. Creel and Phyllis A. Creel, Bernard R. Kelly, Hyannis Cooperative Bank, Suffolk Franklin Savings Bank, Bass River Savings Bank of South Yarmouth, First National Bank of Yarmouth, Colonial Federal Savings and Loan Association of Quincy, Bass River Savings Bank, Brockton Savings Bank of Brockton and Security Federal Savings and Loan Association of Brockton each holds their respective interest in the subject parcel under deed or mortgage, as set forth herein free from any claims of the defendant, Henry W. Merry.

2. The defendant, Henry W. Merry, has no legal or equitable interest in said property and all deeds and instruments in his claimed chain of title, starting with the deed of Edmund W. Eldridge to Anne M. Biggs, are void and have no legal effect since all the grantors in said chain had no legal or equitable interest in the subject parcel to convey.

3. The petition of Henry W. Merry in Miscellaneous Case No. 72739, brought pursuant to G.L. c. 60, § 80B, is dismissed.

Judgment to enter accordingly.