TL 52673-A

September 1, 1978

Suffolk, ss.

Sullivan, J.


Standard Homes, Inc., a Massachusetts corporation with its usual place of business at 603 Worcester Road in Natick in the County of Middlesex, has petitioned this Court for the vacation of the final decree dated November 14, 1977 in Tax Lien Case No. 52673 by which all rights of redemption were forever foreclosed and barred under the deed given by the Collector of Taxes for the City of Boston in the County of Suffolk dated August 1, 1975 and duly recorded in Book 8810, Page 587. The petition was brought against said city, and Robert F. Porter, the purchaser at the City's foreclosure sale, was added as a party by order of Court. Each defendant answered and claimed Mr. Porter was an innocent purchaser for value as against whom the foreclosure decree could not be vacated.

A trial was held at the Land Court on June 22, 1978 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows: title to the real estate in question was acquired by 37 India St., Inc. by deed dated May 16, 1973 and recorded in Book 8628, Page 59; a mortgage from said corporation to Debral Realty, Inc. was recorded simultaneously with the deed in Book 8628, Page 60 (Exhibit No. 3); on August 1, 1975 the premises were taken by the City of Boston for nonpayment of the 1973 real estate taxes; a petition to foreclose the taxpayer's equity of redemption was filed in the Land Court on December 8, 1976; notice of the petition was recorded in Book 8919, Page 8 on December 8, 1976 and service was had by registered mail on 37 India Street, Inc., Debral Realty, Inc. and Patten's Restaurant; none of the defendants appeared, default was entered against them and the final decree was entered in usual course; thereafter the City of Boston sold the property at public auction to Robert F. Porter on April 19, 1978, the deed to the premises being recorded on May 3, 1978 in Book 9053, Page 383 (Exhibit No. 4); and after the entry of the final decree in the Land Court proceedings, Debral Realty, Inc., the first mortgagee, foreclosed its mortgage by exercise of the power of sale on November 10, 1977 and conveyed the property to the plaintiff, by deed recorded on December 9, 1977 in Book 9014, Page 206 (Exhibit No. 2).

G. L. c. 60, ยง 69 provides as follows:

If a default is entered under section sixty-seven, or if redemption is not made within the time and upon the terms fixed by the court under the preceding section, or if at the time fixed for the hearing the person claiming the right to redeem does not appear to urge his claim, or if upon hearing the court determines that the facts shown do not entitle him to redeem, a decree shall be entered which shall forever bar all rights of redemption. If no innocent purchaser for value has acquired an interest, such decree may be vacated in the discretion of the court upon petition filed by the petitioner at any time.

Pursuant to this section the Court may in its discretion vacate the decree "[i]f no innocent purchaser for value has acquired an interest." The parties have concentrated on this exception and have argued the question as to whether defendant Porter is an innocent purchaser. The petitioner claims that the Real Property Commissioner for the City announced at the sale prior to the bidding that the former owner of the property could redeem the premises by paying the taxes and other charges due within twenty-one days from the date of the auction and that therefore the defendant Porter had knowledge of this condition and was not an innocent purchaser for value. The plaintiff further claims that it was unable to obtain the necessary information from the City of Boston as to the amount due and thus had been unable to make the required payments.

It is discretionary with this Court whether a petition to vacate should be allowed even without the presence of a third party. See Lynch v. City of Boston, 313 Mass. 478 , 480 (1943); Bucher v. Town of Randolph, 307 Mass. 391 , 393-94 (1940). Notice was given by the Court to both the equity owner and the mortgagee, and neither saw fit to appear. Neither argues that there are equitable grounds for now reopening the decree. The present plaintiff did not even acquire its interest until after the entry of the final Land Court decree. If its attorney had made a search of the records before the plaintiff "bid" at the foreclosure sale, he would have found the recorded notice of the institution of the tax proceedings and the disposal thereof. In addition, the inference is inescapable that the relationship between the mortgagee Debral Realty, Inc. and the plaintiff is such that the plaintiff must have had actual notice of the tax foreclosure. See Westcott Construction Corp. v. Cumberland Construction Co., Mass. App. (1975). [Note 1] There was evidence that the officers and the offices of each were identical and I so find. In any event the plaintiff's interest was acquired after the entry of the final decree complained of, and it was bound thereby. There appears to be no reason to vacate the decree. Cf. Deveney v. City of Boston, 346 Mass. 764 (1963).

In the posture of the case I have taken I do not reach the question as to whether defendant Porter is an innocent purchaser for value. The plaintiff's argument centers on the alleged announcement at the sale on behalf of the defendant City that the party entitled to redeem would have twenty-one days to do so. The evidence was conflicting as to whether such an announcement was made, and I find that the plaintiff had the burden of proof and failed to sustain it. Even if such an announcement had been made, I am unconvinced that it was intended to benefit the plaintiff, Rather it must have been worded in such a way as to protect the City if it chose to accept payment from the taxpayer in lieu of consummating the sale to the purchaser. It could not have been intended to give the taxpayer an unconditional grace period. The City had no obligation to make such an announcement or to follow such a policy since the Land Court decree effectively foreclosed the taxpayer's equity of redemption. There being no legal requirement for such an announcement and no consideration having been given for it, the City was not bound to follow it absent any convincing showing of reliance or change of position thereon which I do not find. The defendant Porter was still an innocent purchaser; at the worst he stood to have the sale rescinded by the City if it chose to accept payment of all sums due from the taxpayer. This did not happen, and there was no proof that it would have happened if the City had elected not to deliver the deed until after the expiration of twenty-one days. There was no obligation on the City to wait.

It follows that the petition to vacate must be dismissed.

Decree accordingly.


[Note 1] Mass. App. Ct. Adv. Sh. (1975) 755.