ARTHUR C. CARANCI vs. CLIFTON H. COBB, WILLIAM J. DEVINE and PLYMOUTH-HOME NATIONAL BANK, TRUSTEE UNDER THE WILL OF WILLIAM H. COBB.

On May 12, 1965 Arthur C. Caranci filed a petition with this Court to foreclose the equity of redemption under a taking by the Town of Plymouth alleged to be dated June 13, 1962 and recorded on June 14, 1962 in Book 2940, Page 480. An amended substitute petition was filed on September 3, 1968 in which the date of the taking appears as May 4, 1962, its recording date as May 11, 1962 and the recording reference as Book 2932, Page 204. The amended petition also recites "That said premises were assigned to your petitioner by said Town of Plymouth by Instrument dated June 13, 1962 and recorded at Plymouth Registry of Deeds on June 14, 1962, Book 2940, Page 480."

After the original petition was filed, the matter was referred to a title examiner in accordance with the provisions of G. L. c. 60, § 66 to review the title in order to recommend the parties to whom notice should be sent. In the present case the examiner recommended notice to: John K. Cobb Estate, Victorine A. Cobb Estate, William J. Thomas Estate, Frederick Thomas Estate, Estate of William H. Cobb, Estate of Jennie M. Cobb, Estate of George A. Cobb, Flora Cobb Finney, Clifton H. Cobb, married to Marion E. Cobb, Estate of Alice Howland, Estate of Sarah F. King, Carleton K. Woodard and Katie B. Wentzell. A citation was published on October 7, 14 and 21, 1965, and notice was attempted to be sent to the parties named therein. Actual service was made only on Clifton H. Cobb. [Note 1] An answer seasonably was filed on behalf of Clifton H. Cobb and that of his wife, and he thereafter filed a further answer. Judge McPartlin allowed a motion to amend this respondent's answer which he ruled was to be considered specifications in accordance with the provisions of G. L. c. 60, § 70. After 1968 the case remained dormant until 1978-1979 when several motions to answer late and to remove defaults were filed and allowed.

A trial was held at the Land Court on October 16 and 17, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced in evidence are incorporated herein for the purpose of any appeal. All recording references are to the Plymouth County Registry of Deeds unless the context otherwise requires.

On all the evidence I find and rule as follows:

1. Prior to 1958 the property now shown on the Assessors' Maps as Lot 26 on plat 102 and Lot 15 on plat 104 was not assessed. In this time frame (see Exhibit No. 46) the local firm of Delano and Keith was engaged to prepare assessors' maps of the outlying sections of Plymouth which apparently had never been surveyed for tax purposes, Plymouth being one of the largest towns areawise in the Commonwealth.

2. As shown on plats 102 (Exhibit No. 1) and 104 (Exhibit No. 2) both lots abut the Kingston-Plymouth town line in the vicinity of Nicks Rock Road.

3. In 1958 said lots were assessed to John Kempton Cobb, heirs, c/o Arthur Caranci, and the taxes thereon were paid. The same procedure was followed in 1959 and 1960. (Exhibit No. 54C).

4. In 1961 the lots were assessed to John Kempton Cobb, William J. Thomas, Frederick Thomas, Sarah F. King, William H. Cobb, George A. Cobb, Alice Howland and Alice W. Woodward [sic]. Exhibit No. 53 gives the total 1961 taxes on the locus lots as $45.60; a portion of this, but not all, was paid in 1961.

5. From 1962 through fiscal 1979 the property continued to be assessed to John Kempton Cobb, et als, and the bills were sent to the petitioner. They have been paid in full other than those for fiscal 1979 which are outstanding in the amount of $2,897.88 plus interest and demand. (Exhibit No. 45).

6. By instrument dated May 4, 1962 and recorded in Book 2932, Page 204, on May 11, 1962 the Collector of Taxes took for the Town of Plymouth the following described land, "Land, Plymouth and Kingston Line, being Lot 15 plat 104 and Lot 26 plat 102, containing about 154.97 acres." The taking gave the assessed owners as John Kempton Cobb, William J. Thomas, Frederick Thomas, Sarah F. King, William H. Cobb, George A. Cobb, Alice Howland and Alice W. Woodward [sic]. It recited that the 1961 taxes remaining unpaid were in the amount of $30.40, interest to the date of taking was given as $.72 and incidental expenses and costs to the date of taking $17.00 so that the total sum for which the land was taken was $48.12. (Exhibit No. 4).

7. Thereafter the treasurer of said Town in consideration of $63.52 assigned and transferred to Arthur Caranci of 114 Westerly Road in Plymouth the tax title acquired by said Town under an instrument of taking dated May 10, 1962 and recorded in Book 2932, Page 204. The description in the assignment followed that in the taking. The assignment was dated June 13, 1962 and recorded in Book 2940, Page 480. (Exhibit No. 5).

8. Prior to the execution of the assignment the treasurer completed eight copies of the form entitled "Notice of Intention to Assign Tax Title" severally addressed to John Kempton Cobb, Sarah F. King, William J. Thomas, Frederick Thomas, Alice Howland, William H. Cobb, George A. Cobb and Alice W. Woodward [sic] (Exhibits Nos. 29D to 29K inclusive). The address of each addressee in the notice was given as "Plymouth, Mass." and the envelopes in which they were enclosed show mailing by registered mail. None of the notices was delivered, and the post office stamp on each indicates an insufficient address (Exhibits Nos. 29A to 29C inclusive).

9. There are two deeds conveying property to John Kempton Cobb in the vicinity of Nicks Rock Road. In one the grantor was Lemuel Cobb, the deed was dated November 15, 1816 and recorded in Book 130, Page 64. This deed conveyed "a certain piece of woodland in Plymouth afores. westerly from Triangle Pond being part of my gore lot in the first great lot, containing 10 acres more or less." (Exhibit No. 8). This parcel is further described in said deed by metes and bounds. There is a second deed from Lemuel Cobb to John Kempton Cobb dated November 28, 1818 and recorded in Book 148, Page 20. This conveyed "... forty acres of my Sixty Acre lot at Nicks Rock to be taken of at the Easterly End of my Sixty Acre lot and is in Plymouth aforesaid. Also all my Gore of land in the first great lot in said Plymouth adjoining said Sixty Acre lot and adjoining land I before sold said John K. Cobb." (Exhibit No. 10).

10. Chalk A gives the Cobb family tree with accuracy. In 1961 when the taxes were assessed for which the taking was made the members of the Cobb family to whom title had passed if we assume that John Kempton Cobb had acquired it by the deeds to which reference has been made were Alice B. Woodard, William H. Cobb, Frederick Thomas, William Thomas, George A. Cobb and Alice Howland.

11. As appears from the report of the Land Court examiner the parties entitled to notice in this case varied somewhat from those who were or should have been listed as the assessed owners as of January 1, 1961, the year for which the taking was made. A petition for probate of the estate of William H. Cobb was filed on May 19, 1961 and was not found by the examiner for the Court, perhaps because the name of the widow as listed therein varied from the name of the woman the examiner believed to be married to the decedent. As of the assessment date, however, William H. Cobb was correctly named as one of the assessed owners.

12. In order for the assessors to have learned that Alice Woodard was entitled to notice, they would have had to find the probate of her father, Edward King, since no probate for the estate of her mother, Sarah F. King, who appears in the Cobb family tree, was found. Mrs. King died after her husband, and there was no duty on the assessors to follow the devolution of her interest beyond a search for the probate records of her estate. The absence, at least in Plymouth County, of probate records for many of the parties in the chain of title has led to the difficulties with which initially the assessors and now the Court are faced.

The petitioner claims that failure by the respondents to specify the defects in the tax taking on which they rely eliminate these from this Court's consideration other than the two raised in the amended Cobb answer and treated by Judge McPartlin as specifications. The short answer to this contention is that the case was not tried on this theory, and the respondents were allowed to introduce evidence which they claim established the invalidity of the tax title without objection by the petitioner and without limitation. In such circumstances I find and rule that it is open to this Court to consider the parties assessed, the adequacy of the description of the assessed premises and the validity of the addresses to which the notice of the intended assignment was given.

It is difficult to place the location of the premises described in the deeds in which John Kempton Cobb is named as grantee without a title examination of the surrounding parcels. Certainly no one could have quarreled with the assessors if they had elected to assess the property to John Doe or to persons unknown. See Hardy v. Jaeckle, Mass. (1976). [Note 1a] The assessors elected not to do this, however, and apparently acting on the advice of the surveyors who had prepared the new plans assessed the property to the heirs of John Kempton Cobb. On this record it is impossible to fault the decision that locus is a part of the Cobb holdings. While it is clear that a tax assessed to one who is neither the owner nor occupant of the property is void, J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520 , 522 (1914); Stone v. New England Box Co., 216 Mass. 8 ) 11 (1913); Desmond v. Babbitt, 117 Mass. 233 , 234 (1875), there is sufficient evidence on the record to sustain the action of the assessors in determining that the heirs of John Kempton Cobb were the owners. An expert title examiner testified at the trial on behalf of the petitioner that he was unable to establish on the records that locus once was the property of Mr. Cobb. If it were not, however, the petitioner's case would not be aided as his title rests on establishing the validity of the assessment.

The question then arises as to whether there were additional assessed owners other than those listed in the town's assessment records who should have been named as such and to whom notice should have been given. It has generally been held that if the assessment is joint, assessment to only one of the joint owners is sufficient, McManus v. Boston, 320 Mass. 585 (1947) so if one, but not all of the owners is assessed, the assessment survives attack on this ground. Indeed G. L. c. 60, §56 authorizes the assessment, sale or taking in the name of one or more of the record owners at the date of assessment and generally provides that this is to be deemed to be in the name of the owner. In any event it is settled that the assessors need not go without the records of the Registry of Deeds and Probate in determining any parties entitled to notice. Hardy v. Jaeckle, supra. On the basis of the records as of January 1, 1961, the statutory assessment date, the determination made by the Plymouth assessors appears to have been correct. William H. Cobb died after the assessment date albeit in 1961. It also would have been possible for the assessors to find an address for Alice Woodard if they had realized Sarah F. King was the wife of Edward King and followed the title into his estate which was probated in Plymouth County, but they had no duty to follow the King clues to locate Alice Woodard and to obtain her address from the petition for probate. See Hardy v. Jaeckle, supra at 244; Fuller v. Fuller, 228 Mass. 441 , 444 (1917); Conners v. Lowell, 209 Mass. 111 , 119 (1911).

As it appears that the respondents do have an interest in the locus, the Court must consider whether there are any substantial or misleading errors in the tax taking procedure. If any errors were made, the petitioner has the burden of proving that they were not substantial or misleading within the meaning of G. L. c. 60, § 37. Pass v. Seekonk, Mass. App. Ct. (1976). [Note 2]

The assessors are charged with knowledge that John Kempton Cobb died testate, a resident of Plymouth, and by his will devised an undivided seven-tenths interest in the "Nick's Rock Wood Lot" to his grandchildren Lemuel Cobb and John K. Cobb and an undivided three-tenths interest therein to William J. Thomas and Frederick Thomas. The latter-named John K. Cobb was the father of William H. Cobb, and died without any probate of his estate. Accordingly there was no reason why the Collector of Taxes should have been on notice that the William H. Cobb who died in 1961, a resident of Middleborough, was in the chain of title and thus should have been notified of the intention to assign the tax title and received a demand. It is clear from G. L. c. 60, §16, Franklin v. Metcalfe, 307 Mass. 386 (1940), that demand need be made on only one of the heirs, but it would be prudent for the Collector to select an assessed owner who may reasonably be reached. Since the Collector, no less than the assessors, is charged with notice of the records in the Registry of Probate, Conners v. Lowell, supra, it would seem that a search should have been made before mailing the notices returned by the post office for insufficient addresses. However, even if a search were made, the Middleborough address may well have been instrumental in leading the Collector astray. [Note 3] As I have said, the burden of establishing that errors in the tax taking procedure were not substantial or misleading, the criterion of G. L. c. 60, §37, falls on the petitioner. Pass v. Seekonk, supra. A review of all the evidence does not reveal any records in the registries of which the Collector was charged with notice and which would have directed him to a proper address for at least one of the joint owners. The facts of the present case are distinguishable from Bartevian v. Cullen, 369 Mass. 819 (1976) where the deed to the record owners gave a Newton address but demand was sent only to Plymouth. In this instance I find and rule that the burden has been borne.

The respondents also challenge the sufficiency of the description of the property contained in the notice of taking. A reference to an assessors' plan is a sufficient description. Larsen v. Dillenschneider, 238 Mass. 56 , 57 (1920). In this particular case, the only other possible description would have been Nicks Rock woodlot. Considering that no one is sure whether the Nicks Rock woodlot is the property described in the taking or where the woodlot is, this description would not have been helpful in identifying the property. The sufficiency of the description is a question of fact for the judge. Franklin v. Metcalfe, supra. The major problem with the description used in the taking is that there is no reference to the assessors' map. The description is

Land, Plymouth and Kingston Line, being Lot 15 Plat 104 and Lot 26 Plat 102, containing about 154.97 Acres.

(Exhibit No. 4). The test for the sufficiency of a description is whether it enables the owner of the property to determine that his property is the subject of the taking. Boston v. Boston Port Development Co., 308 Mass. 72 , 78 (1941). Taking into account the uncertainty of the location of the respondents' property, I think that the description in the taking was sufficient since there was no substantial or misleading error. Lowell v. Boland, 32 Mass. 300 , 302 (1951). The reference to a plat is a customary way of drafting the shorthanded description. It obviously refers to assessors' plans; to anyone who owns undeveloped tracts of land, a description such as that used by the Plymouth assessors here would naturally have been interpreted as a reference to the Plymouth assessors' plans.

More worrisome, however, is the procedure by which the property was assessed to the Cobb heirs and the tax bills mailed to the petitioner. There has been no explanation as to why an apparent stranger was sent the bills nor any introduction of the instrument noted on the assessors' index card (Exhibit No. 54C) apparently as an indication of the reason for the assessment. So far as the record before this Court is concerned, the petitioner's interest did not materialize until the assignment of the tax title account, and even then the statute no longer permits assessment to a tax title holder. Lowell v. Marden & Murphy, 321 Mass. 597 (1947). This being so, neither should the bills have gone to him.

This Court has discretion as to redemption and may permit those having an interest to redeem upon such terms as justice and the circumstances warrant. G. L. c. 60, § 68. Johnson v. McMahon, 344 Mass. 348 (1962). At the trial it was agreed that if the Court should find the tax taking valid, evidence would be introduced as to the amounts which the parties contend should be the price of redemption. At such time evidence also is to be introduced as to the present owners of such undivided interests in said lots as were not established at the trial.

Upon all the evidence I therefore find and rule that the tax taking made by the Town of Plymouth by instrument dated May 4, 1962 and recorded in Book 2932, Page 204, is valid, that the assignment to the petitioner is not defective, and that the circumstances surrounding this case are such that the respondents are entitled to redeem.

The case is to be set down for a further hearing on the terms of redemption.

Judgment accordingly.