CITY OF SPRINGFIELD vs. PURPLE HYACINTH, INC.

Pursuant to G. L. c. 60, §65, The City of Springfield has filed petitions to foreclose all rights of redemption and tax titles on four parcels of land described in the petitions as follows: 9-19 Hampden Street containing about 7808 square feet and shown on Plan 304 on file with the Springfield Board of Assessors; 563-565 Union Street containing about 5,527 square feet and shown on Plan 519 on file with the Springfield Board of Assessors; 62 Westminster Street containing about 14,400 square feet and described in a deed recorded September 25, 1962 Hampden County Registry of Deeds; Book 2906, Page 242; and 157 Wilbraham Avenue containing about 4,825 square feet and described in a deed recorded January 10, 1956 Hampden County Registry of Deeds, Book 2444, Page 42.

In each case respondent filed an answer "seeking to pay the fair tax on the subject property and to redeem it upon such terms as may be fixed by the Court." Respondent also filed an amended answer in each case by which he "questions the validity of the City tax title and seeks a determination in these proceedings pursuant to the provisions of G. L. c. 60, §70."

The petitions were consolidated for the hearing held on November 20, 1979 at which a stenographer was sworn to take and transcribe the testimony. Three witnesses testified and nineteen exhibits were entered into evidence and are incorporated herein for the purpose of any appeal.

From all of the evidence the Court finds the facts to be as follows:

1. Respondent David Schaffer acquired title to the real estate which is the subject of this petition as follows: the first parcel 9-19 Hampden Street, by deed dated January 26, 1945 recorded in Book 1793, Page 464 at the Hampden County Registry of Deeds [Note 1]; the second parcel, 563-565 Union Street by deed dated August 9, 1956 recorded in Book 2560, Page 464; and the third parcel, 62 Westminster Street by deed dated September 15, 1956 recorded in Book 2547, Page 262; and the fourth parcel, 157 Wilbraham Avenue, by deed dated January 10, 1956 recorded in Book 2444, Page 42.

2. On December 22, 1961 the said Schaffer conveyed all the real estate owned by him in Hampden County (which includes the above) to his then attorney Stuart G. Waite by deed recorded in Book 2853, Page 510. (Ex. 2).

3. On January 1, 1962 the said Stuart Waite was the owner of record of the four properties described in the petitions (see paragraph 1). The real estate taxes, though, were not assessed to him but rather to David Schaffer, at 13 Hampden Street and the 1962 tax bill sent to the said Schaffer at 13 Hampden Street, Springfield, Mass. These real estate taxes were paid although there is no evidence as to who paid them.

4. On July 18, 1962, Purple Hyacinth, Inc. was incorporated under the laws of the Commonwealth. (Ex. 4). David Schaffer was an officer and the principal owner of this corporation. [Note 2]

5. On September 25, 1962 Stuart G. Waite transferred all of the real estate heretofore transferred to him by David Schaffer as set forth in paragraph 2 herein to Purple Hyacinth, Inc. by a deed recorded in Book 2906, Page 242 (Ex. 3).

6. In 1963 and 1964 Purple Hyacinth Corporation was the owner of record of the said real estate. The taxes for these years were assessed to David Schaffer and the bills sent to Schaffer at the above mentioned address were paid, although it is not clear by whom.

7. Purple Hyacinth, Inc. was dissolved by order of the Supreme Judicial Court on December 20, 1965 probably for failure to file its certificate of condition. (Ex. 4)

8. David Schaffer, in his answer, admits that he "was the sole stockholder of Purple Hyacinth, Inc. at the time of its dissolution."

9. The Springfield Assessors office continued to assess the real estate taxes on the four parcels to David Schaffer, rather than to the record owner, Purple Hyacinth, Inc. until the year 1974. In 1974 for some unknown reason the parcels were then assessed to Purple Hyacinth, Inc. even though it had been dissolved in 1965.

10. In 1965 even though the record owner of the parcel described as 9-19 Hampden Street was Purple Hyacinth, Inc. the parcel was assessed to David Schaffer and the taxes were not paid. A tax bill and a demand for payment were sent to David Schaffer at the 13 Hampden Street address. On June 27, 1967 the taxes were still unpaid and, after notice of its intent to take the property for non-payment of the 1965 taxes was published June 12, 1967, the City made a taking by an instrument duly recorded in Book 3629, Page 115. (Ex. 16)

11. In 1967 even though the record owner of the parcel described as 563-565 Union Street was Purple Hyacinth, Inc. the parcel was assessed to David Schaffer and the taxes were not paid. A tax bill and demand for payment were sent to David Schaffer at the 13 Hampden Street, Springfield address. On September 23, 1969, the taxes were still unpaid, and after notice of its intention to take the property for non-payment of the 1967 taxes was published September 8, 1967, the City made a taking by an instrument recorded in Book 3459, Page 481. (Ex. 18)

12. In 1965 even though the record owner of the parcel described as 62 Westminster Street was Purple Hyacinth, Inc. the parcel was assessed to David Schaffer and the taxes were not paid. A tax bill and a demand for payment of these taxes were sent to David Schaffer at the 13 Hampden Street address. On April 29, 1975, the taxes were still unpaid and, after notice of its intention to take the property for non-payment of the 1965 tax was published March 14, 1975, the City made a taking by an instrument recorded in Book 4135, Page 321. (Ex. 19)

13. Likewise in 1969 even though the record owner of the parcel described as 157 Wilbraham Avenue was Purple Hyacinth, Inc. the parcel was assessed to David Schaffer and the taxes were not paid. A tax bill and a demand for payment were sent to David Schaffer at the 13 Hampden Street address. On April 13, 1971, the taxes were still unpaid, and after a notice of its intent to take the property for non-payment of the 1969 taxes published March 29, 1971, the City made a taking of the property by an instrument recorded in Book 3581, Page 178. (Ex. 17)

14. In 1972 David Schaffer applied for tax abatements on all of the properties except 62 Westminster Avenue but never prosecuted these to a conclusion.

Respondent contends that the four tax takings were invalid because the assessments and the subsequent takings were not made in the name of the record owner of the parcels.

G. L. c. 59, §11 reads in pertinent part:

Taxes on real estate shall be assessed, in the town where it lies, to the person who is the owner on January first, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, where the estate lies, as owner on January first, even though deceased, shall be held to be the true owner thereof.

This statute permits assessment to the owner in fact of real estate, even though he is not the person appearing of record to be the owner of such real estate. Boston v. Quincy Market and Cold Storage Co., 312 Mass. 638 , 648. The statute permits assessing officers to resort to the fiction that the record owner is the true owner even if it is known by them to be untrue, but it does not compel them to resort thereto. Boston v. Quincy Market and Cold Storage, supra at 650.

In December 1968, three years having elapsed from the date of dissolution of Purple Hyacinth, Inc. David Schaffer became the owner of all of that corporation's real property by reason of being the corporation's sole shareholder upon dissolution. Cummington Realty Associates v. Whitten, 239 Mass. 313 (1921). The 1969 taxes on the parcel described as 157 Wilbraham Avenue were thus properly assessed to David Schaffer as true owner even though the dissolved corporation appeared of record as the owner. The Court therefore finds that the taking of the 157 Wilbraham Avenue parcel made in 1971 against David Schaffer for non-payment of 1969 real estate taxes was valid.

The takings of the parcels at 62 Westminster Street and 563-565 Union Street were for non-payment of taxes assessed to David Schaffer in 1965 and 1967 respectively. In 1965 Purple Hyacinth, Inc. was true owner and also appeared as record owner of the parcels but late that year the corporation was dissolved. It continued as a body corporate for three years through December 1968 "to dispose and convey its property" and to "settle and close its affairs." See G. L. c. 151, §51. The assessments for the taxes in 1965 and 1967 should thus have been made in the name of the corporation. It must be remembered that David Schaffer was an officer of the corporation and the principal owner thereof, and that when the takings were initiated in 1975 and 1969 respectively David Schaffer was then in fact the true owner of the parcels. Since the final burden of the tax rests upon the owner in fact, Boston v. Quincy Market and Cold Storage, supra at 646 and it was against the owner in fact that the city proceeded in the takings, the assessors error in 1965 and 1967 cannot be said to have injuriously affected respondents rights. This is particularly true where in 1963 and 1964 the same error made by the assessors resulted in the tax being paid.

The taking of the parcel at 9-19 Hampden Street was made in 1967 and was for non-payment of the 1965 real estate taxes. As previously noted Purple Hyacinth, Inc. was the owner in fact and also appeared as the record owner of the parcel in 1965. The assessment should properly have been made in the name of the corporation. When the taking was made, in 1967, Purple Hyacinth, Inc. was still legally in existence in order to close its affairs. The City should properly have named the corporation in its tax taking proceedings. But whether or not these irregularities in the proceedings to establish a tax title are substantial enough to invalidate the tax title is a question of fact which must be decided according to the circumstances of the case. See Pass v. Town of Seekonk, 4 Mass. App. 447, 450 (1976). In the previous years, 1963 and 1964, when Purple Hyacinth, Inc. was record owner of the parcel the taxes were assessed to David Schaffer. The tax bills sent to him for these years were paid indicating that Schaffer assumed responsibility in the matter. Schaffer made no objection concerning the misnaming in these assessments. In addition it is important to note that Schaffer was an officer and principal owner of Purple Hyacinth, Inc.Under these circumstances it cannot be said that the assessors error was substantial within the meaning of G. L. c. 60, §37.

The Court thus finds and rules that the four tax takings described in paragraphs 10 through 13 above are valid.

Respondent further argues that the failure of the city assessors to also include in its assessment to David Schaffer the name of the person so appearing of record pursuant to G. L. c. 59, §11. But in light of the circumstances of this case the failure of the assessors to follow the statutory mandate is not fatal to the tax title.

Petitioner has argued that the conveyance by David Schaffer to Stuart Waite (paragraph 2) and Stuart Waite to Purple Hyacinth, (paragraph 4) are indefinite within the meaning of G. L. c. 184, §25 and thus of no effect. But though each of the deeds gives only a blanket description of the property meant to be conveyed, each description refers to instruments duly recorded at the Hampden County Registry of Deeds. Each deed thus is sufficient to pass title to all the land shown by the records to be embraced by them. See Swaim, Crocker's Notes on Common Forms, Sixth Ed., §123.

Petitioner has filed five requests for findings of fact in each of the four tax lien foreclosure cases. In so far as they are consistent with the Court's own findings they are granted; otherwise they are denied. Petitioner has also filed four requests for conclusions of law in each of the cases. Each of the four requests numbered 1 is denied; all others are granted.

Respondent has filed eight "proposed findings of fact" in each of the four cases. Requests numbered 1, 2, 3, 5, 7 and 8 are granted in each of the four cases. Requests numbered 6 in Tax Lien Case Nos. 56271 and 55767 are granted. Requests numbered 6 in Tax Lien Case Nos. 56275 and 56272 are denied. Requests numbered 4 in each of the four cases are granted excepting the phrase "as the owner of record" contained therein.

In his answer respondent has indicated a willingness to redeem the four properties bypaying the taxes owed. It is the policy of the law to favor redemption. See West v. Town of Yarmouth, 345 Mass. 547 , 550 (1963). The Court directs that the City allow respondent to redeem if within sixty days hereof the respondent pays to the City of Springfield the principal amount of the tax due on each of the four parcels herein described plus interest and charges thereon to date. If such payment is not made by the respondent the Court rules that the petitions of the City of Springfield to foreclose all rights of redemption from tax lien proceedings in tax lien cases Nos. 55767, 56271, 56272, 56275 be and hereby are allowed.

Decree accordingly.