GUARANTEE MORTGAGE CORPORATION, STATE STREET BANK AND TRUST COMPANY and STANLEY REICH, TRUSTEE OF MASSACHUSETTS REALTY TRUST vs. TOWN OF BURLINGTON, NICHOLAS L. METAXAS, COMMISSIONER OF THE DEPARTMENT OF CORPORATIONS AND TAXATION, MURRAY HILLS, INC., and ROBERT M. MCGINNESS.

Plaintiffs have filed a complaint (twice amended) for a declaratory judgment under G. L. c. 231A, §1, asking this court to determine the validity of a low value tax sale held pursuant to G. L. c. 60, §79, that involved properties in Burlington, Massachusetts, in which they had various interests. Both sides have moved for summary judgment pursuant to Mass. R. Civ. P. 56, and have submitted affidavits, exhibits, and a stipulation as to certain facts.

Plaintiffs allege that on January 14, 1974, defendants Robert M. McGinness and Murray Hills, Inc. separately purchased parcels of land at a public auction held by the Town Treasurer of the Town of Burlington (the town). The town had acquired putative title to the properties on September 17, 1971, as a result of the previous owners' failure to pay the 1969 real estate taxes assessed thereon. On January 31, 1974, Guaranty Mortgage Corporation (Guaranty) filed a petition for declaratory relief in Middlesex Superior Court [Note 1] naming as defendants the Town of Burlington, Murray Hills, Inc. and Robert M. McGinness. Guaranty alleges that it holds mortgages from Hart Properties, Inc. and Parson Realty Trust covering certain lots of land in Burlington, and that the notes secured by the mortgages remain unpaid; that on September 17, 1971, the town took the mortgaged property for the nonpayment of the 1969 real estate taxes; that the taking was recorded, but that no notice was given or sent to Guaranty, and that it had no knowledge of it; and that all of Guaranty's mortgages had been recorded prior to the taking. Guaranty further alleges that on November 12, 1973, pursuant to G. L. c. 60, §79, the Commissioner of Corporations and Taxation, acting by his Associate Commissioner, Deborah Ecker, submitted an affidavit that none of the lots exceeded $2,500.00 in value, and that they were of insufficient value to meet taxes, interest, charges, and all subsequent taxes and assessments; that it had no knowledge of that action; that the actual value of each lot was well in excess of $2,500.00; that on December 20, 1973, the Treasurer of the town mailed to Hart Properties, Inc. and Parson Realty Trust notices advising that the mortgaged lots would be sold on January 14, 1974; that the form of the notice was prescribed by the Commissioner of Corporations and Taxation and provided that all persons with any interest in the land must be informed of the sale by registered mail at least 14 days prior to the sale; that the treasurer of the town published notice of the sale in the Burlington Times Union, a local newspaper; and that Guaranty was neither informed nor aware of the sale. Finally, Guaranty alleges that on January 14, 1974, the lots were purchased separately by defendants Robert M. McGinness and Murray Hills, Inc.; and that on January 29, 1974, Guaranty tendered to the treasurer of the town, for the purpose of redeeming said lots, a check for the sum claimed to be due by the town to satisfy delinquent real estate taxes on the lots, which tender was refused.

Guaranty claims the sale violated its right to due process of law as guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article X of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts in two respects. First, it asserts that it was entitled to notice by mail of the auction, and second, that the notice contained in the Burlington Times Union failed even as published notice because it did not reasonably identify the lots to be sold. Guaranty also claims that the sale was invalidated by the town's failure to comply with the Commissioner's form requiring that personal notice be mailed to all interested parties. It further claims that the town's failure to give notice pursuant to G. L. c. 60, §80A gives it the right to redeem the lots. Finally, Guaranty argues that the actual value of each of the lots was well in excess of $2,500.00, thus alegedly rendering G. L. c. 60, §79 inapplicable; and that the valuation procedure prescribed by §79 is unconstitutional.

Guaranty prays that the court allow it to redeem the lots sold by the town to the defendants by payment of such an amount as the court declares due.

Subsequent to the filing of the original complaint, several parties were added as plaintiffs and defendants. Added as a plaintiff was Stanley Reich, as he is Trustee of Massachusetts Realty Trust (under Declaration of Trust dated March 30, 1973), who allegedly owned the lots immediately prior to the sale. Reich also asks this court to allow him to redeem the lots sold by the town. Also added as a plaintiff was the State Street Bank and Trust Company (State Street), to which Guaranty had assigned its two mortgages prior to the sale. Guaranty added as defendant Nicholas L. Metaxas (the Commissioner), who was the Commissioner of the Department of Corporations and Taxation at all times relevant to this suit.

Defendants essentially admit most of plaintiffs' allegations, but deny that the procedure utilized by the town to sell the land failed in any way to meet statutory or constitutional requirements. The town pleads the affirmative defense of sovereign immunity, and the Commissioner specifically alleges that his valuation of the lots is conclusive, and the procedure constitutional.

Defendants Murray Hills, Inc. and Robert M. McGinness filed a counterclaim alleging that all relevant sections of G. L. c. 60 had been complied with and that the title they took was absolute on the recording of the deed each received from the treasurer of the town. They pray that this court issue Orders of Notice requiring all persons having outstanding interests of record in the disputed lots from January 1, 1969, to the time of the sale to the defendants to appear and answer the allegations in the amended complaints. Specifically named were Charles M. McLaughlin III and Robert F. McLaughlin, Trustees of Parson Realty Trust; Charles H. McLaughlin, Trustee of McLaughlin Realty Trust; and Hart Properties, Inc. [Note 2]

The parties have submitted a stipulation of certain facts. Based on the pleadings, the affidavits and attached exhibits, a deposition, answers to interrogatories, and written stipulations, the court rules that there are no genuine issues as to any material facts. Therefore, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. See Community National Bank v. Dawes, 369 Mass. 550 (1976). All documents referred to are incorporated into the decision for the purpose of any appeal. From all the aforesaid sources, I find the following facts:

1. On August 15, 1961, by deed recorded in Book 9874,Page 256, [Note 3] Charles H. McLaughlin III and Robert F. McLaughlin, Trustees of Parson Realty Trust under Declaration of Trust dated May 9, 1952, as amended (Parson Realty Trust), acquired title to real estate which included Lot 45 (hereinafter so designated) as shown on a plan entitled "Woodhill Manor, Section 3 in Burlington, Mass." and dated September 1, 1960, which plan is recorded as Plan 82 of 1961 at the end of Plan Book 9747.

2. On September 16, 1961, by deed recorded in Book 9893, Page 600, Charles H. McLaughlin, Trustee of the McLaughlin Realty Trust under Declaration of Trust dated December 1, 1949 (McLaughlin Realty Trust), acquired title to approximately 33 acres of land ("said 33 acres") on Mill Street, Burlington, Middlesex County, as more particularly described in said deed; the major portion of the said 33 acres were subdivided into Lots 8 - 42 inclusive, Lots 44 - 55 inclusive, Lot 56, Lots 57 - 59 inclusive on a plan entitled "Glen Cove Park in Burlington,Mass." dated August 15, 1960, surveyed by Northeastern Engineering Association by Ronald A. Forbes, Land Surveyor, which plan is recorded at the end of Book 9796.

3. Lot 45 and "said 33 acres" constitute all of the real estate which is the subject of the complaint and of all counter-claims in this action.

4. On August 8, 1968, by deed recorded on August 9, 1968 at Book 11553, Page 406, [Note 4] Parson Realty Trust conveyed title to property including said Lot 45 to Hart Properties, Inc.

5. Also on August 8, 1968, Hart Properties, Inc. gave a mortgage to Guaranty covering property including Lot 45 which was recorded in Book 11553, Page 408.

6. Also on August 8, 1969, Guaranty assigned the mortgage of Lot 45 granted to it by Hart Properties, Inc., referred to in paragraph 5 above, to the State Street Bank and Trust Company (State Street). This assignment was not recorded until September 10, 1975, at Book 12858, Page 557.

7. By deed dated August 19, 1969 and recorded on August 21, 1969 in Book 11727,Page 408, McLaughlin Realty Trust conveyed said 33 acres to Guaranty.

8. By deed dated August 19, 1969 and recorded on August 21, 1969 in Bok 11727, Page 410, Guaranty conveyed said 33 acres to Parson Realty Trust.

9. On August 19, 1969, Parson Realty Trust, granted a mortgage to Guaranty of said 33 acres recorded on August 21, 1969 in Book 11727, Page 412.

10. On August 22, 1969, Guaranty assigned the mortgage granted to it by Parson Realty Trust, referred to in paragraph 9 above, to State Street. This assignment was not recorded until September 10, 1975 at Book 12858, Page 558.

11. On January 14, 1974, the date of the foreclosure sale, Guaranty was the mortgagee of record of Lot 45 and of "said 33 acres" and Stanley Reich was the owner of record of Lot 45 and "said 33 acres."

12. Guaranty did not give the notices described in G. L. c. 60, §§38 and 39 relative to any of the aforesaid parcels of land to the Collector of Taxes for the Town of Burlington (Collector).

13. On or about September 19, 1969, the Collector caused to be mailed the 1969 real estate tax bill for Lot 45 to, and said bill was received by, the owner, Hart Properties, Inc., in the due course of the mails.

14. The Collector caused to be mailed on or about September 19, 1969, the 1969 real estate tax bills on said 33 acres to, and said bills were received by, the former owner, McLaughlin Realty Trust in the due course of the mails. McLaughlin had conveyed the 33 acres to Guaranty one month earlier.

15. On February 11, 1970, the Collector made demand for payment of unpaid 1969 taxes assessed to Hart Properties, Inc. upon said Lot 45.

16. On February 11, 1970, the Collector made a demand for payment in due form for unpaid 1969 taxes assessed to McLaughlin Realty Trust upon the said 33 acres.

17. By instrument dated March 29, 1971, Guaranty released Lots 25 through 42 inclusive (being a part of the 33 acres) from the provisions of said mortgage recorded in Book 11977, Page 487. Both the partial release and the new mortgage between the same parties were recorded together on April 6, 1971.

18. On September 2, 1971, the 1969 taxes on Lot 45 and "said 33 acres" remaining unpaid, a notice of intention to take each said lot was published by the Collector in the Burlington Times-Union Newspaper [Note 5] and all said notices were posted in two or more convenient and public places in Burlington.

19. On September 17, 1971, the 1969 taxes on the property remaining unpaid, the Collector made takings against each of said lots comprising "said 33 acres" and said Lot 45 by separate instruments of taking, all recorded on November 9, 1971.

20. By two deeds dated and recorded on March 30, 1973; Parson Realty Trust transferred all of its interest first by deed of said Lots 25 through 42 inclusive, and second by deed of the remainder of 33 acres, except for Lot 43, to Stanley Reich, as he is Trustee of Massachusetts Realty Trust, under Declaration of Trust dated March 30, 1973, said deeds being recorded in Book 12405, Page 484 and 490, respectively.

21. By deed dated March 30, 1973, and recorded on December 24, 1973 in Book 12571, Page 205, Hart Properties, Inc. transferred all of its interest in certain real estate, including said Lot 45, to Stanley Reich, as he is Trustee of Massachusetts Realty Trust.

22. On November 12, 1973, purporting to act pursuant to G. L. c. 60, §79, the Commissioner made an affidavit that the value of each of the lots in the 33 acres and said Lot 45 was not more than $2,500.00; and that each was of insufficient value to meet taxes; interest and charges, all subsequent taxes and assessments, Which affidavit was recorded as instrument no. 221 on November 26, 1973, Book 12558, Page 183.

23. The town did not send written notice of the recording of the Commissioner's affidavit of low value to either Guaranty or Stanley Reich. Nor did the town send notice to State Street.

24. On December 20, 1973, the town treasurer, not a party to this suit, caused a notice of a proposed sale of the said lots at public auction on January 14, 1974, to be publishd in the Burlington Times-Union Newspaper and posted a notice of the sale in a convenient and public place in Burlington, purporting to act pursuant to G. L. c. 60, §79. The notice stated as follows:

NOTICE OF SALE

LAND OF LOW VALUE

December 20, 1973

NOTICE IS HEREBY GIVEN THAT on January 14, 1974, at 9:30 A.M., at Town Treasurer's Office, pursuant to the provisions of General Laws, Chapter 60, Sections 79 to 80B, inclusive, and by virtue of the recording on November 26, 1973, of an affidavit of a finding by the Commissioner of Corporations and Taxation, with Middlesex South District Registry of Deeds, as Instrument No. 221, I SHALL OFFER FOR SALE AT PUBLIC AUCTION, severally or together, certain parcels of land of low value listed in said affidavit, said parcels having been taken or purchased by the Town of Burlington for nonpayment of the taxes due thereon.

ARTHUR A. ZERVAS, Treasurer of the Town of Burlington.

Prior to the sale the Treasurer also mailed copies of Notices of Sale to Hart Properties, Inc. and Parson Realty Trust who were the owners of record of all of the lots as of January 1, 1973.

25. The real estate taxes for the years 1969 through 1973 applicable to each lot referred to remained unpaid through January 14, 1974.

26. On January 14, 1974, the Town Treasurer held a public aucton of the said lots. All of the said lots were purchased by the defendant Murray Hills, Inc. (except Lot 56, Glen Cove Park), and on January 14, 1974, the town executed and delivered to it a deed for the lots purchased by it, which deed was recorded on January 24, 1974 in Book 12582, Page 572.

27. At the public auction held on January 14, 1974, the defendant, Robert M. McGinness, purchasd Lot 56, Glen Cove Park; and on January 14, 1974, the town executed and delivered to him a deed for the lot purchased by him, which deed was recorded on January 24, 1974, in Book 12582, Page 571.

28. On January 29, 1974, Guaranty offered the Town Treasurer a letter and check tendering the sum of $12,426.39 for the purpose of redeeming all of the lots, which tender was refused.

This case involves three plaintiffs, each of whom claims a different interest in the properties sold by the town, and all of whom are attempting to have the low value sale declared a nullity against the defendants who are bona fide purchasers for value. At one time prior to the recording of the tax taking, Guaranty acquired the fee to all the lots with the exception of Lot 45, upon which it held a mortgage. On the same date it acquired title to the properties, Guaranty deeded out the properties and took a mortgage back. By instrument dated March 29, 1971 and recorded April 6, 1971, Guaranty released its interest in Lots 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 to Parson Realty Trust. By instrument dated March 31, 1971 and recorded April 6, 1971, Parson Realty Trust again mortgaged Lots 25 - 42 inclusive to Guaranty. As of January 14, 1974, (the date of the foreclosure sale), Guaranty remained the mortgagee of record on all the lots even though it had previously assigned its mortgages to the State Street Bank and Trust Company. Guaranty now complains that it was entitled to direct notice of the public auction.

The second plaintiff, State Street, became the assignee of Guaranty's mortgages prior to the tax taking, but failed to record the assignments until September 10, 1975, 20 months after the properties had been sold. As of January 14, 1974, there was nothing on the record to indicate that State Street had any interest in the properties. State Street also complains that it was entitled to direct notice of the tax sale.

The third plaintiff, Stanley Reich, as he is Trustee of Massachusetts Realty Trust, acquired an interest in the properties after the instruments of taking were recorded. He became owner in fee of all the lots on March 30, 1973, by three instruments. Two of the deeds were recorded on that date and one was recorded on December 24, 1973. As of January 14, 1974, Stanley Reich, Trustee, was the owner of record of all the properties that comprise the subject matter of this suit. Reich also complains that he was entitled to direct notice of the tax sale.

Certain threshold questions must be addressed before the merits of the complaint are reached.

First is the issue of whether or not plaintiff Guaranty has standing to raise and maintain the substantive issues set forth in the complaint. To be a proper party to a suit, one must have an interest in the subject matter. Kaplan v. Bowker, 333 Mass. 455 (1956) (and cases cited). The agreed facts disclose that Guaranty became the mortgagee of record of all of the lots in question before the tax foreclosure process began. It is also undisputed that Guaranty assigned its interest as mortgagee by instruments dated August 22, 1969 and April 13, 1971, to State Street. Each instrument of assignment was absolute on its face and assigned the notes and mortgages to State Street without recourse. For reasons unknown to the court, State Street did not record the assignments until September 10, 1975.

During the arguments on the Motions for Summary Judgment the court raised the issue of Guaranty's standing in view of the absolute assignments. At that point counsel for Guaranty requested and was given leave to supplement the record. Guaranty subsequently submitted an affidavit made by Charles H. McLaughlin, President, Treasurer and a Director of Guaranty, which set forth that, notwithstanding the absolute nature of the instruments of assignment, they in fact had been given to State Street as collateral security for loans previously made and thereafter to be made to Guaranty. There were no supporting exhibits or documentation from either Guaranty or State Street to corroborate that the assignments had been tendered as collateral security.

On the other hand, although the defendants submitted briefs that addressed the issue of Guaranty's standing, the claims set forth in Guaranty's affidavit were not controverted, by affidavit or otherwise, by any of the defendants. Therefore, for the purpose of ruling on the motions for summary judgment, I find that the assignments constituted a pledge and rule that Guaranty retains sufficient equity in the mortgages to have standing to bring this suit.

The second threshold issue is whether Guaranty is estopped from protesting its lack of notice by its failure to comply with G. L. c. 60, §§38, 39. Section 38, "Mortgages: notice requiring demand for payment" provides,

"[i]f a mortgagee of land situated in the place of his residence, before July first of the year in which the tax is assessed, gives written notice to the collector that he holds a mortgage on land, with a description of the land, the demand for payment shall be made on the mortgagee instead of the mortgagor."

Section 39, "Service of tax notice; designating place" provides,

"[i]f a mortgagee or an owner of land causes a notice, designating a place in the town where such land lies at which all papers relative to taxes on such land which are to be served on him may be left, to be recorded in January of any year in the office of the clerk of such town and, during said month, to be delivered to the collector thereof, the collector shall serve at such place any notice, demand for payment or other paper relating to the taxes on such land which is to be served by him. The collector shall not advertise the sale of such land for two months after the time of a demand so made."

It has been held that "a mortgagee not in possession must take some affirmative action to cause notice [of a tax taking under G. L. c. 60, §53] to be sent to him." Vee Jay Realty Trust v. DiCroce, 360 Mass. 751 , 754 (1972). (Bracketed material added). Defendants argue that a mortgagee must also take affirmative action to be entitled to notice of a low value sale under G. L. c. 60, §79, and that failure to notify the collector forecloses the mortgagee's rights of redemption. This is a misapplication of §§38 and 39. Section 38 is concerned with the demand for payment, not with the notice of foreclosure of redemptive rights. Section 39 is concerned with all papers relative to taxes. Both sections afford a mortgagee or owner an opportunity to notify the town, but neither section imposes an obligation or purports to foreclose a mortgagee or owner's rights if they fail to comply with its provisions. See Bartevian v. Cullen, 369 Mass. 819 , 823 (1976). Inasmuch as §79 does not provide that actual notice must be given to any person, it would be illogical to view the notification procedures of §§38 and 39 as a limitation on notice under §79. Therefore, I rule that Guaranty's failure to notify the collector of its interest in the subject land does not estop Guaranty from complaining that it did not receive notice of the low value tax sale.

The final threshold question is whether or not State Street has standing to bring this suit. Although Guaranty remained the mortgagee of record until September 10, 1975 (a date after the public auction), it had assigned its interest in all the lots to State Street by instruments dated August 22, 1969 and April 13, 1971. The fact that the assignments were not recorded until September 10, 1975 does not change the legal effect of the assignments. Recording of the assignment is not necessary to convey title. Lamson & Co., Inc. v. Abrams, 305 Mass. 238 (1939).

Therefore, solely for the purposes of ruling on the motions for summary judgment, I find that the assignments to State Street were valid and I rule that State Street, as assignee of Guaranty's mortgages, has standing to assert the claims set forth in its complaint.

There is no question that Stanley Reich, as sole Trustee of Massachusetts Realty Trust, who was the owner of the property when it was sold at auction, has standing to bring this action.

The following four issues are presented for decision:

1. Whether the failure of the town treasurer to send a notice of the sale of the lots of land in question to the plaintiffs invalidates the sale, thus preserving the plaintiffs' rights of redemption.

2. Whether the published notice of the proposed sale was insufficient notice so that the sale of the lots was invalid.

3. Whether the failure of the defendant town to send notice of the time and place of the sale of said lots to the plaintiffs pursuant to G. L. c. 60, §80A, grants to the plaintiffs the right to redeem each of said lots.

4. Whether the plaintiffs can attack the Commissioner's determination of low value after the property has been sold to bona fide purchasers for value at a public auction.

1. WHETHER THE FAILURE OF THE TOWN TREASURER TO SEND A NOTICE OF THE SALE OF THE LOTS OF LAND IN QUESTION TO THE PLAINTIFFS INVALIDATES THE SALE, THUS PRESERVING THE PLAINTIFFS' RIGHTS OF REDEMPTION.

The notice published in the Burlington Times Union read as follows:

NOTICE OF SALE

LAND OF LOW VALUE

December 20, 1973

NOTICE IS HEREBY GIVEN THAT on January 14, 1974, at 9:30 A.M., at Town Treasurer's Office, pursuant to the provisions of General Laws, Chapter 60, Sections 79 to 80B, inclusive, and by virtue of the recording on November 26, 1973, of an affidavit of a finding by the Commissioner of Corporations and Taxation, with Middlesex South District Registry of Deeds, as Instrument No. 221, I SHALL OFFER FOR SALE AT PUBLIC AUCTION, severally or together, certain parcels of land of low value listed in said affidavit, said parcels having been taken or purchased by the Town of Burlington for nonpayment of the taxes due thereon.

ARTHUR A. ZERVAS, Treasurer of the Town of Burlington.

G. L. c. 60, §79 provides, in pertinent part, that the treasurer of the town must give "notice of the time and place of sale by publication fourteen days at least before the sale in a newspaper published in the town, if any, otherwise in the county, and by posting a notice of the sale in some convenient and public place in the town fourteen days at least before the sale, . . ." The plaintiffs do not allege that the town failed to comply with the simple requirements of Section 79, but they claim that they were entitled to direct actual notice of the sale and that G. L. c. 60, §79 is unconstitutional in that it fails to provide for direct actual notice to interested parties.

The constitutionality of the notice requirement of G. L. c. 60, §79 was last directly considered by the Supreme Judicial Court in Napier v. Springfield, 304 Mass. 174 (1939). [Note 6] In reviewing the statute the Court stated, inter alia, that:

". . . [D]ue process requires that notice and opportunity be given those concerned before the tax is conclusively fixed, yet in the process of foreclosing the right to redeem, if it be assumed that some form of notice is necessary, we are of opinion that actual notice, as distinguished from notice by posting as provided in the statutes in question, is not required."

Id. at 179. The reasoning of the Court was based on three theoretical principles. The first is that due process notice requirements are directly affected by the public's interest in the orderly and timely collection of taxes. This is a restatement of the due process balancing test. The Napier Court held that the interest of the public shifted the scale in favor of the taxing authority and that municipalities must be given some latitude in order to collect taxes efficiently. Second, the Court stated that a taxpayer has an opportunity to object to the validity of the tax and the manner of assessment prior to irrevocable foreclosure and that, given this opportunity, the method of foreclosure of the right to redeem is within the discretion of the legislature. "Due process does not require a notice and opportunity for hearing as to each step in the assessment and enforcement of taxes." Id. at 178. This is essentially a "caretaker" principle that once a taxpayer is aware of the tax he or she is presumed to be aware that the property may be taken if no positive steps to redeem are taken. The final theory presented in Napier is that "[t]here is a distinction as to the character of notice required depending upon whether the foreclosure is by judicial or administrative process (see King v. Mullins, 171 U.S. 404, 432, 433; ...) and in the latter type of proceeding notice by publication has been held sufficient." 304 Mass. at 179.

The plaintiffs urge that changes in the concept of due process since Napier compel this court not to follow Napier and hold that Section 79 is unconstitutional, both as applied and on its face.

Several courts have reviewed similar tax lien foreclosure statutes in view of the seminal case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). In that case beneficiaries of a common trust claimed that the judicial settlement of accounts of the fund was invalid because the trustees had given only published notice of the proceeding. The Court agreed, noting that published notice was often no more than a "mere gesture," and held that publication was a constitutionally inadequate means of giving notice to beneficiaries whose names and addresses were at hand. As to that class, no less than mailed notice would suffice. Id. at 318-20.

Application of Mullane to the problem of tax lien foreclosure has produced divergent results. At least two state supreme courts have held unconstitutional statutes authorizing notice of foreclosure solely through publication. See Montville v. Block 69, Lot 10, 74 N.J. 1, 376 A. 2d 909 (1977) and Dow v. State, 396 Mich. 192, 240 N.W. 2d 450 (1969). Also, other jurisdictions have held that published notice is insufficient to insure due process protection to interested parties whose land is sold and whose right to redeem is foreclosed. See Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858 (1967) and Laz v. Southwestern Land Co., 97 Ariz. 69, 397 P. 2d 52 (1964). These cases, however, involve judicially supervised foreclosure where notice requirements are stringent, as they should be. The courts of the Commonwealth have also upheld strict notice requirements pursuant to G. L. c. 60 in the context of judicial foreclosure. Springfield v. Arcade Malleable Iron Co., 285 Mass. 154 (1934).

However, several other courts have upheld the constitutionality of published notice in the context of tax foreclosures. See Chesney v. Gresham, 64 Cal. App. 3d 120, 134 Cal. Rptr. 238(1976), cert. den., 432 U.S. 907 (1977); Christie-Stewart, Inc. v. Paschall, 502 P. 2d 1265 (1972), cert. den., 426 U.S. 934 (1976); Botens v. Aronauer, 32 N.Y. 2d 243, 344 NYS 2d 892, appeal dismissed 414 U.S. 1059 (1973). These cases stress that a taxpayer should know that a sale of his property is inevitable if taxes assessed on it are not paid. They also restate the importance of affording municipalities an efficient and timely means of foreclosing tax liens.

The Supreme Court has stated that published notice of a proceeding is insufficient as to those persons whose names and addresses are at hand. The plaintiffs argue that the names and addresses of Guaranty and Stanley Reich, both of whose interests had been recorded prior to the sale, were available by an examination of the record title. [Note 7]

Thus, the question remains whether the constitutional due process protections outlined in Mullane required direct actual notice of the sale to the plaintiffs.

Due process is not a fixed term or concept and the type of notice required is dependent upon the circumstances of each situation. The concept of due process is ultimately a question of balancing competing interests. The interests to be weighed in the instant case are the need of the municipality to collect its taxes in an orderly and timely fashion and the property rights of the plaintiffs. While the court recognizes that notice and an opportunity to be heard must be given to a taxpayer at some critical stage in the foreclosure procedue before his property interests are permanently extinguished, it is also cognizant of the fact that the public interest requires an acceptable process whereby land may be taken and sold for nonpayment of taxes.

The procedure devised by the legislature in G. L. c. 60, §79 reflects a balancing of the competing interests of taxing authorities and landowners. To require the taxing authority to determine, trace and send direct notice to parties having an interest in low value land, would create a heavy burden on the municipality and would hinder the orderly and speedy procedure of collecting taxes. The interests of the public on facts such as exist in this case outweigh the interests of the plaintiffs.

Stanley Reich does not allege that he was ignorant of the taking of the land for nonpayment of taxes, and the taking was in fact recorded prior to Reich's purchase. He is, therefore, charged with constructive notice of the taking. Guaranty does allege that it was ignorant of the taking, but its failure to notify the town of its interest under c. 60, §§38, 39, deprives this fact of any legal significance. Vee Jay Realty Trust Co. v. DiCroce, 360 Mass. 751 (1972). The plaintiffs could have either paid the tax or challenged its validity under G. L. c. 58A.

At the time §79 allowed a municipality to foreclose after the expiration of two years, [Note 8] and the Supreme Judicial Court has held that the land may be redeemed and the Commissioner's valuation may be challenged at any time prior to the sale. West v. Board of Selectmen, 345 Mass. 547 (1963); Bigham v. Commissioner of Corporations and Taxation, 371 Mass. 270 (1976).

General Laws, Chapter 60, requires interested parties to do more than simply passively await further notification by the town. The mere predictability of a sale at some point in the future is not enough to relieve the town of further responsibility to landowners. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318 (1950). However, when coupled with the need for an expeditious tax collection process, and the opportunity of interested parties with actual or constructive knowledge of the delinquency to postpone or prevent the sale before it occurs, the justification for the statute becomes sufficient. In sum, I cannot say that the balancing achieved by the legislature denies plaintiffs minimal due process.

Even if this court were inclined to hold that actual notice of a low value tax sale of land must be given certain interested parties, I do not think that either Guaranty, as the mortgagee of record, or Stanley Reich, who was not listed as the owner on the assessors records and had recorded one of his deeds four days after notice of the proposed sale was published, was entitled to such notice. Since State Street Bank and Trust Company had not recorded the assignments of the mortgages to it by Guaranty, it cannot complain that it was denied due process because it did not receive actual direct notice of the sale.

Mortgagees are not normally listed on assessors' rolls just as Guaranty was not so noted in this case. Also, persons who purchase land in a given year are not ordinarily listed on the assessors' rolls until January 1 of the following year as Stanley Reich was not so noted in this case. The title would have to be searched to account for record interests of non-owners as well as owners who had obtained an interest in the land since January first. Many small rural towns are not conveniently located near a registry of deeds. An exhaustive title search by such towns might burden them with expenses which are excessive relative to the value of the land to be sold, and could seriously delay the process of sale. Cost is particularly relevant in this case, for, unlike the ordinary tax lien foreclosure statutes struck down by other jurisdictions, the statute at issue here applies only to land with value of less than $2,500.00.

Thus, while this court recognizes that due process concepts have been expanded since Napier was decided, I cannot say that the legislative accommodation of interests validated in Napier has since become unconstitutionally defective. Therefore, relying on the precedent and principles set forth in Napier, I rule that c. 60, §79 is not unconstitutional for failing to provide for direct actual notice of a low value tax sale to the plaintiffs.

Further, the equitable considerations compel the same result. Reich, at the time he acquired title, knew that taxes were owed and that the town had taken the property. Guaranty could have availed itself of the opportunity for direct notice had it complied with §§38 and 39. It also could have inserted a tax escrow clause into its mortgages and controlled timely payment of the taxes. Furthermore, Guaranty had assigned its interest in the properties prior to the taking. Also and most importantly, the town no longer has title to the lots in question and the rights of bona fide purchasers, who have received and recorded deeds from the town, have intervened. The presence of bona fide purchasers distinguishes the instant case from West v. Board of Selectmen of Yarmouth, 345 Mass. 547 (1968) and from Bigham v. Commissioner of Corporations and Taxation, 371 Mass. 270 (1976). [Note 9]

In West the plaintiff brought a bill in equity seeking a declaration that a tax taking of land of low value and subsequent incompleted sale were invalid. In West the plaintiff was not aware that taxes assessed to the locus were due until after the town had taken the property. At the time of the taking she held the locus jointly with her husband as tenants by the entirety. After a divorce and a conveyance to her of the entire interest she became aware of the tax and taking. At this time, the plaintiff attempted to redeem but her offer was refused. Since title to the property was still in the town the Court found that plaintiff's right to redeem had not been extinguished. Thus, the Court stated that "[i]n equity and good conscience she should be allowed to exercise that right." 345 at 551. In this case equity does not require overturning the sales where bona fide purchasers have intervened.

2. WAS THE PUBLISHED NOTICE OF THE PROPOSED SALE INSUFFICIENT NOTICE SO THAT THE SALE OF THE SAID LOTS WAS INVALID?

Plaintiffs challenge the constitutional adequacy of the notice actually published by the town, claiming that the failure to describe the land to be sold rendered it useless, and denied the plaintiffs their constitutional right to at least published notice of the sale.

The plaintiffs' argument is founded on an assumption, and they so argue, that the 1963 amendment to G. L. c. 60, §79 was meant to give additional notice (by publication) of low value land to interested parties whose property is to be sold for nonpayment of taxes. A search of the legislative history lends no insight as to the legislative intent and, without that guidance, the court can only speculate as to the purpose of the amendment by reference to the statute itself.

It appears that the purpose of the published notice requirement of §79 is to alert potential bidders that there will be a sale. I come to this conclusion for two reasons.

First, there is absolutey no requirement to either name the record owner or to describe the property to be sold. In this case the town made reference to an instrument number on the daily sheet in the Registry of Deeds, but even that is not required by §79. Further, there is no requirement to publish the amount owing in back taxes.

Second, the legislature has painstakingly set forth with detail the nature of notice required in the context of a judicial foreclosure (see G. L. c. 60, §40). Section 40 directs the Collector to give notice by publication of time and place of the sale. In addition:

"[s]uch 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 the sale of the undivided real estate of a deceased person assessed to his heirs or devisees 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."

The disparity between the notice requirements set forth in Section 40 (judicial foreclosure sales) and those set forth in Section 79 (administrative foreclosure sales) is a strong indication of the legislature's intent to except low value land sales from stringent notice requirements.

I find that the notice published by the Town of Burlington complied with the statutory requirement of G. L. c. 60, § 79. In fact, the notice, in addition to publicizing time and place of the sale, listed the Registry of Deeds daily sheet number of the land to be sold, which is not presently required by statute. Relying on Napier the court rules that the statutory notice requirements of G. L. c. 60, §79 satisfy the very minimal constitutional guarantees.

Moreover, this court does not believe that it is the proper function of a trial court to strike down this longstanding statute. To do so would affect the titles of thousands of bona fide purchasers who have acquired property at low value tax sales. While it is legally permissible to declare a statutory provision unconstitutional prospectively, see Linkletter v. Walker, 381 U.S. 618, 625 (1965), such a course of action is properly the function of an appellate court.

While this court has previously stated its position (see Stone v. Soucie, Land Court Registration Case No. 4226-S, July 12, 1976, Fenton, J.), and recommended that the "low value" statutory notice of sale requirement clearly warrants legislative reexamination and possible remedial legislation in order to afford owners of such property an opportunity to have either actual notice or meaningful constructive notice of a proposed sale, it rules that in light of existing precedent the present notice of sale requirement of G. L. c. 60, §79 is not unconstitutional as a denial of due process.

3. WHETHER THE FAILURE OF THE DEFENDANT TOWN TO SEND NOTICE OF THE TIME AND PLACE OF THE SALE OF SAID LOTS TO THE PLAINTIFFS PURSUANT TO G. L. C.60, §80A, GRANTS TO THE PLAINTIFFS THE RIGHT TO REDEEM EACH OF SAID LOTS.

The court has already ruled that failure to send a notice of the sale to the plaintiffs does not invalidate the sale; and further that the published notice of the proposed sale was not such insufficient notice of the sale as to invalidate it. The plaintiffs further argue that since they had a "right of redemption or any other interest in the land conveyed" and were not served by registered mail they automatically have the right to redeem these lots.

Plaintiffs' interpretation of §80A would effectively repeal §79, which states that "title taken pursuant to a sale under this section shall be absolute upon the recording of such deed of the treasurer." G. L. c. 60, §80A, "title to land conveyed under §79 or §80, questioning of barred" provides:

"Any person, having a right of redemption or any other interest in the land conveyed or purporting to be conveyed under section seventy-nine or section eighty, upon whom service of the notice of sale provided in said section seventy-nine has been made by registered mail, who, prior to the sale, neither redeems the land nor brings proceedings to enjoin the sale, shall, upon the recording of the deed as required by said section seventy-nine or said section eighty, be forever barred from raising any question concerning the validity of the title conveyed thereby, and a statement contained in the treasurer's deed that such service has been made, naming the persons who were served by registered mail, shall be prima facie evidence thereof."

Pursuant to §80A, if plaintiffs had been served by registered mail and the deed recorded, they would have been barred from raising any question as to the validity of the title. The mere fact that they were not served does not give them the right to redeem in the face of §79. The court rules that plaintiffs have no absolute right to redemption under the provisions of §80A.

4. WHETHER THE PLAINTIFFS CAN ATTACK THE COMMISSIONER'S DETERMINATION OF LOW VALUE AFTER THE PROPERTY HAS BEEN SOLD TO BONA FIDE PURCHASERS FOR VALUE AT PUBLIC AUCTION.

Plaintiffs allege that the low value determination made by the Commissioner [Note 10] was factually inaccurate. In support of their claim, plaintiffs submitted a detailed report from a real estate appraiser concluding that each lot was worth substantially more than the statutory maximum of $2,500.00. [Note 11] This court need not review the report's reliability because it has been held that, after land has been sold, §79 precludes any challenge of the accuracy of the Commissioner's valuation. Bigham v. Commissioner of Corporations and Taxation, 371 Mass. 270 (1976); Johnson v. McMahon, 344 Mass. 348 (1962). Plaintiffs have not alleged that the valuation procedure employed deviated from the statute, and, therefore, the Commissioner's determination is conclusive.

In addition plaintiffs allege that the valuation procedure employed by the Commissioner is unconstitutional.

Before a town may sell land pursuant to the low value procedure of §79, it must first obtain an affidavit from the Commissioner finding, inter alia, that the value of each parcel of land in question does not exceed $2,500.00. Section 79 states that the Commissioner shall make the determination as follows:

"After two years [Note 12] from the taking or purchase by a town of any parcels of land for non-payment of taxes, the commissioner may, and on written application of the town treasurer shall, inquire into the value of such parcels and the validity of tax titles held thereon. As a part of such inquiry the commissioner shall, upon written request therefor by any person in interest, hear such person relative to any matter pertaining to such inquiry. If the commissioner is of opinion that such parcels are of insufficient value to meet the taxes, interest and charges, and all subsequent taxes and assessments thereon, together with the expenses of a foreclosure under section sixty-nine, that none of such parcels exceeds two thousand five hundred dollars in value, and that the facts essential to the validity of the tax titles on such lands have been adequately established, he shall make affidavit of such finding, which shall be recorded in the registry of deeds for the district wherein the land lies."

Plaintiffs challenge the constitutionality of the valuation procedure on two separate grounds. First, they allege that the procedure actually adopted by the Commissioner pursuant to the statute does not provide for a "meaningful inquiry" into the true value of the land. I note here the Supreme Court dictum that regulatory agencies "should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143 (1939). See also Nader v. FCC, 520 F. 2d 182 (DC. Cir. 1975). To elucidate the department's valuation procedure, plaintiffs submitted the affidavit of Lucille Hamburger, an employee of the Department of Corporations and Taxation. She stated that the act of valuation is delegated to the Chief of the Bureau of Property Taxation. He, in turn, normally bases his estimate on information supplied by the town requesting the affidavits except that, when the town's estimate is within $500.00 of the statutory maximum, he will dispatch individuals to personally inspect the land to verify or contradict the estimate. No on-site inspection was made in this case. I find that the present procedure is not clearly arbitrary, since the Department's valuation is based on a figure supplied by municipal assessors who ordinarily do view the property they assess. It is doubtful that it would be feasible for the Department to conduct its own on-site investigation into the worth of every parcel of land it had to value. An agency must be permitted to tailor its procedures to the exigencies of specific cases. Association of Massachusetts Consumers, Inc. v. United States S.E.c., 516 F. 2d 711, 714-15 (DC Cir. 1975). Furthermore, valuations supplied by the Town of Burlington are not necessarily self-serving. Since a town would obviously have more revenue to gain from a higher assessed value, it cannot be said that the valuation under $2,500.00, was colored by bias. I rule that the procedure followed by the Commissioner was not arbitrary.

The second basis for plaintiffs' challenge is the failure of the statute to provide for notice to interested parties that the Commissioner's valuation is about to occur. Though the statute does specifically allow interested persons to intervene and be heard, its failure to require that they be notified may act to deny them that opportunity. This is a major weakness in the statute also warranting legislative reexamination. However, in Bigham v. Commissioner of Corporations and Taxation, 371 Mass. 270 (1976), the Court held that the Commissioner's valuation could be challenged at any time prior to the sale of the land, thus diminishing greatly the importance of giving notice at the time the valuation is actually being made. The valuation itself does not deprive a landowner or any interested person of any property rights. I rule that this procedure is not clearly arbitrary, likewise.

The final procedural defect alleged by plaintiffs is the failure of the town to follow the directive printed at the top of state tax form 470A. The directive states: "Send this notice by registered mail, return receipt requested, at least 14 days before the sale, to any person having a right of redemption or any other interest in any of the parcels to be sold." Plaintiffs argue that the town's noncompliance with this requirement preserves their right to redeem the land. I disagree.

It is not alleged that the Commissioner's directive is a rule promulgated pursuant to G. L. c. 30A, §§1, 2, and thus plaintiffs are incorrect in asserting that it has the effect of law. Furthermore, the Commissioner may not, under the guise of approving a form, expand the statutory duty of either a taxpayer, Assessors of Quincy v. Boston Consolidated Gas Co., 309 Mass. 60 , 71 (1941) or the collecting authority. Chicopee v. Manset Realty Corp., 319 Mass. 434 , 441 (1946). I, therefore, rule that the failure of the town to comply with the notation on form 470A does not affect defendants' title.

For all of the foregoing reasons, including the taxing authorities' legitimate interest in maintaining an effective and expeditious tax collection system and particularly in light of stare decisis in the Commonwealth, I deny the plaintiffs' motion for summary judgment and allow the motion for summary judgment filed by the defendants.

Judgment accordingly.