MISC 102107

June 11, 1981

Nantucket, ss.

Sullivan, J.


On March 4, 1981 William J. Devine and Gary Darman, Trustees of D & D Land Trust, filed with this Court a complaint pursuant to G. L. c. 60 §76 against the Town of Nantucket and Alan R. MacVicar in which the plaintiffs claimed that they were the owners of the equity of redemption in Lots 126A and 127A in said Nantucket and were the persons entitled to redeem the premises. The prayer of the complaint was that they be allowed to redeem on the terms and conditions set by the Court. The Town of Nantucket answered on March 12, 1981 and stated that the above described property was taken by the Town in 1967 for non-payment of taxes and that the title acquired thereby was assigned to Alan R. MacVicar by instrument dated April 14, 1967 and recorded with Nantucket Deeds in Book 130, Page 388. As to other properties referred to in the complaint but not involved in the present contest, the Town claimed that its title became absolute by operation of law. Defendant MacVicar failed to answer seasonably and was defaulted. Subsequently, upon motion the default was removed, and he was permitted to answer late.

On April 14, 1981 a motion for summary judgment by the plaintiffs was heard by the Court and taken under advisement. At this time the plaintiffs' counsel presented a letter from the assessors of the Town of Nantucket reciting that "the involved property is now assessed to William J. Devine and Gary Darman." The Town thereafter did not contest the entry of a judgment in favor of the plaintiffs. The motion for summary judgment was denied on April 17 since the complaint had been brought pursuant to G. L. c. 60 §76 which is within the exclusive jurisdiction of this Court, and accordingly, as provided for in Rule 1, the Massachusetts Rules of Civil Procedure are not applicable.

A trial was held on the question as to whether the plaintiffs were entitled to redeem on May 28, 1981, at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

At the trial counsel for the plaintiffs filed an agreement for judgment made with counsel for defendant MacVicar in which the plaintiffs and said defendant agreed that the plaintiffs might be allowed to redeem as against defendant MacVicar upon the payment to him of the sum of $3,000 and judgment satisfied. Counsel for MacVicar also acknowledged receipt of said monies. However, Exhibit No. 7, a copy of a deed from defendant MacVicar to the plaintiffs dated May 22, 1981 and recorded with said Deeds on such date recites a consideration of less than $100 and does not bear any Massachusetts deed excise stamps.

At the trial Edward T. Angley, an attorney at law with offices at 67 Somerset Street in Plymouth in the County of Plymouth, testified that he was a Land Court examiner and was familiar with the title to the premises in question which appear on the records as Lots 126A and 127A but with the letter designation apparently having been dropped by the assessors at the present time. In his testimony Mr. Angley followed the chain of title to the properties from a deed from Henry R. Coffin et al, Trustees to Jacob McCrellish, dated August 2, 1887 and recorded in Book 71, Page 479 (Exhibit No. 12). [Note 1] The chain of title then indicated a conveyance by McCrellish by deed dated August 14, 1889 and recorded in Book 76, Page 273 to Walter E. Burton (Exhibit No. 14). The subdivision plan of 1887 recorded in Plan Book 1 at Page 10 on which locus is shown was introduced as Exhibit No. 13. Walter E. Burton then conveyed locus to George R. Stimpson by instrument dated December 4, 1894 and recorded in Book 79, Page 316 (Exhibit No. 15).

In 1898 the Town of Nantucket made a taking for the non-payment of real estate taxes of certain plots in the area known as "Surfside", but locus was not included in this taking (Exhibit No. 16). The witness testified that he found nothing further on the records under the name of George R. Stimpson from 1898 to 1980. However, he did locate a purported taking recorded in Book 130, Page 224 made against one John Doe. [Note 2] The examiner testified that the 1967 taking referred to Lots 126A and 127A and recited streets other than those shown on the subdivision plan (Exhibit No. 17). The tax title in question was assigned by the Town of Nantucket acting through its Treasurer, Margaret Roche, by instrument dated April 14, 1967 and recorded in Book 130, Page 388 to defendant MacVicar (Exhibit No. 18). Records of this Court show that MacVicar subsequently brought a petition to foreclose his equity of redemption which was dismissed for lack of prosecution on October 29, 1980.

The witness testified that he had checked all Nantucket takings in Surfside, the records of Vital Statistics for Massachusetts and Rhode Island, and the records of the Probate Court for the Counties of Nantucket, Norfolk, Middlesex and Suffolk. In his research he was able to locate a death certificate for George R. Stimpson who died on June 30, 1938 (Exhibit No. 8), his wife Maria W. Stimpson having predeceased (Exhibit No. 9). No probate proceedings were found for either of them. Also introduced as Exhibit No. 10 was a death certificate for Laura May Stimpson who died on June 22, 1967 and for her husband, George, who died on February 25, 1969 (Exhibit No. 11). The second George Stimpson to die left a will dated December 14, 1958 which now has been allowed by the Norfolk County Probate Court, Norfolk Probate No. 185150 (Exhibit No. 1) in which Mr. Stimpson devised all of his property, whether real, personal or mixed, and wherever located, first to his wife Laura, if she survived him, and if not, to George E. Van Buskirk and Mary E. Van Buskirk, then of 72 Elmwood Avenue in Dedham in the County of Norfolk. As noted above, Laura M. Stimpson predeceased her husband. The will originally was filed with Norfolk Probate Court after the death of the testator, and reportedly nothing was done to notify the devisees. A certified copy of the petition for probate in which the witness requested appointment as administrator with the will annexed (Exhibit No. 19) was allowed by the Probate Court on October 8, 1980. Prior thereto George E. Van Buskirk et ux conveyed locus to William J. Devine et al by deed dated April 16, 1980 and recorded in Book 175, Page 194 (Exhibit No. 2), with the grantees therein subsequently conveying the property to themselves as trustees by deed dated May 21, 1980 and recorded in Book 175, Page 292 (Exhibit No. 4) in which capacity they are plaintiffs in the present case. The declaration of trust under which the plaintiffs hold title was introduced as Exhibit No. 3.

While the state of the title is such that additional evidence would be required to support a petition for confirmation or registration pursuant to the provisions of General Laws, Chapter 185, it would appear that for the purposes of Chapter 60, Section 76 the petitioners have standing to request the right of redemption. The agreement for judgment which they reached with defendant MacVicar resolves the necessity of reimbursing him for any taxes he may have paid as well as for his purported interest in the premises, and the Town of Nantucket has not claimed that additional taxes are due to it.

This case cannot be concluded without comment on the activities of the plaintiffs. This is the sixth case to come before me within the last several days in which the plaintiffs or their associates have allegedly acquired fractional interests in real estate in which there were outstanding interests of record owned by parties whom others had been unable to locate. In most of these instances the original information relative to the title problems and the missing interests has come from an examination of the records of this Court by the plaintiffs. While such records are public and open to inspection by all members of the public, the right of review must not be abused. Instances have arisen when study of registration abstracts for citation by court personnel has been interrupted by requests that the abstracts be furnished to outsiders. The Court wishes to emphasize that priority must be given to its duties before others can use its records for their own enrichment. The Court's work also has been slowed by requests for an unreasonable number of papers at one time. This has led to a general requirement that only a reasonable number of cases, as determined by the Chief Justice, may be examined at any one time so that the work of the Court will not be disrupted.

There is another problem inherent in the present situation. The Court is alert to the necessity of protecting those parties asked to convey their interests in properties involved in Court litigation so that it may be clear that the transactions are free from fraud or over-reaching. In the present case the witness who testified at the trial stated that he was attorney for George E. and Mary E. Van Buskirk. I have accepted his statement without requiring that his clients appear in person to detail the sale of their interest and have assumed that if counsel, a member of the Massachusetts bar, were of the opinion that the conveyance by his clients did not in his judgment reflect their best interests, he would not have supported the entry of a decree granting the redemption rights sought in the present case. In any future such matters, however, the Court may well wish to have the grantors testify so that their age, understanding and capacity can be determined.

Future litigants may also be concerned with issues of champerty, barratry and maintenance.In the present proceeding, however, I find and rule on all the evidence that the plaintiffs have shown sufficient interest to be entitled to redeem the tax title to the two lots in question, Lots 126 and 127 of Section 1, Surfside, but to no others.

Judgment accordingly.


[Note 1] Unless otherwise noted all recording references are to the Nantucket County Registry of Deeds.

[Note 2] The history of Nantucket assessing practices appears in Hardy v. Jaeckle, 371 Mass. 573 (1976). See also Nantucket v. Beinecke, Mass. Adv. Sh. (1979) 2623.