Home ELIOT W. BURROWS and MARGUERITE D. CALDWELL vs. BRIAN CONNORS, as Administrator of the Estate of Ann J. Connors and JOSEPH F. FOLEY, JR.

REG 40035

October 26, 1981

Bristol, ss.

Sullivan, J.



Eliot W. Burrows of Swansea, in the County of Bristol, claiming to be the owner of an undivided two-thirds interest in a parcel of vacant land situated in said Swansea, on the northwesterly side of Hailes Hill Road and shown on a plan entitled "Plan of Land in Swansea, Massachusetts, Surveyed for Eliot W. Burrows", dated October 24, 1978 by Seekonk Engineering, Inc. f'iled with the Court (Exhibit No. 1) (the "Plan") and Marguerite D. Caldwell of Costa Serena, California, claiming to be the owner of an undivided one­third interest therein, seek in this proceeding to register their title to the land shown on the Plan. An appearance was filed upon behalf of the heirs of Ann J. Connors, and one of them, Brian A. Connors, originally answered as an heir and as authorized by the other heirs. Subsequently, his motion was allowed to amend the answer by substituting himself as Administrator of the Estate of Ann J. Connors. An answer was also filed by an abutter, Joseph F. Foley, Jr., who alleged that he owned the land shown on the Plan and that the land which the petitioners seek to register is situated elsewhere.

The registration case brought by petitioners Burrows and Caldwell [Note 1] rests on a tax taking by the Town of Swansea and adverse possession. The respondent Connors, as Administrator of the Estate of Ann J. Connors, contends that the tax taking is vulnerable to attack for lack of notice to the assessed party; he further contends that it has never been foreclosed so that Mrs. Connors' estate now is entitled to redeem. To substantiate his position, the Administrator filed a complaint pursuant to G. L. c. 60, §76 against the Inhabitants of the Town of Swansea, Daphne B. Sears as its Treasurer, Catherine M. Kirkman as its Collector of Taxes, as well as against the petitioners in the registration case, and respondent Foley, in which such allegations are made (Miscellaneous Case No. 98412).

The plaintiffs in Miscellaneous Case No. 98412, Brian Connors, Administrator of the estate of Ann J. Connors, and Brian Connors, James B. Connors and Gregory V. Connors, bring their complaint pursuant to General Laws, c. 60, §76 [Note 2] for leave to redeem the real estate taxes on a four acre parcel of land in Swansea, taken by the Collector of Taxes in 1932 and sold to Anthony Perry, Jr. and Mabel F. Perry. The defendants, Eliot W. Burrows and Marguerite D. Caldwell, successors in title by inheritance, claim title to the locus by adverse possession. They are the petitioners in Registration Case No. 40035.

The Inhabitants of the Town of Swansea, its Treasurer and its Collector of Taxes have been joined as parties since the Connors Estate contends that the original tax taking was invalid and that it has not been allowed to redeem.

By amendment to the complaint, the Connors Estate also requested that if it were allowed to redeem, the Court determine that the deed to the defendant, Joseph F. Foley, Jr., from Peter Morse dated April 15, 1976 and recorded in Book 1127, Page 33 (Exhibit No. 7) now constituting a cloud on the title to locus, is of no force and effect so far as locus is concerned. The parties by written agreement filed in the Land Court on November 17, 1980, agreed that the two cases might be consolidated for purposes of trial and pre-trial matters, subject to the order of the Court. The Court ruled that technically the two cases could not be consolidated, but that the cases would be heard together and all evidence introduced might be considered in both cases where relevant. The parties so agreed.

Both the registration and miscellaneous cases were tried on January 29, 1981 and April 8, 1981. A stenographer was appointed to record the testimony, and all exhibits introduced in evidence are incorporated herein by reference for the purpose of any appeal.

On all the evidence, I find and rule as follows:

William Winslow conveyed his homestead farm to Edward S. Earl (Earle) by deed dated January 11, 1856 and duly recorded in C. R. Book 46, Page 14. [Note 3] (abstract s. 4) The conveyance included about 80 acres, "on both sides of the road leading from Stephen S. Swansey to John Earl, Esquire", together with a four acre parcel described as follows:

"Beginning at the northeast corner of said lot at the southwest corner of land of the heirs of Anthony Gardner, thence westerly by said heirs land partly by the wall, till it comes to William Slade's heirs land, thence southerly as the wall runs by a two rod way so called, thence easterly to the highway, thence northerly by the highway to the first bounded, containing nearly four acres more or less."

The Land Court Examiner concluded that the road from Swansey to Earl was now Hailes Hill Road and that the four acre parcel constituted the premises to which the petitioners seek to register title which are shown on the Plan as containing 2.978 acres. The eighty acre parcel is not involved in this case, other than to buttress the argument that title to the four acre piece followed it even if not specifically conveyed.

In conveyances subsequent to that from Winslow to Earl, the small parcel either was not conveyed with the major portion of the farm and was later conveyed separately to the same grantee, or it was completely omitted. The latter was the case when Henry Hope conveyed to Arthur McAndrew, by deed dated November 7, 1881 and recorded in C. R. Book 103, Page 472, the two parcels comprising 80 acres (abstract s. 8). When Mr. McAndrew died in 1908, however, Bristol Probate No. 26423 (abstract s. 9), he devised to his daughter, Ann Jane Connors, "a certain lot of land situated on Hailes Hill or Taunton Road so called on the west side of said road and containing about four acres, formerly owned by Henry Hope." The record is silent as to whether Mrs. Connors paid the real estate taxes ftom 1909 through 1929, but in 1932 the Collector of Taxes for the Town of Swansea sold said land for the non-payment of the 1930 and 1931 taxes to Anthony Perry, Jr. and Mabel F. Perry by instrument dated October 7, 1932 and recorded in Book 395, Page 357 (abstract s. 10). Nothing further was done to foreclose the equity of redemption.

General Laws, c. 60, §76, quoted in footnote 1, gives the Land Court jurisdiction to grant a right of redemption if relief is sought, as here, prior to the filing of a petition to foreclose. However, the section also gives the Land Court discretion to "refuse" relief. In the present case, the Court would be most reluctant to allow the Connors Estate to redeem in view of the length of time since the tax taking was made. However, the Court need not face the issue as to whether its discretion should be exercised in favor of the Connors Estate, for it finds that the Estate has lost any title to the land which it might have had by virtue of the petitioners' adverse possession.

The petitioner Burrows is the son of the second Mrs. Anthony Perry and inherited his interest from his mother who in turn had acquired her husband's two-thirds share. The other petitioner Caldwell inherited by intestacy her sister Marion D. Reilly's one-third interest (abstract s. 16). Ms. Reilly's interest came from the first Mrs. Anthony Perry, Mabel F. Perry, (whose one-half interest was devised one-third to her husband, who already had a one-half interest, and two-thirds to her cousin, Marion D. Reilly). After Mrs. Mabel F. Perry's death, her husband Anthony had an undivided two-thirds interest and her cousin the remaining one-third interest.

The petitioners rest their title on the tax taking by the Town of Swansea and more particularly on adverse possession. As to the latter, I find that Anthony Perry, Jr. was an employee of the Swansea highway department, that in the 1930's, there were three houses between locus and about 1,000 feet from Hortonville Road intersection, that the houses were those of the Perrys (now one removed from locus), that next door where the Burrows lived and Mrs. Reilly's, that he had a truck garden in the front of locus during the late '30's until a few years before his death in November of 1957, that he used some of the produce for himself and his wife and that the rest, together with the vegetables of acquaintances, was either sold or distributed in the town, that in 1950 Montaup Electric Company took a transmission line right of way approximately thirty-five feet in width from Anthony Perry, Jr. and Mabel F. Perry (abstract s. 11), [Note 4] that the taking plan shows a cultivated area adjacent to Hailes Farm Road on the land claimed by the petitioner et al, and ledge and woods in the rear (abstract s. 3a, Exhibit No. 11) that over the years, the petitioner Burrows and his family hiked on the land, at appropriate seasons of the year gathered greens and cut Christmas trees, that small trees were removed from the land and planted for landscaping at the Burrows' new home, that the Burrows' sons hunted thereon as did others, that one Allison Morse placed a "For Sale" sign on locus which Mrs. Burrows removed at the suggestion of the Police Chief, that a real estate broker who was representing respondent Foley's predecessors in title removed her sign after Mrs. Burrows protested, that Mrs. Grace M. Perry and the petitioner Burrows both attempted unsuccessfully to obtain tax bills from the Town, that many years ago the paving of Hailes Hill Road stopped at the Perry house and was only a dirt lane northerly thereof, that Mrs. Burrows was familiar with location as she frequently visited an uncle who lived northerly of the area, that a sharp curve which has now been straightened fixed the location of the property in her mind.

The petitioners' case and that of the Connors Estate, have a common starting point, the determination of the location of the four acre parcel devised to Mrs. Connors by her father, Arthur McAndrew. While the title prior to Mr. McAndrew's death in 1908 has flaws, the lapse of time since the devise is so great that I perceive no error in assuming good title in Ann Connors to the parcel described in the chain to the Winslow farm. The real problem lies in being certain where this parcel should be located on the ground. The location on the ground of the land of the other respondent, Joseph F. Foley, Jr., is also obscure. Mr. Morse, to whom reference has hereinbefore been made, is an assessor in Swansea, a real estate broker and at the time here in question, an employee of the Commonwealth's Department of Revenue. He purchased from Lucy D. Dias et al, by deed dated December 14, 1973 and duly recorded in Book 1092, Page 414 (Exhibit Nos. 8 and 14G) two parcels of land in Swansea. The first is clearly nonlocus; the second is described as follows:

"Beginning at the northeast corner thereof by the corner of land formerly of Dr. Ebenezer Winslow on the road leading from Taunton to Warren; thence by said road SOUTHERLY to the corner of a wall; thence WESTERLY by said wall to a Two Rod Way, so-called; thence NORTHERLY by land formerly of Comfort Lawton and land formerly of Simeon Luther to land formerly of Ebenezer Winslow to a heap of stones on a rock; thence EASTERLY by said Winslow's land to the first mentioned bound, containing about ten acres, more or less."

Both the four acre piece in the Connors' chain and the ten acre parcel described immediately above, bound by a "Two Rod Way" which suggests they are either contiguous or situated in the same neighborhood. Mr. Morse then proceeded to convey to respondent Foley, by deed dated April 8, 1974, and duly recorded in Book 1099 Page 314, (Exhibit No. 6) the northerly portion of the premises he had acquired from Dias. The deed covered what is shown as Lot 22 on Assessors' Plan 16 (Exhibit No. 4). The remainder of this parcel was conveyed by Mr. Morse to his son Peter by a deed dated April 18, 1974 and duly recorded in Book 1100, Page 90 (Exhibit No. 9) and two years later was conveyed by Peter to respondent Foley by deed dated April 15, 1976 and duly recorded in Book 1127, Page 33, (Exhibit No. 7) for the consideration of One Dollar. The Assessors' plan reflects these conveyances and shows lots 22 and 22A as separate parcels. The parcels now are assessed to Foley, and he has received tax bills for them whereas Mr. Burrows and his mother earlier were unsuccessful in their attempts to have the premises assessed to them.

The record is silent as to whether Ann J. Connors ever paid any real estate taxes on locus to the Town of Swansea from her father's death in 1908 to the time of the taking in 1932. The taking was made only for the non-payment of the 1930 and 1931 taxes. Exhibit No. 20 has been described as cash books for the Town of Swansea for the years 1929 to 1932, inclusive, but they appear to the Court to constitute the valuation books. At the rear of each volume is a list of properties assessed to non-residents. In 1929, the Court found no listing for Mrs. Connors, but in 1930 she is listed. Her address is shown as Lonsdale, Rhode Island, and her property is described as "Wood Lot near A. Perry, H. Hill R.", and its area is described as four acres with a valuation of $75 given. The following year, 1931, Ann Connors again appears as the owner of land on Hailes Hill Road, but in 1932 there appears next to her name and address a pencil note "sold Anthony Perry."

The collector sold the premises to Anthony Perry et ux under whom the petitioners claim. The equity of redemption of AnnConnors was never foreclosed by Court proceedings pursuant to G. L. c. 60, §65, [Note 5] nor by administrative procedure available for land of low value, G. L. c. 60, §79, so at least since 1937 it would have been inappropriate for the locus to be assessed to the Perrys or those claiming under them. Such an assessment would first require a judicial determination as to acquisition of title by adverse possession. This is so because historically the tax statutes permitted assessment to the person appearing of record to be the owner under a tax deed not invalid on its face. However, the statute was revised in 1936, and the Supreme Judicial Court has held that the changes made by St. 1936, c. 92 and St. 1939, c. 175 made it impossible after 1936 to tax real estate to the tax title holder. Lowell v. Marden and Murphy, Inc., 321 Mass. 597 , 600 (1947). It is understandable then why the town officials failed to assess the locus to the petitioners.

The petitioners have the burden of establishing their title to the locus, whether by grant or by prescription. Wood v. Wilson, 256 Mass. 340 (1926). Should they fail to do so, title cannot be registered in either respondent, who, in turn, would have to bring his own petition for registration. Hopkins v. Holcombe, 308 Mass. 54 , 56-57 (1941). Foss v. Atkins, 201 Mass. 158 (1909). On all the evidence, however, I find and rule that the petitioners have borne their burden.

I have outlined above the findings as to use and occupation of the premises which the evidence warrants. It is true that it is difficult to prove title by adverse possession to so-called wild lands. Cowden v. Cutting, 339 Mass. 164 (1959), but the final determination as to title must be made in light of the nature of the premises and use made of it. While this is a borderline case, the following facts are sufficient for a finding that the petitioners have borne their burden: entry on the land under color of right given by the tax deed (see Dow v. Dow, 243 Mass. 587 (1923), Norton v. West, Mass. App. Ct. (1979) [Note 6]) maintenance of a garden thereon, the taking of an easement by the utility company from the Perrys, confirmation of cultivation on the locus from the taking plan, removal of the Morse "For Sale" sign after consultation with the police and by a real estate broker of an other sign on locus after a protest by Mr. Burrows' wife, removal of small shrubs and transplanting of them on the Burrows' land and cutting of Christmas greens and hunting over a period of approximately forty years. Granted that while each activity did not continue for the entire period and that some of them were sporadic only, the test as to acquisition of title by adverse possession has been met. The standard, as the Appeals Court outlined in Shaw v. Solari, Mass. App. Ct. (1979), [Note 7] requires possession to be actual, and open, notorious and adverse for a period of twenty years, and assertedas a claim of right. A review of the use made of the premises in light of the nature of the property leads to a conclusion that the petitioners are entitled to the entry of a decree of registration subject to the easement taken by Montaup Electric Company by deed dated July 24, 1950 and duly recorded in Book 524, Page 71, (abstract s. 11) and to such other matters as appear in the abstract and are not in issue here.

Regarding the Connors' claim, apart from the issue of adverse possession, nearly fifty years have elapsed since the tax sale was held. The Court is of the opinion that if the plaintiffs, or those under whom they claimed, wished to attack the taking, it should have been done seasonably. There is no showing that Ann J. Connors or anyone claiming under her ever attempted, until very recently, to pay the taxes due to the town. It appears probable that the Depression led to the decision not to continue paying the taxes. Indeed the only contact which the Connors family had with the land appears to have been Sunday afternoon drives by the locus, with perhaps a walk across the land by family members. The long delay since the taking in 1932, has led to the paucity of evidence as to the mechanics of the assessment, the mailing of tax bills, the statutory demand, the giving of notice and the conduct of the sale. There may be an inference from all that appears here that the property was placed on the tax rolls to give a neighbor an opportunity to buy it, but there is a presumption that public officials act regularly. In any case, a taxpayer has some duty to inquire into the status of his account if he receives no bills and cannot expect to be allowed to redeem after such a long lapse of time. Tax bills are issued pursuant to G. L. c. 60, §3, and this section of the General Laws states in part, that "An omission to send a notice under this section shall not affect the validity either of a tax or of the proceedings for its collection." See: City of Boston v. William J. DuWors, 340 Mass. 402 (1960). The fact that the Connors family no longer resided in Massachusetts would indicate responsibility on Mrs. Connors' part to apprise the Swansea officials of her address since the assessors and collector of taxes may well not have had the facilities to ascertain Mrs. Connors' address or indeed any duty to do so. The difficulty of tracing her appears from the evidence.

At the trial, Margaret E. Smith, a daughter of Ann J. Connors, testified that Ann moved fron Swansea to Lonsdale, Rhode Island, in 1905. Subsequently, in the 1930's, the family moved to Central Falls and later to Providence. Mrs. Smith currently resides in Cumberland, Rhode Island. This relocation in Rhode Island may well have posed problems for the Swansea town officials in tracing Mrs. Connors. Therefore, on all the evidence, I find and rule that the petitioners have established title by adverse possession to the locus, but that even if I am wrong in my conclusion, justice does not require that the plaintiffs in Miscellaneous Case No. 98442 be allowed the right to redeem.

The plaintiffs in Miscellaneous Case No. 98442 and also as respondents in Registration Case No. 40035, have filed several requests for rulings of law in which attention is drawn to G. L. c. 60, §45 which until its amendment in 1973, provided that the holder of a tax title had a right to possession after the expiration of certain stated periods of time. Originally, the right to possession was given after the expiration of two years and, more recently, six months from the sale or taking, the time span required to elapse before a petition to foreclose in this Court may be filed pursuant to the provisions of G. L. c. 60, §65. It may well be that in an appropriate case, possession taken by a tax title holder prior to the 1973 amendment [Note 8] may be deemed to be pursuant to his statutory right. It seems clear, however, from the evidence that the Perrys and those claiming under them did not appreciate the nature of the title conveyed by the tax deed, but assumed that it conveyed the fee to them. For purposes of the claim of right required as one element of adverse possession, it does not matter that the claim is mistaken. Boutin v. Perrault, 343 Mass. 329 (1961). The activities which the petitioners [Note 9] pursued on the locus were done under claim of right as owners, not merely as holders of a tax title. Indeed, the petition to register which defendants Burrows and Caldwell filed can be construed as encompassing a petition to foreclose the equity of redemption as well as that to register title by determining the location on the ground of locus and resolving other title difficulties. It boggles the mind to assume, as the plaintiffs would have us do, that for forty-nine years those in the Perry chain were not in possession under their independent claim of ownership but merely as tax title holders.

So far as the respondent's Foley claim is concerned, I am unable, on the evidence before me, to locate on the ground the land in the Dias chain of title in the location shown on the Assessors' plan. Moreover, in reviewing Exhibit 20, submitted by counsel as cash books for 1929 through 1932 inclusive, but which appear to the Court to be the valuation books, no premises which could be locus were shown as assessed to respondent Foley's predecessors.

As to the requests for rulings of law filed by the Connors Estate, the Court grants Nos. 4, 7, 8, 9, 11, and 14 and denies Nos. 1 to 3, 5, 6, 10, 12 and 13.

A judgment is to be entered dismissing Miscellaneous Case No. 98412. A decree registering the title of the petitioners may be entered in Registration Case No. 40035 subject to said utility easement and to such other matters as may appear in the abstract and are not in issue here.

Judgment accordingly.


[Note 1] The petitioners in the registration case will hereafter be referred to as "the petitioners" whereas the plaintiffs in the tax redemption case generally will be called "the Connors Estate".

[Note 2] In addition to its jurisdiction to allow a party to redeem under section sixty-eight, the Land Court shall have jurisdiction as to redemption in all cases of taking or sale of land for non-payment of taxes if relief is sought before the filing of a petition under section sixty-five for foreclosure of the right of redemption, and may grant such right of redemption or other relief as justice may require, fixing the terms therefore, or may refuse the same.

[Note 3] Unless the context otherwise requires, all recording references are to Bristol (Fall River District) Registry of Deeds.

[Note 4] The easement was approximately one hundred fifty (150) feet wide in its entirety and approximately thirty-five feet of this was on locus.

[Note 5] This Court frequently considers a petition to register title to land as encompassing a proceeding under Chapter 60.

[Note 6] Mass. App. Ct. Adv. Sh. (1979) 503.

[Note 7] Mass. App. Ct. Adv. Sh. (1979) 1551, 1557.

[Note 8] St. 1973, c. 1215, §4 amended section 45 to provide that "No sale hereafter made shall give to the purchaser any right to possession of the land until the right of redemption is foreclosed..."

[Note 9] There was no evidence that Ms. Caldwell and her predecessors directly participated in the activities which the Court has found constitute adverse possession, but the Court has treated the actions of Mr. Perry and Mr. Burrows, his mother, his wife and his sons since the death of his stepmother as being for the benefit of the co-tenant as well.