TLC 51903

February 25, 1981

Plymouth, ss.

Sullivan, J.


Arthur C. Schwartz, Trustee of the A.C.S. Family Trust, seeks to have this Court vacate a decree entered on September 23, 1980 foreclosing all rights of redemption under the deed given by the Collector of Taxes for the Town of Hull in the County of Plymouth, dated April 28, 1975 and duly recorded in Book 4063, Pages 591 and 592. Hearings were held at the Land Court on November 5, 1980 and November 20, 1980. At the latter hearing it was agreed that the parties would attempt to resolve their dispute as to the amount necessary for redemption and that thereupon the Court would decide whether to exercise its discretion and vacate the decree pursuant to the provisions of General Laws, c. 60 §69A.

I find the following facts:

1. A petition was filed by the Town of Hull with this Court to foreclose said rights of redemption on March 19, 1976.

2. Pursuant to the provisions of G. L. c. 60 §66, Robin Lederman was appointed an examiner to determine the persons who might be interested. The examiner's report was filed on February 10, 1977, and the Court subsequently gave notice to the parties named therein. These included Joseph A. and Betty J. Savino, mortgagees in possession, First National Bank of Boston, Liberty Bank and Trust Company, Winifred H. Kelley, Albert Fennessey and George Frost. The petitioner claims that he also is an interested person by reason of an assignment to him made by said Joseph A. and Betty J. Savino.

3. A citation issued and was sent to all parties, and it also was published in the Hull-Nantasket Times. Subsequently, special notice, returnable on August 25, 1980, was served on the Savinos by deputy sheriff. No one having appeared in the case, a motion for general default was allowed on September 9, 1980 and a decree of foreclosure entered on September 23.

4. The title examination shows that on May 7, 1976 after the filing of the Town's petition an entry was made on behalf of Joseph A. Savino and Betty J. Savino, mortgagees, to take possession of said premises for the purpose of foreclosing the same.

5. There is no record in the Registry of Deeds of any mortgage assignment made by Joseph A. Savino et al to the petitioner; however, the petitioner has furnished the Court with copies of instruments relating to the petitioner's purchase from the Savinos of an assignment of their note and mortgage. The materials clearly indicate that there were unpaid real estate taxes, and the petitioner therefore had actual notice of this. A dispute apparently arose between the Savinos and the petitioner relative to the provisions of their transaction, and the assignment was not filed in the Registry of Deeds prior to the entry of the decree of foreclosure by this Court. No notice was given to the petitioner by the Court since the records failed to reveal his interest in the premises. It is still unclear to the Court what the present status is of Mr. Schwartz's interest in the premises.

6. In 1978 the petitioner filed a petition for variance with the Board of Appeals of the Town of Hull to permit the premises to be used for a social club and has appealed from the denial thereof to the Superior Court. It has been the practice of said Board of Appeals not to require proof of any petitioner's record interest in premises in order to establish the standing of any applicant.

7. The tax bills for real estate taxes assessed as of January 1, 1978 and January 1, 1979 gave as the assessed owners Arthur Fennessey and George Frost, care of Arthur C. Schwartz, (the address added in ink for the earlier year). One of such real estate tax bills gives the assessed owner as of January 1, 1978 as Arthur C. and Faith S. Schwartz. Personal tax bills for these years also reflect the interest of Mr. Schwartz.

8. On January 25, 1979 the Chairman of the Hull Board of Assessors wrote the petitioner that the Board agreed to abate $21,000 for fiscal year 1979 on "your property located at 767 Nantasket Avenue." The great blizzard of February 1978 heavily damaged properties in Hull, and this appears to be reflected in the abatement.

9. The petitioner has taken the position that it was incumbent upon the Town of Hull to notify the Land Court of his interest in the premises since the Town was aware of his involvement with the property in question.

10. The parties have agreed that the amount due the Town of Hull for the two parcels of land involved as of December 15, 1980 was $25,257.67 plus court costs and legal expenses.

11. The petitioner alleges that he has a buyer who is ready, willing and able to purchase the properties if the decree of foreclosure is revoked, and a minister of the church which seeks to acquire title to the premises has appeared in Court to confirm this allegation. The ability of the church to purchase the property is contingent upon consummation of a mortgage loan to be made to it. The Town, however, opposes any vacation of the decree since locus is adjacent to a playground, and safety of the youngsters is a concern.

The petition to vacate focuses on the petitioner's lack of knowledge of the pendency of these proceedings. In fact the filing of the Town's petition in this Court preceded the assignment to the petitioner. I assume that notice of the filing of such petition was on record. This constitutes constructive notice to all the world even if a party fails to avail himself of the opportunity of knowledge by not examining the records at the Registry of Deeds.

At the time the petition to foreclose the rights of redemption was filed and the Land Court examiner's report was made, there was nothing in the registry records to apprise the Court of the petitioner's interest in the premises. He, however, was in a position to obtain from the records at the Registry notice that the Town was seeking permission to foreclose the taxpayer's equity of redemption. It is true that the municipality may assess taxes to one whose interest does not appear of record but whom it has reason to believe is the owner of the property. Boston v. Quincy Market Cold Storage and Warehouse Co., 312 Mass. 638 (1942). This is not to say it has to do so. At any rate no question has been raised as to the assessment of the properties which appears to have been in accordance with the statutory scheme which provides in G. L. c. 59 §11 for an assessment of taxes on real estate to "the person who is the owner on January first, and the person appearing of record, in the records of the county ... where the estate lies, as owner on January first, even though deceased, shall be held to be the true owner thereof." The statute further provides for assessment to the mortgagee after he takes possession. See Assessors of Boston v. John Hancock Mutual Life Co., 323 Mass. 242 (1948). There are circumstances also under which the owner may still be entitled to an exemption even though there is a mortgagee in possession. Assessors of Boston v. Jakes, 341 Mass. 136 (1960). In the present case the petitioner has no interest of record in the premises, and indeed it is unclear what the present status of the assignment to him is. It is true, of course, that the Town is charged with notice of the interest of the Savinos as mortgagees in possession and might well have assessed them but it had no obligation to assess the premises to the petitioner despite its non-record knowledge of his interest. See the John Hancock and Quincy Market cases, supra. Nevertheless, it is apparent that both the Assessors and the Tax Collector were aware of the petitioner's interest in the premises. This Court certainly will not require a town to notify the Court of every person who claims an interest in the property but who has no documentation to support his interest in a pending tax title foreclosure. However, where no rights of third parties have intervened, equity suggests that under the peculiar circumstances present in this case the petitioner should be afforded an opportunity to redeem. Accordingly if the petitioner pays, or causes to be paid, to the Town of Hull within sixty (60) days from the date hereof all sums due to it to redeem the tax title, including taxes, interest, court costs and counsel fees, the petition to vacate will be allowed and the decree vacated. Otherwise the petition to vacate is to be dismissed.

Judgment accordingly.