ROY BOLDUC and LESTER BOLDUC d/b/a BOLDUC'S LUMBER CO., and LIONEL BEAUDOIN & SONS, INC. vs. CITY OF FALL RIVER and HELEN V. FALVEY.

Pursuant to G. L. c. 60 §69, the petitioners, Lionel Beaudoin & Sons, Inc. (Beaudoin) and Roy Bolduc and Lester Bolduc d/b/a Bolduc's Lumber Company (Bolduc) ask this Court to vacate the final decree in Tax Lien Case No. 53020-A entered on June 26, 1979 in favor of the City of Fall River; said decree foreclosed all rights of redemption under the deed given by the Collector of Taxes for said City dated October 6, 1975 and recorded in the Bristol County Registry of Deeds (Fall River District ) [Note 1] Book 1118, Page 556, in a parcel of land located at 706 King Street in Fall River, Bristol County, Massachusetts (the "locus"). Beaudoin was the owner of the locus which was designated as Lot B-8-12 by the Assessors of the City of Fall River (Exhibit No. 13). Bolduc was the holder of two mortgages upon it. (Exhibits Nos. 7 and 8). Lot B-8-12 was taken by the City for the nonpayment of taxes on October 6, 1975. A petition to foreclose all rights of redemption was filed in this Court on March 3, 1977. The petitioners were defaulted for failure to appear or answer, and a final decree was entered on June 26, 1979. The petitions to vacate, severally filed by Beaudoin and Bolduc, were filed on June 20, 1980 within the year specified in G. L. c. 60 §69A.

Beaudoin retains title to Lot B-8-39 which adjoins Lot B-8-12, and as the plaintiff in the Miscellaneous Case, it asks this Court to find that the City's assessment of the Beaudoin property as two separate parcels is illegal and void as it divides a building located on both lots in half.

In support of their petitions to vacate the decree the petitioners assert that the improper assessment of their property caused them to be unaware that a part of their property had been taken. Beaudoin claims that when any of its officers inquired about the taxes owed on the property, he was given an amount that, in fact, only represented the taxes due on one of the two parcels. After paying this amount, it was believed that taxes were no longer owed on any of the corporation's property, because the principals in the family business were unaware that, for tax purposes, their property was treated as two lots. This is given as an explanation for failure to appear and answer in the Tax Lien case. One or both of the Beaudoin brothers also assured Mr. Roy P. Bolduc that the taxes had, or would be, paid.

The City of Fall River answered claiming that the assessment and taking were valid and that the interests of justice would not be served by vacating the decree. The City had already accepted bids on the property, and the high bidder, Helen V. Falvey, has also filed an answer in opposition to the petitioners' claims.

A trial was held at the Land Court on September 19 and 26, 1980 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorpoated herein for the purpose of any appeal. A view was taken, in the presence of counsel, on August 25, 1980.

"There is no hard and fast rule that can be applied universally in determining whether parcels of land are to be assessed separately or together." Lenox v. Oglesby, 311 Mass. 269 , 271 (1942). Although assessors are justified in treating two contiguous lots in single ownership as one parcel for tax purposes, Marlborough v. Poorvu, 305 Mass. 124 , 126 1940); Bemis v. Caldwell, 143 Mass. 299 (1887), there is no requirement that they do so. Nevertheless, "a building and the land upon which it stands constitute a single estate upon which a single and indivisible tax is levied." Friedman v. S. S. Kresge Co., 290 Mass. 114 , 115 (1935). Since it is virtually impossible to assess the worth of a fraction of a building, it would seem clear that, where a building straddles the lot lines, the adjoining lots should be assessed as one.

The difficulty in this case is whether the assessors should have known that by assessing the Beaudoin property as two lots they were dividing a building into two parts. Although it appears that there have always been structures located in the rear of the two lots, it seems clear that they did not take on the appearance of one indivisible building until some time in the early 1970's. (Compare Exhibits Nos. 9 and 12 with Exhibits Nos. 5 and 6). The Beaudoins did not obtain a building permit for the renovation of the structures (see Exhibit No. 15). From the record it also does not appear that the Beaudoins ever filed a list, pursuant to G. L. c. 59 §29, describing the property as one parcel. However, the locus was described in instruments of record as one parcel from the execution of a deed from Lionel Beaudoin to himself and his wife, dated May 26, 1949 and recorded in Book 514, Page 17 (Exhibit No. 3) through a deed from Mr. and Mrs. Beaudoin to the corporation dated May 3, 1963 and recorded in Book 800, Page 21 (Exhibit No. 1), and two mortgages from Lionel Beaudoin & Sons, Inc. to Roy P. Bolduc et al, one dated September 4, 1974 and recorded in Book 1166, Page 992 (Exhibit No. 7), and the other dated December 14, 1976 and recorded in Book 1156, Page 158 (Exhibit No. 8). Granted that the legal instruments do not reflect the state of the buildings on the ground, they were notice to the assessors of the proper legal description of the premises. On the other hand Beaudoin should have been aware that it continuously received two tax bills from the City; it had a remedy if it wished to receive one bill covering the entire premises.

Inasmuch as the Assessors had no knowledge of the existence of the building crossing the line and apparently did not pick this up in making their inspection for assessment purposes, they were justified in treating the lots as the separate entities they had always been in the past. The assessment, therefore, was not invalid.

As to the petitions to vacate, the Court must determine, within its discretion, whether the petitions should be granted in order to accomplish justice. Buscher v. Randolph, 307 Mass. 391 , 393 (1940); Russell v. Foley, 278 Mass. 145 , 148 (1932); G. L. c. 60 §69. Although ordinarily a petition to vacate will not be granted on grounds that could have been raised at the original trial, Lynch v. Boston, 313 Mass. 478 , 481 (1943), it is within the court's discretion to allow the petition. Ryan v. Hickey, 240 Mass. 46 , 48 (1921). The following are the material facts which must be considered in determining whether the Court should exercise its discretion.

The King Street property has been the site of the Beaudoin contracting business since 1951. For many years the company suffered from financial difficulties and had trouble meeting its financial obligations. The assessors' records of the City of Fall River indicate that, prior to the taking in 1976, Lot B-8-12 had been subject to tax takings twice before (Exhibit No. 13), and in each instance the lot had been redeemed. Lot B-8-12 eventually was taken for the nonpayment of 1975 taxes. The 1976 taxes were then added to the tax title account, and in 1977 the petition to foreclose was filed. The 1977 taxes were also added to the account. In July of 1977 Beaudoin paid the 1975 and 1976 taxes. The City then added the 1978 taxes to the account. Beaudoin then paid the taxes due for the year 1977, and the 1979 taxes were added to the account. The 1977 taxes and interest thereon were paid on December 15, 1978 in the total amount of $2,139.62 during the pendency of the tax lien foreclosure proceedings. At the time of the foreclosure decree only the 1978 and 1979 taxes remained unpaid on Lot B-8-12. If the December 1978 payment had been called to the attention of a judge of this Court, the decree of foreclosure would not have entered in June of 1979. However, the matter was not contested, no answers ever were filed, and the Court was left in ignorance.

The petitioners offered to pay the outstanding taxes just prior to the City's sale at public auction but were advised that it was too late. They then attempted to bid on the property at the sale but were outbid by the respondent Helen V. Falvey. Lot B-8-39 was also taken for nonpayment of taxes but was redeemed in May of 1979. The City did give the taxpayer an opportunity to pay after the foreclosure decree but prior to the institution of the auction machinery, but it received no response to its correspondence.

This record shows a determined, if piecemeal and finally unsuccessful, effort by Beaudoin to pay its debts. The corporation's financial situation has now improved, and both Beaudoin and Bolduc have offered to pay all of the outstanding taxes and costs.

Mrs. Falvey, as a result of the auction sale, has paid the purchase price of the premises but she has not as yet received a deed to the premises. If the decree is not vacated, Mrs. Falvey will obtain title to the property, but such title will be unmarketable because of the existence of the building which crosses the lot line. If the petitions to vacate are allowed, the City will return to Mrs. Falvey all sums of money it received from her. The City then will receive from the petitioners payment of all outstanding real estate taxes and costs on both parcels of land. The assessment as of January, 1981 should be of one parcel, a consolidation of Lot B-8-12 with Lot B-8-39.

Taking all of the foregoing into consideration, it would appear that both the petitioners and the respondent Mrs. Falvey will be left in an unfortunate position if the decree is not vacated. As long as the City receives the money due it, the source of payment should not be of concern. Therefore, the Court is of the opinion that this is an appropriate case in which to exercise its discretion and grant the petitions to vacate in order to accomplish substantial justice. However, judgment to this effect will not enter unless the petitioners within thirty days from the date of this decision pay to the Collector of Taxes for the City all amounts due to it for the two Beaudoin parcels together with interest, demand and costs to the date of payment. In computing the amounts due the City any payments made by Mrs. Falvey shall be deemed not to have been made and shall be refunded to her by the City, i.e. the balance due shall be such sum as the City would have been entitled to had the final decree not have entered and the auction not taken place. Upon notice by the City to the Court of receipt of the sums due the final decree in Tax Lien Case No. 53020-A shall be vacated. Should a dispute arise as to the amount of such sum, then the Court shall assign a date for a hearing on such issue only.

The defendant Helen V. Falvey's requests for rulings are denied. The Court has nothing but sympathy for Mrs. Falvey who has lived in an apartment in the two-family house located on Lot B-8-12 and has made many interior improvements therein. She has suffered from the owner's financial problems in living in a building which appears shoddy in comparison with other properties in the neighborhood; although the owner is in the construction business, little has been done to maintain the property to the standards of Mrs. Falvey. The unfinished building on Lot B-8-39 also is an eyesore, but resolution of these questions is without the province of this Court. Despite the Beaudoin shortcomings the Court, in weighing the equities between the owner and the tenant and the owner's attempt to pay the taxes, finds and rules that the scales favor the owner and mortgagee for this one last time.

On all the evidence I find and rule that the assessment of Lots B-8-39 and B-8-12 as separate parcels was not illegal, that Beaudoin made a good faith effort over a period of years to pay the real estate taxes and that its economic position made it difficult to keep the taxes current, that it intended to pay all taxes due in order to forestall the entry of a final decree in Tax Lien Case No. 53020-A, that it assumed, and its officers so informed the mortgagee, that the taxes had been paid, that a substantial tax payment was made while the tax lien case was pending in this Court and was not called to the Court's attention, that Beaudoin attempted to pay the delinquent taxes prior to the sale by the City at auction and was not allowed to do so, that Beaudoin and Bolduc bid at public auction and were outbid by Mrs. Falvey, that title to either lot is unmarketable separately by reason of the building which straddles the property line, that the sale to Mrs. Falvey was restrained by this Court and has not as yet been consummated, that legal title thereto is still in the City of Fall River, that equity and good conscience require that Beaudoin be given an opportunity to redeem the premises as hereinbefore set forth, and that thereupon the petitions to vacate will be allowed. In Miscellaneous Case No. 99256 there is to be judgment for the defendants.

Judgment accordingly.