WILLIAM J. DEVINE and GARY DARMAN, as they are TRUSTEES OF D & D LAND TRUST vs. TOWN OF NANTUCKET.

Plaintiffs seek to redeem certain premises described as "Blocks 34, 35, 37, 38, 48, 50 and 53 of Section 1 of the Surf Side Lands" taken in 1898 by the defendant Town of Nantucket for non-payment of real estate taxes. [Note 1]

The defendant town claims that its title to the premises in question is absolute and denies that plaintiffs have a right of redemption.

The case came on for hearing on October 9, 1981. A stenographer was sworn to record and transcribe the testimony in the case. Testimony was given by three witnesses and twenty-seven exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

The Court finds the following facts:

1. Plaintiffs Trustees claim title by virtue of a deed from each individually to themselves as Trustees, dated May 21, 1980 and recorded in Nantucket County Registry of Deeds [Note 2] in Book 175, Page 292 (Exhibit 4).

2. The defendant Town claims title under a taking for non-payment of 1896 real estate taxes against "Geo R. Stimpson". The affidavit recites a fourteen day demand, no payment, an advertisement and posting of sale and eventually a sale to the Town of Nantucket of "Surf-side land, blocks 34-35-37-38-48-50-53 (161 lots)" on November 29, 1898, recorded in Book 81, Page 258.

3. Plaintiffs trace their title from a deed of Henry Coffin et al, Trustees of the "Estate called Surf Side Lands" to Jacob W. McCrellis dated August 2, 1887 and recorded in Book 71, Page 479 (Exhibit 11) and thence through Walter Burton by deed dated August 15, 1889 recorded in Book 76, Page 273 (Exhibit 13) to George R. Stirnpson by deed dated December 4, 1894 recorded in Book 79, Page 316 (Exhibit 14). The last deed recites that George R. Stimpson is of Providence, Rhode Island.

4. A George R. Stimpson who was married to Maria W. (Jones) Stimpson died on June 30, 1938 in Newton, Mass., aged 79 years, 8 months. The informant on the death certificate is listed as being George R. Stimpson of 36 Parsons Street, Newton, Mass., the same address as deceased. The deceased's business was listed as "financial". (Exhibit 7) There appears to have been no probate.

5. Maria W. (Jones) Stimpson died, according to the death certificate filed, on January 20, 1950 (Exhibit 8) with her residence listed as Franklin Street, Wrentham, Mass. She was 90 years, 7 months and 4 days old. The informant was listed as being "Geo R. Stimpson (son)" of the same address. Again, there seems to have been no probate.

6. Laura May Stimpson, nee Adams, died June 22, 1967 in Attleboro, Mass., aged 82 years, 1 month, 18 days according to the death certificate filed as Exhibit 9. She was a resident of 70 Franklin Street, Wrentham, Mass., and recited as being the wife of George R. Stimpson, the informant, also of 70 Franklin Street, Wrentham. No probate was found.

7. George Rapalaya Stimpson died February 25, 1969 at Attleboro, Mass., a resident of 78 Franklin Street, Wrentham, Mass., aged 88 years, a retired poultryman whose widow was Laura May Adams and whose father was George R. Stimpson, Sr. according to the death certificate (Exhibit 10). There was no immediate probate.

8. George Rapalaya Stimpson died testate; his will left all of his estate to his wife Laura M. if she survived him (she did not - see paragraph 6 herein), and if she did not, to George E. Van Buskirk and Mary E. Van Buskirk of Dedham or to the survivor if both did not survive him. The will named J. Ellis Bowen as Executor and was filed with Norfolk Probate Court on April 22, 1970. It was not further probated until 1980 (See paragraph 10 herein).

9. On April 16, 1980 George E. Van Buskirk and Mary E. Van Buskirk gave a deed of the premises to William J. Devine and Gary Darman as tenants in common, recorded in Book 175, Page 194, reciting consideration of 200. (Exhibit 2 herein) The grantees then recorded a declaration of trust, dated May 21, 1980 and recorded in Book 175, Page 288 and on the same date conveyed the premises to themselves as Trustees thereunder. (See paragraph 1 herein)

10. One Edward T. Angley, a land court examiner, examined the title to premises for the plaintiffs and then sought to perfect their title. He represented the Van Buskirks also and was appointed as administrator with the will annexed of George R. Stimpson (Exhibit 16) (See paragraph 7 herein), Norfolk Probate 185150, on October 8, 1980. On January 6, 1981 the Van Buskirks executed a second deed to William J. Devine and Gary Darman as tenants in common for $9300.00 consideration, recorded in Book 182, Page 47 (Exhibit 6) and recited that it was a deed to confirm the earlier deed - (See paragraph 9 herein) - "delivered prior to the consolidation of probate proceedings in the Estate of George R. Stimpson to accurately reflect the consideration tendered."

11. On January 6, 1981 the Van Buskirks executed an affidavit to the effect that they had known George R. Stimpson for almost thirty-five years, that he talked about living in Rhode Island and that his father George R. Stimpson, Sr. was in the hotel business. This was recorded in Book 182, Page 48 (Exhibit 5).

12. The Assessors Valuation List for 1897 shows the premises assessed to George R. Stimpson, Providence, Rhode Island (Exhibit 22); the Valuation List for 1898 shows it assessed to the same George R. Stimpson with a pencilled notation after his name "Sold to town''; the valuation list for 1899 shows no assessment to Stimpson. There would appear to have been and the Court finds that the next assessment was to George E. and Mary E. Van Buskirk with the names Devine Wm. and Darman, Gary written in above, in the year 1980. (Exhibit 26) For fiscal year 1981 the premises were assessed to ''Owners Unknown" (Exhibit 25).

The question to be determined is whether or not the plaintiffs may redeem the tax title of locus taken by the Town of Nantucket in 1896 and sold to the town on November 29, 1898.

The Court answers in the negative.

This tax taking and sale were made in accordance with the provisions of St. 1888, chapter 390 then in effect. After the sale, the town held the title to the property subject to redemption by the owner of the property taken, as governed by the said chapter 390, section 57 which gave the owner two years from the day of taking or sale to redeem, by paying all sums due to either the collector if the town holds the property or to any purchaser at the sale. The two year limit may be extended in certain cases not here pertinent. There was no redemption by the owner prior to the expiration of the two years, November 29, 1900.

The case of Thomas v. Haines, 285 Mass. 90 (1933) citing Rogers v. Nichols, 186 Mass. 440 (1904) holds that a purchaser at a tax sale "took the title subject to the law relating to the redemption of lands from tax sales as it stood at the time of sale." Prior to 1915 "the right of redemption after a tax sale or taking was foreclosed by mere expiration of a certain period of time without notice to the parties." Kelly v. Boston, 348 Mass. 385 (1965) at 388. Thus, in 1898 and up until St. 1915, chapter 237, there was no specific legal action that could be taken for redemption. The only avenue open to a person seeking redemption after the expiration of the two year limit was provided by St. 1888, c. 390, Section 76, which provided that the "Supreme Judicial Court shall have equity powers, if relief is sought within five years from the taking or sale." Later, by St. 1909, chapter 490 II Section 76 concurrent equity jurisdiction was given to the superior court and the statute of limitations for such actions was made six years. This was again changed by St. 1915, Chapter 237, § 15 by limiting the jurisdiction to the superior court only and this remained the law until St. 1935, c. 318 when it was transferred exclusively to the land court where it remains today. General Laws Chapter 60, Section 76. It is only under the provisions of section 76 cited above that an owner whose property has been taken may seek redemption and it is under this section that relief is here sought by the plaintiffs.

The land court had no jurisdiction whatsoever over tax foreclosures or redemptions until the year 1915. By St. 1915, c. 237 the land court was given exclusive jurisdiction to foreclose rights of redemption that up to then had been foreclosed by the expiration of time. Even then, the jurisdiction given to the land court only went to the foreclosure of rights of redemption by "purchasers of title" at a tax sale or a city or town in case of a taking, "after two years from the date of a sale by the collector of taxes or the taking of land for taxes". This said section has with a change in the holding period from two years to six months become the present G. L. c. 60, Section 65. Obviously, this section of the statute could not be used by plaintiffs here as they were neither "purchasers of the title" or a city or town. Rather, for any relief, the petitioners had to rely on an extension of St. 1888, chapter 390, Section 74 which as has been set forth above has now evolved into G. L. c. 60, § 76. The two year limit for redemption was the law in 1898 and remained the law until changed by St. 1925, Chapter 51, wherein the statutory words "within two years after the taking or sale" were replaced with the words "at any time prior to the filing of a petition for foreclosure under section sixty-five". This refers of course to a petition for foreclosure in the Land Court and is the law today.

Plaintiffs in the present case sought out and purchased the interest of the successors in title to the owner of the property taken in 1896. This petition to redeem has been brought over eighty-two years after the sale by the Town. The plaintiffs were not "purchasers at a sale" or a city or town and hence could not seek to foreclose a tax taking under G. L. c. 60, Section 65. They can only proceed under the provisions of the forerunner of G. L. c. 60, Section 76 as set forth on page 7 herein. The original sections of the forerunner of section 76 providing for relief in equity had a statute of limitations first of five years - in 1898 - and later six years. Obviously, the statutory period has long passed for the plaintiffs' predecessor in title, "Geo R. Stimpson" and thus for the plaintiffs.

The Court finds and rules that the statutory period of limitations has passed and that the land court has no jurisdiction over any action of plaintiffs' arising from this tax taking and sale of 1898.

This ruling takes into account plaintiffs' argument that the right to redeem has not automatically disappeared after two years from the taking or sale because of St. 1888, chapter 390, § 66 then in effect which reads in pertinent part as follows:

"Section 66. If no person lawfully entitled redeems, within the time prescribed by law, real estate purchased or taken for and held by a city or town....its collector of taxes...shall, within two years thereafter proceed to sell the same by public auction....; and if, from any cause, such sale shall not be made within two years, as aforesaid, it shall be made by the collector at such time as he deems best or at once upon the service upon him of a written demand of any person interested therein".

No person lawfully entitled herein sought to redeem the locus within two years. The collector did not within two years thereafterproceed to sell the same at public auction. Nor was there any evidence introduced to show any demand, written or otherwise, on the collector for such a sale. The collector, if the sale is not made within the two year period, shall make it "as he deems best" and he never exercised this power.

Section 66 gives great discretion to the collector. In fact, it is hard to imagine a more elastic provision to allow a collector latitude to make such sale. The Court rules that the collector's failure to have a sale within the two years and then his further failure to have a sale without such a sale being demanded of him in writing as called for by Section 66 was not an abuse of his power. Even if it was, the Court questions the right of the plaintiffs in this action to take advantage of it. The Court further rules that there is no substantial or misleading irregularity or error under the doctrine of Pass v. Seekonk, 4 Mass. App. 447 (1976), as contended by the plaintiffs.

Finally, the Court rules against the plaintiffs as a matter of its discretion under the provisions of G. L. c. 60, § 76. The Court takes cognizance of the plaintiffs' argument that the "equities" of the case demand that plaintiffs be allowed to redeem. G. L. c. 60, Section 76 under which this is brought states that the land court "may grant such right of redemption or other relief as justice may require, fixing the terms thereof or may refuse the same." After the lapse of over 82 years from the sale this Court, weighing the equities of the taxpayer and the town, finds that the weight comes down heavily on the side of the town and refuses to allow redemption.

The Court orders that the petition be dismissed.

Judgment accordingly.