MISC 105079

December 3, 1982

Plymouth, ss.




This litigation was commenced by a petition brought by Gerald P. Kelleher in Miscellaneous Case No. 103521 to establish title to a certain parcel of land situated on Crescent Avenue in the City of Brockton, County of Plymouth, pursuant to the provisions of General Laws Chapter 60, Section 80B. The defendant, Geraldine Crimmins Walker, answered claiming title adverse to the title of the plaintiff Kelleher. The Court therefore ordered that the defendant bring an action to try such adverse claim within forty-five days from the date of the order. The defendant Walker did bring such an action which is numbered Miscellaneous Case No. 105079. For purposes of clarity, she will be referred to in this decision as Mrs. Walker, and Gerald P. Kelleher as Mr. Kelleher. The petition to try title brought by Mrs. Walker alleged that the City of Brockton had incorrectly assessed the property, that no notice was given to her predecessors in title of the taking by said City for non-payment of real estate taxes, or, that alternatively, improper notice was given to her predecessors in title. She claimed that she had good title to the property and that the tax taking was invalid, and requested the Court to so determine.

A trial was held at the Land Court on November 8, 1982 at which a stenographer was appointed to record and transcribe the testimony, but in fact, the parties called no witnesses. The only evidence introduced was documentary, with counsel stipulating that 10 documents identified in the stipulation and attached thereto might be admitted in evidence at the trial. In accordance with such stipulation, they were so admitted and may be considered Exhibits No. 1 to 10 inclusive by agreement. There also was admitted by agreement, three pages of the low value affidavit made by the Commissioner of Corporations and Taxation, dated June 21, 1935 and recorded with Plymouth Deeds Book 1690, Page 495. Said affidavit is Exhibit No. 11. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

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

1. By deed dated February 6, 1905 and recorded with Plymouth Deeds Book 906, Page 142, (Exhibit No. 1) Eugene J. McNamara conveyed to William Crimmins four lots of land numbered 10-13 inclusive on a recorded plan and comprising 29,389 square feet. Locus consists of a portion of said land containing 5,440 square feet.

2. William Crimmins died testate on November 15, 1922, Plymouth Probate No. 31229, leaving a widow, Mary E. Crimmins, four sons, William J. Crimmins, Daniel A. Crimmins, Thomas H. Crimmins and Charles J. Crimmins, and a daughter, Catherine M. Crimmins. (Exhibit No. 2). By his will, Mr. Crimmins provided for a trust with the income (or principal in the discretion of the trustees) to be used for the maintenance, comfort, education and support of his wife and children, including at the time of his death and on the death of his wife, the remainder to be divided equally among the children living at the termination of the trust, with the children of any deceased children to take their parent's share.

3. No trustee was ever appointed to execute the trust provisions.

4. The assessors for the City of Brockton assessed the property to Mary E. Crimmins, et al (in trust) and the taxes thereon remaining unpaid, the Collector of Taxes for the City of Brockton sold the property at public auction to Grace O. Johnson. Johnson having failed to pay the sum offered by her at the sale, the Collector conveyed the locus to the City of Brockton by deed dated September 8, 1932 and duly recorded on September 16, 1932 in Book 1638, Page 175. The tax deed to said City recited a demand on Mary E. Crimmins, et al (in trust), that the same were not paid, that fourteen days after the demand, with the taxes still unpaid, the property was advertised for sale by publishing in the Brockton Enterprise and by posting in the City Hall corridor.

5. By instrument dated June 21, 1935, Henry F. Long, the Commissioner of Corporations and Taxation, made affidavit that certain lands taken by the City of Brockton for non-payment of real estate taxes were of insufficient value to meet the taxes, interest and charges and subsequent taxes and assessments thereon, together with the expense of a foreclosure. The affidavit included the name of Mary Crimmins, et al, as the name of the person whose property was sold and conveyed to the City, the address of the property was 5 Crescent Avenue, with the correct date and title reference for the deed. The affidavit gives the present value of the land as $175.00 (Exhibit No. 11).

6. Pursuant to the low value affidavit and in accordance with the provisions of Chapter 60, Sections 79 and 80, the Treasurer of said City offered for sale at public auction the land specified in the affidavit, the sale was adjourned and again no person appearing and bidding for said land, the Treasurer conveyed to the City our locus by deed dated September 5, 1935 and recorded in Book 1695, Page 157 (Exhibit No. 4). A decree of this Court was entered in Miscellaneous Case No. 14761, Perrotta v. Crimmins, on April 1, 1952 in which William J. Crimmins, et al were barred from enforcing any claims adverse to the petitioner therein under said deed to the City and affecting title to other land of Crimmins which had been conveyed by the City to Perotta.

7. The City of Brockton subsequently conveyed the property to Mr. Kelleher by deed dated November 1, 1966 and recorded in Book 3334, Page 207.

8. Mary E. Crimmins is now dead although there was no evidence introduced as to the date of her death. The children of Mary E. Crimmins and William Crimmins are also now dead. At the time of the commencement of the proceedings pursuant to Chapter 60, Section 80B, only Helen E. Crimmins, the widow of William J. Crimmins, and Mrs. Walker, the only child of William J. and Mary E. Crimmins, were alive.

The present cases arise under the low value tax foreclosure procedure authorized by General Laws Chapter 60, Sections 79, 80 and 80B. The Supreme Judicial Court recently held that the procedure set forth in the Chapter 60 for the foreclosure of the equity of redemption for land of low value satisfies the requirements of the due process clause of the Fourteenth Amendment of the United States Constitution and Article 10 of the Massachusetts Declaration of Rights. Guaranty Mortgage Corporation v. Burlington, 385 Mass. 411 (1982). See also Johnson v. McMahon, 344 Mass. 348 (1962) and Napier v. Springfield, 304 Mass. 174 (1939). The plaintiff in the present case attacks not the low value procedure, per se, but alleges that the assessment of the property was improper and no valid notice of the taking was given to her predecessors. The principal thrust of Mrs. Walker's argument appears to be that the property was assessed to Mary E. Crimmins, et al, (in trust) and that the trust provisions set forth in the will of William Crimmins (Exhibit No. 5) were never implemented. There is no obligation on the municipality to determine the validity or the devolution of title if a trust which is made in a will is not established. There certainly can be no requirement for assessment purposes that the City petition the Probate Court for instructions as to the person who is the owner of the property on January 1 of the tax year in question. At the time in question and now, the law provides that "taxes on real estate shall be assessed, in the town where it lies, to the person who is the owner on January 1, and the person appearing of record, in the records of the County, or of the District, if such County is divided into Districts, where the estate lies, as owner on January 1, even though deceased, shall be held to be the true owner thereof." By G.L. c. 59, §11, Milton v. Ladd, 348 Mass. 762 (1965). Indeed at the time in question the assessment to the heirs or devisees of a deceased person was permissible under the provisions of G. L. c. 59, §11, unless the names of the parties who were such heirs and devisees were made known to the assessors. See Franklin v. Metcalfe, 307 Mass. 386 (1940). In the present case it appears that Mary E. Crimmins and others were both the named trustees in the will, and the beneficiaries of the trust, and the assessment for all that appears in this case was clearly in accordance with the statutes. In addition, Mrs. Walker also claims that no notice of the taking was given to her predecessors in title. So far as such notice is concerned, the tax deed recites that demand was made; it is regular on its face and no attack now lies. Mrs. Walker offers no evidence to support her allegation, and the Treasurer's deed to the City of Brockton recites such notice by publication and posting. There was provision in c. 60, §80 that when, as here, the person to whom the land is sold does not pay the Treasurer the sum bid within ten days, the sale to the third party is void and the town shall be deemed to be the purchaser of the land. Upon the recording of the deed from the Treasurer to the City, title is absolute. This recording occurred in the present case almost fifty years ago, in 1935. (Exhibit No. 4). Thereafter, the City in 1966 (Exhibit No. 6) sold the property to Mr. Kelleher. Improvements have been made on the property described in the deed. As Justice Nolan said in the Guaranty case, "Finally, and perhaps most importantly," Mr. Kelleher is a "good faith purchaser[s] and it would be inequitable to disturb [his] title." Mrs. Walker receives no support from West v. Selectmen of Yarmouth, 345 Mass. 547 (1963) because in that case the title had not been sold to a good faith purchaser.

Judgment accordingly.