MISC 91910

July 27, 1982

Plymouth, ss.



Plaintiff brings this action pursuant to G. L. c. 231A seeking a declaration of her rights in land in Kingston, Massachusetts that was taken for the nonpayment of taxes in 1935. The property is described as Lots 24, 25, 34, 35, 36, 37, 38 and 39 of Block 14 and Lot 45C of Block 11 of the Kingston Assessor's Maps.

Lot 25 was not assessed to Marks Braunecker at the time of the disputed tax taking and the parties have so stipulated. No further consideration will thus be given to Lot 25. Lots 37 and 38, Block 14 and Lot 45C, Block 11 were not conveyed to John J. Dixon, Jr. (Exhibit 27). Apparently, these lots were conveyed to someone other than Dixon (See Land Court Case 39648 in which John G.DiCroce, et al seeks to register title to Lots 37 and 38). Thus, the action as to these four lots, 25, 37, 38 and 45C, is dismissed and only Lots 24, 34, 35, 36 and 39 are before the Court for consideration.

Defendants George W. Dixon, Charles F. Dixon, Marion T. Lundfelt, Robert E. Dixon, Eugene Dixon, Helen Connors and Claire Boyce are the heirs of John J. Dixon, Jr., who purchased the lots in question from the Town of Kingston by deed dated February 14, 1956, recorded in Book 2482, Page 93 (See Exhibit 27). The defendants by their answer claim title to these lots and in the event the tax takings by the town were invalid, claim damages from the plaintiff for all sums expended by them including interest, charges, intervening and subsequent taxes and assessments paid by John G. Dixon, Jr. or his heirs toward their purchase and possession of said land.

Trial was held on November 19, 1981. A stenographer was sworn to record and transcribe the testimony in the case. Three witnesses testified and sixty-one exhibits were admitted into evidence and are incorporated herein for the purpose of any appeal. Exhibit No. 1 is a stipulation of facts signed by plaintiff's and defendants' counsel. Defendants submitted a brief on January 29, 1982 andplaintiff likewise submitted a brief on February 1, 1982.

Based on all the evidence the Court finds the following facts:

1. Marks F. Braunecker was a real estate dealer who resided at 154 Court Street, Plymouth, Massachusetts. He bought land and often developed it, constructing buildings and roads. Much of his land was woodlands. He had three children, William T. Braunecker, Mary Braunecker and plaintiff , Winifred B. Hilde.

2. The parties are in agreement that on April 1, 1932 Marks F. Braunecker of Plymouth was the owner and was assessed by the Town of Kingston as owner of Lots 24, 34, 35, 36, and 39 of Block 14 (Exhibit 41). Taxes on these lots were subsequently paid by Marks F. Braunecker.

3. By deed dated October 20, 1932 and recorded in Book 1636, Page 173, Herbert W. Bartlett, Collector of Taxes for the Town of Plymouth, conveyed Lot 26, Oak Ridge, Plymouth, Massachusetts to plaintiff Winifred B. Hilde. This lot not in issue in this suit, had been taken previously for nonpayment of taxes due from plaintiff's father, Marks F. Braunecker.

4. Seven days later, on October 27, 1932, Marks F. Braunecker died still a resident of 154 Court Street, Plymouth, Massachusetts. His daughter Mary lived there also and continued to live there until 1943 or 1944. His son, William, lived in New York city, and his daughter Winifred B. Hilde, the plaintiff herein, resided in Minneapolis, Minnesota.

5. On December 5, 1932, William T. Braunecker was appointed administrator of the estate of his father Marks F. Braunecker. On this same date, William T. Braunecker, being an out of state resident, appointed his sister Mary Braunecker as his agent and gave her address as Plymouth, Massachusetts.

6. On December 24, 1932, William T. Braunecker gave notice of his appointment as Administrator and called upon:

"All persons having demands upon the estate of said deceased are required to exhibit the same; and all persons indebted to said estate are called upon to make payment to Wm. T. Braunecker, c/o Miss Mary Braunecker, Plymouth, Mass." (Exhibit 8)

7. On April 1, 1933 the valuation list (Exhibit 42) for the Town of Kingston showed that Marks F. Braunecker was the owner of the lots which are the subject of this litigation and he was assessed for them. Demand for these taxes was made on Marks F. Braunecker, Plymouth, Massachusetts according to the testimony of George W. Cushman, the town clerk, treasurer and tax collector in 1933. Mr. Cushman who still holds these posts today further testified that the demand was not returned or he would have noted it.

8. Dated June 1, 1933, an inventory of the estate of Marks F. Braunecker was prepared and submitted to the Probate Court by William T. Braunecker, administrator. This inventory included the land which is the subject of this action, valued at $3,675.00. The other assets of the estate were valued at $3,211.00.

9. On October 18, 1933, Charles Moning of Plymouth brought an action in the Plymouth Probate Court against the estate of Marks F. Braunecker representing that on September 3, 1932 he and the late Marks F. Braunecker had signed a joint and several note payable to the order of the Plymouth National Bank on which there was $9,500.00 present balance due.

10. On November 10, 1933 an appearance in this action was filed for William T. Braunecker, Winifred B. Hilde and Mary Braunecker by Katzman and Vahey, Attorneys at Law.

11. On November 27, 1933, on the petition of said Charles Moning, the Probate Court for the County of Plymouth issued an attachment in the amount of $12,000 against the estate of Marks F. Braunecker.

12. On April 1, 1934 the valuation Book for the Town of Kingston listed "Marks F. Braunecker/heirs of, Plymouth" as the owner of these lots and assessed him for the taxes due.

13. On October 2, 1934 George Cushman, Collector of Taxes for the Town of Kingston, issued a demand on said Marks F. Braunecker for the payment of the unpaid 1933 taxes. This demand was not returned according to testimony of the said George Cushman.

14. On January 1, 1935, [Note 1] the valuation Book for the Town of Kingston once again listed "Marks F. Braunecker/heirs of" as the owner of these lots and he was duly assessed.

15. The Town of Kingston by separate instruments of taking for each lot, dated August 30, 1935 took Lots 24, 34, 35, 36, and 39 of Block 14 on Kingston Assessors plan, for the Town after demand was made on October 2, 1934 and after advertising the sale of the same at public auction in the Old Colony Memorial Newspaper and posting at both Kingston and Plymouth Post Offices and Town Halls there being no other bidders. (Exhibit 16)

16. The Town of Kingston did not foreclose the tax titles in the Land Court but rather petitioned the Commonwealth Department of Corporations and Taxation under the "land of low value" procedure set forth in G. L. c. 60, §79. (Exhibit 17)

17. Pursuant to the affidavit from the tax commissioner of the Commonwealth, the Treasurer, George W. Cushman, advertized the parcels for sale and at an adjurned sale on February 23, 1939 purchased the parcels for the Town of Kingston. (Exhibit 17 and 18)

18. On November 30, 1938 and recorded in Book 1759, Page 23, an affidavit of low value was filed by Henry F. Long, Commissioner of Corporations and Taxation on each of the parcels taken from Marks F. Braunecker for nonpayment of taxes. (Exhibit 17).

19. By deeds dated April 20, 1939 and recorded in Book 1766, Pages 456, 457, 458 and 459, George W. Cushman, Treasurer of the Town of Kingston, conveyed lots 24, 34, 35, 36, and 39 on Block 14 (See 15 above) to the Town of Kingston (Exhibit 18)

20. On December 12, 1947, plaintiff Winifred B. Hilde filed a petition to administer the remainder of her father's estate as her brother William disappeared sometime during the late 1930's and her sister Mary died in 1947. (Exhibits 19, 20 and 21). Theinventory as filed listed no real estate but only personalty of $89.64 in the Plymouth Five Cents Savings Bank.

21. On December 12, 1947, plaintiff Hilde filed a petition for appointment as administratrix of the estate of her sister Mary G. Braunecker, who died on September 11, 1947. The inventory listed therein certain woodland in Plymouth but nothing in the Town of Kingston (Exhibits 24 and 25).

22. On July 3, 1950, plaintiff Hilde filed a petition to become the receiver of the property of her brother William T. Braunecker of parts unknown. Said petition contained a schedule of the real estate of William T. Braunecker which did not include any real estate in Kingston, Massachusetts. (Exhibit 26).

23. The Town kept the property from 1939 until 1956, some 16 years. As far as the Court can determine no taxes were assessed during this period.

24. By deed dated February 14, 1956 and recorded in Book 2482, Page 93, the Town of Kingston conveyed lots 24, 34, 35, 36, and 39 of Block 14 to John G. Dixon, Jr. of Kingston, Massachusetts. (Exhibit 27)

25. On February 22, 1976, John G. Dixon, Jr. died leaving as his heirs at law the defendants: George W. Dixon, Charles F. Dixon, Marion T. Lundfelt, Robert E. Dixon, Helen Connors and Claire Boyce, who inherited this property. The taxes have been paid since 1956.

1. Did the Board of Assessors properly assess the property in 1933?

General Laws, Chapter 59, Section 11 in effect on April 1, 1933 provides in part as follows:

Section 11. Taxes on real estate shall be assessed, in the town where it lies, to the person who is either the owner or in possession thereof on April first, 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 April first, even though deceased, shall be held to be the true owner thereof, and so shall the person so appearing of record under a tax deed not invalid on its face.

St. 1933, c. 254, §29 changed the tax day from April 1 to January 1 only. This change did not go into effect until December 31, 1934 so that on April 1, 1933 "taxes on real estate shall be assessed...to the person who is either the owner or in possession thereof on April 1, and the person appearing of record, in the records of the county... where the estate lies, as owner on April first even though deceased, shall be held to be the true owner thereof...." In the Supreme Judicial Court in the case of Hardy v. Jaeckle, 371 Mass. 573 at 579, (1976), the Court states that "Although, it appears that in the statutory reference to the person appearing of record..as owner (G.L. c. 59, §11) the word "record" is to the record in the appropriate registry of deeds. This Court has held that the board may also be charged with knowledge of the content of records in the appropriate registry of probate." See cases cited therein (Tobin v. Gillespie, 152 Mass. 219 (1890); Connors v. Lowell, 209 Mass. 111 (1911).

In the case of Fuller v. Fuller, 228 Mass. 441 , (1917) cited with approval in Hardy v. Jaeckle, supra, the tax collector and the assessors were charged with constructive notice of probate records.

There was no one "in possession" here so that the property had to be assessed to the "owners" and under the statute this meant the owner of record. The owner of record on April 1, 1932 was Marks F. Braunecker and he remained the owner until he died on October 27, 1932. He left no will and no wife so that on his death his three children were his heirs. They were Mary G. Braunecker who lived with her father Marks at 154 Court Street, Plymouth, William J. of New York City and the plaintiff, Winifred B. Hilde, then of Minneapolis, Minnesota. William T. Braunecker was appointed administrator of Marks' estate on December 5, 1932. Being a non-resident it was required that he appoint an agent and his sister, Mary G. Braunecker, was so appointed. Her address was 154 Court Street, Plymouth as appears above, the same as her late father's.

On April 1, 1933 taxes for the year 1933 were assessed to "Marks F. Braunecker, Plymouth." Taxes were not assessed to William T. Braunecker as Administrator of Marks' estate, nor to the three heirs of Marks, namely William T., Mary G., and the plaintiff Winifred B. Hilde, the "owners" of the property.

The last sentence of G. L. c. 60, §37 provides:

"No tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading, whether such error or irregularity occurs in the proceedings of the collector or the assessors or in the proceedings of any other official or officials charged with duties in connection with the establishment of such tax title or the inclusion of such item in the tax title account."

The question thus is whether the assessment to Marks F. Braunecker for the year 1933 was an error or irregularity that was substantial or misleading.

The Court in the case of Hardy v. Jaeckle, supra at 580, therein states the law applicable as "There being no person in possession, G. L. c. 59, §11, required the board to assess the property in question to the "owner" and that meant the owner "appearing of record" as determined by resort to the records in the appropriate registry of deeds and registry of probate. The board was required to exercise reasonable diligence to try to determine the owner from those sources, but if the board could not thereby determine the owner it could lawfully assess the property to "persons unknown" or as it did in Hardy v. Jaeckle, supra, assess it to the fictitious "John Doe."

There was not then, and there is not now, any requirement that the board inquire beyond these records to determine the owner; and the assessments cannot be held invalid solely because of the board's failure to inquire outside the registry records for that purpose.

The board of assessors thus had a duty to check the registry of deeds and probate prior to their assessment of the parcels in question in 1932. They either did not look at the records in the registry of probate, or if they did, they made an error. The questionthus arises whether or not this error is "substantial or misleading" under G. L. c. 60, §37.

In the present case the taxes were assessed to Marks F. Braunecker, Plymouth, on April 1, 1933 as they had been in prior years. The purpose for assessment of taxes is the ultimate collection of taxes for the support of local government. The assessment was made and the tax bill sent out to the same address as heretofore. Granted that Marks did not receive it, Mary G. Braunecker lived at the same address as Marks had lived. She was the agent for her brother William T. Braunecker, the administrator of Marks' estate. The tax bills thus got to the true owners, the heirs, whether or not they were listed properly on the assessment. The Court thus finds that there was no "substantial or misleading" error here. The Court rules that the tax was properly assessed.

II. Was the Tax Collector remiss in complying with G. L. c. 60 in mailing a demand for payment and later sending notice of sale to "Marks F. Braunecker Plymouth, Mass.?"

The Court has set forth above the pertinent provisions of G. L. c. 60, §37. This language became part of the general laws by St. 1915, c. 237, §17 which largely modernized tax title procedures. Prior to the passage of this act there was no method of foreclosing tax titles as any right to redeem automatically expired at the end of two years. As a result of this harsh requirement, tax laws were so strictly construed in favor of the tax payer that tax sales were invalidated if there was a failure to comply with the minute particulars of the statutory requirements. City of Fall River vs. Conanicut Mills, 294 Mass. 98 (1936). The Court in City of Fall River further stated:

"The purpose of the enactment was to mitigate the severity of this rule as to errors and irregularities which were neither substantial nor misleading. It was part of an important revision of the law by which fundamental changes were made in the effect of sales for collector." supra, at 99.

Whether an error or irregularity on the part of a collector is substantial or misleading within the meaning of G. L. c. 60, §37 is a question of fact which must be decided according to the circumstances of each particular case. Pass v. Seekonk, 4 Mass. App. Ct. 447 (1976).

The facts in this case differ from those in Bartevian v. Cullen, 369 Mass. 819 (1967). In Bartevian a demand for taxes was made to Vera M. Bartevian, Plymouth, Massachusetts. Vera M. Bartevian never lived in Plymouth, never had a post office box there, nor had she ever stayed overnight in the town. Additionally, her address was given as 29 Forest Avenue, West Newton, Massachusetts, on her deed to the Plymouth property, which was recorded. The Court held that the demand to Vera M. Bartevian, Plymouth, Mass. was a substantial error as this address was not "the owner's last or usual place of business or abode or the address best known to the tax collector." Bartevian v. Cullen, supra, at 822.

In the present case, a demand was sent to Marks F. Braunecker at his home address in Plymouth. Although Marks had died in 1932, (see paragraph 9 herein), his daughter, Mary G. Braunecker, who had been appointed the agent of her brother William T. Braunecker, administrator of the estate of Marks F. Braunecker, still lived in the Braunecker house. (See paragraphs 4 and 5 herein). Presumedly she received the demand for the 1933 taxes as Mr. Cushman testified that it was not returned (see paragraph 13 herein). Thus, even though the demand for the 1933 taxes should have been addressed to the heirs of Marks F. Braunecker, namely his three children, a demand was sent to Marks F. Braunecker at the address where he had lived in life and where his daughter Mary G., the agent of the administrator of his estate and one of his heirs at law lived. These facts are very different than those in the Bartevian case. The likelihood of this notice being received by the owners was great and this Court after forty-eight years is not going to disturb a tax title on such a ground. The Court finds and rules that thus while the demand was erroneously addressed, the error was neither substantial or misleading for the reasons stated above.

III. Does G. L. c. 60, §79 violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and Article 10 of the Declaration of Rights of the Massachusetts Constitution?

Plaintiff contends that the low value procedure is unconstitutional because under c. 60, §79 she is not entitled to actual notice of the proceedings. Section 79 requires the town treasurer to give "notice of the time and place of sale by publication fourteen days at least before the sale in a newspaper...and by posting a notice of the sale in some convenient and public place in the town." These requirements were satisfied in the instant case. (See paragraph 15 herein). See Napier v. City of Springfield, 304 Mass. 1974 (1939).

The due process question would seem to have been answered by the recent case of Guaranty Mortgage Corp. v. Burlington, 385 Mass. 411 (1982) where the Supreme Judicial Court held that the notice provisions of G. L. c. 60, §79, applicable to a sale of low value land satisfy the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 10 of the Massachusetts Declaration of Rights. Guaranty Mortgage Corporation v. Burlington, supra, at 420. In light of the ruling in Guaranty Mortgage Corporation and the fact that the requirements of advertising and posting were satisfied, the Court rules that the plaintiff was not denied due process.

The defendant's predecessor in title, John J. Dixon, acquired title under the low value procedure of G. L. c. 60, §79 by deed of the town of Kingston on February 27, 1956. He and then the defendants for over 26 years have owned the lots and presumedly have paid taxes on them to the Town of Kingston. The plaintiffs have waited for some 48 years - from 1934 to date -before bringing any action herein. This is too long a wait.

Judgment accordingly.


[Note 1] G. L. c. 60, §3 had changed the date of assessment from April 1 to January 1.