This action originally was commenced by a complaint in which the Town of Plymouth is named as defendant (Exhibit No. 1) filed in this Court by David Robertson, as Trustee under a Declaration of Trust dated October 28, 1980 and recorded with Plymouth Registry of Deeds Book 4901, Page 373, claiming to be the owner of an interest greater than fifty per cent in a certain parcel of land situated in Plymouth, in the County of Plymouth, described as Lot 13, Plat 104, of the plans of the Plymouth Assessors ("the property"). The complaint was brought pursuant to the provisions of Chapter 231A, §1 and Chapter 185, §l for a determination of the interest of the plaintiff in the property which had theretofore been taken by the Town of Plymouth for non-payment of real estate taxes and the equity of redemption foreclosed by the administrative procedure set forth in General Laws c. 60, §79. Johnson v. McMahon, 344 Mass. 348 (1962). The complaint alleged that the property formerly was owned by William H. Nelson who died testate on July 18, 1891, that he had devised the residue of his estate to his wife, Hannah C. Nelson, who died testate on November 9, 1914, that as compromised the residue of her estate went equally to her sisters, Harriet D. Thayer and Laura A. Harlow, her brother, Edmund Weston, and her nephew, Charles H. Sherman, that in 1960 the Town of Plymouth assessed the property to Hannah C. Nelson, that on March 27, 1961 the Collector of Taxes made demand on her, that the taxes remained unpaid, that the property was taken after publication and posting of the notice of intention by an instrument of taking recorded on September 15, 1961 in the Plymouth County Registry of Deeds [Note 1] Book 2881, Page 224, that a low value affidavit was obtained from the Commissioner of Corporations and Taxation on November 5, 1963 and recorded in Book 3066, Page 442, that notice of the sale of the property at public auction was posted on November 8, 1963 in the Town Office Building in Plymouth, that the property was offered for sale on December 3, 1963 and no bid being deemed adequate by the Town Treasurer, the Treasurer conveyed the property to the Town of Plymouth by deed dated December 13, 1963 and recorded in Book 3075, Page 473, that Hannah C. Nelson had been dead for many years, as appeared in the records of the Plymouth County Registry of Probate, at the time of the assessment of the premises to her, that the assessment to her was not in compliance with the provisions of G.L. c. 59 § 11, that the demand made by the defendant was improper, that the taking was invalid and that the defendant never acquired valid title to the property.
A motion for summary judgment was heard by this Court on June, 2 1981 and was denied on June 11, 1981 on the ground that the Massachusetts Rules of Civil Procedure did not at that time, apply to matters involving tax takings. The Court in so ruling determined that the action in effect was a request for the right to redeem pursuant to G.L. c. 60 §76. Plaintiff Robertson's exception to the denial was filed on June 22, 1981. [Note 2]
On June 22, 1982 a complaint was filed on behalf of intervening plaintiffs, Nelson C. Bartlett and Lothrop Bartlett, who claimed to be the owners of an undivided one-third interest in the property. The intervenors alleged that one William Nelson owned the property at the time of his death in 1863, that he was survived by three children, Sarah A. Nelson, William H. Nelson and Thomas Nelson, that Sarah A. Nelson died intestate on May 26, 1915 survived by her husband, William K. Churchill and a daughter, Annie C. Bartlett, that Mr. Churchill died on May 17, 1931 survived only by his daughter, Annie C. Bartlett, who in turn died intestate on January 20, 1946 survived by her husband, Leonard, and her three sons, two of whom were intervenors, their father having died on November 8, 1954 and their brother Leonard Bartlett, Jr. on April 10, 1971 testate in Washington, D.C., that Leonard's will left his entire estate to his mother and father who predeceased him, that the intervenors inherited in their parents' stead in accordance with the law of the District of Columbia, and that the other probates in their family were all in Norfolk County. The intervenors also alleged an invalid assessment, a lack of notice to or demand on them, and prayed for a determination that the taking was invalid and that they were the owners of an undivided one-third interest in the property.
A trial was held on September 28, 1982 at which a stenographer was appointed to record and transcribe the testimony. Thirty-nine exhibits and one chalk were introduced. The plaintiffs called no witnesses. Robert A. Carr, a former Selectman and member of the Plymouth Board of Assessors, was the only witness for the defendant.
Prior to the trial the town of Plymouth had filed a motion to amend its answer (Exhibit No. 9C) to add an allegation as to G.L. c. 79 §10, but the motion had not been marked up for hearing prior to the date of the trial. Counsel for the plaintiffs opposed the motion to amend which the Court did allow; however, the Court ruled that the issue of a taking in pais pursuant to the provisions of said §10 was not to be argued or decided until after a decision as to the standing of the plaintiffs and the validity of the 1961 tax taking.
Plaintiffs Bartlett and the defendant have stipulated as follows (Exhibit No. 38):
"l. Locus claimed by Plaintiffs is described as LOT 13 on Plymouth Assessor's Map 104 and as LOTS 2 and 4 on a Plan recorded in the Plymouth County Registry of Deeds in Plan Book 22, Page 88.
2. William Nelson was the record owner of real property which included Locus at the time of his death intestate on October 6, 1863. [Note 3]
3. The Estate of William Nelson was admitted for probate in the Plymouth County Registry of Probate as docket number 14588 Old Series and his sole surviving heirs were his three (3) children, William H. Nelson, Sarah A. C. Nelson, a/k/a Sarah A. E. Nelson, and Thomas L. Nelson.
4. The interest of William Nelson in Locus vested in one-third equal shares in his three surviving children as aforesaid.
5. Sarah A. E. Nelson, a/k/a Sarah A. C. Nelson, a/k/a Sarah A. E. Churchill died intestate May 26, 1915 possessed of a one-third interest in Locus.
6. The Estate of Sarah A. E. Churchill was admitted for probate in the Norfolk County Registry of Probate in docket number 51705 and her sole surviving heirs were therein specified as William K. Churchill, her husband, and Annie C. Bartlett, her daughter.
7. William K. Churchill died intestate May 17, 1931, possessed of an interest in Locus.
8. The Estate of William K. Churchill was admitted for probate in the Norfolk County Registry of Probate in docket number 78056 and therein his sole surviving heir was specified as his daughter Annie C. Bartlett.
9. Annie C. Bartlett died intestate January 20, 1946 possessed of a one-third interest in Locus.
10. The Estate of Annie C. Bartlett was admitted for probate in the Norfolk County Registry of Probate in docket number 110572 and her sole surviving heirs were therein specified as her husband Leonard Bartlett, and her three sons, Nelson C. Bartlett, Lothrop B. Bartlett [Note 4] and Leonard Bartlett, Jr.
11. Leonard Bartlett died intestate November 8, 1954 possessed of an interest in Locus.
12. The Estate of Leonard Bartlett was admitted for probate in the Norfolk County Registry of Probate as docket number 134074 and his sole surviving heirs were therein specified as his sons Nelson C. Bartlett, Lothrop B. Bartlett and Leonard Bartlett, Jr.
13. On January 1, 1960, Nelson C. Bartlett, Lothrop B. Bartlett and Leonard Bartlett, Jr. each were possessed of a one-ninth interest in Locus.
14. Leonard Bartlett, Jr. died unmarried and testate on April 10, 1971 possessed of a one-ninth interest in Locus.
15. The Estate of Leonard Bartlett, Jr. was admitted for probate in Washington, D.C. as docket number 1437-71 and in the Plymouth County Registry of Probate as docket number 137760, and his sole surviving heirs were specified therein as his brothers Nelson C. Bartlett and Lothrop B. Bartlett.
16. No notification was ever given to Nelson C. Bartlett, Lothrop B. Bartlett or Leonard Bartlett, Jr. by the Board of Assessors, Tax Collector, or Treasurer of the Town of Plymouth or by anyone on their behalf at any time relative to assessment of taxes on Locus, non-payment of taxes on Locus, taking of Locus for non-payment of taxes, and the sale of Locus.
17. The Board of Assessors, Tax Collector, and Treasurer of the Town of Plymouth believed that Hannah C. Nelson was the owner of Locus for tax purposes from January 1, 1960 through December 13, 1963.
18. Hannah C. Nelson was not the owner of Locus from January 1, 1960 through December 13, 1963.
19. Hannah C. Nelson died testate on November 9, 1914 and her death certificate is recorded in the office of the Town Clerk of Plymouth and her Will was admitted for probate in the Plymouth County Registry of Probate in docket number 22911 in 1915.
20. In 1960 the Town of Plymouth did not assess any interest in Locus to Lothrop B. Bartlett, Nelson C. Bartlett and/or Leonard Bartlett, Jr.
21. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of William Nelson of tax assessment on Locus, demand for payment of taxes, or taking of Locus for non-payment of taxes.
22. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of William H. Nelson of tax assessment on Locus, demand for payment of taxes, or taking of Locus for non-payment of taxes.
23. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of Sarah A. E. Churchill of tax assessment on Locus, demand for payment of taxes, or taking of Locus for nonpayment of taxes.
24. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of Thomas L. Nelson of tax assessment on Locus, demand for payment of taxes, or taking of Locus for nonpayment of taxes.
25. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of William K. Churchill of tax assessment on Locus, demand for payment of taxes, or taking of Locus for non-payment of taxes.
26. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of Annie C. Bartlett of tax assessment on Locus, demand for payment of taxes, or taking of Locus for non-payment of taxes.
27. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of Leonard Bartlett of tax assessment on Locus, demand for payment of taxes, or taking of Locus for nonpayment of taxes.
28. In 1960 and thereafter, the Town of Plymouth did not notify the living heirs of Hannah C. Nelson of tax assessment on Locus, demand for payment of taxes; or taking of Locus for nonpayment of taxes.
29. The admissions of the Defendant Town of Plymouth to the request for the admission of facts of the Plaintiff David Robertson, Trustee, filed with the Court in April, 1981 and April, 1982, shall be deemed admission of the facts set forth therein as relates to the claim of the Plaintiffs Nelson C. Bartlett and Lothrop Bartlett."
Plaintiff Robertson and the defendant have stipulated only for the purposes of the present case as follows (Exhibit Nos. 18 and 36):
"l. William H. Nelson, husband of Hannah C. Nelson, was Selectman of the Town of Plymouth from 1874 to 1890.
2. There is no record in the Plymouth County Registry of Deeds of any conveyance by Weston C. Thayer of his interest in the property from and after the date of death of his aunt, Anna E. Thayer, up to the present time.
3. Alice Harlow Stetson a/k/a Alice C. Stetson died on August 23, 1949. Alice Harlow Stetson died testate. Her Will was admitted to Probate in the Alameda County, California Superior Court Docket No. 108933. In accordance with the Will and the Order and Decree of Settlement of Account and Final Distribution, all property not known or discovered or in which said estate may have any interest, or which may hereafter by operation of law or otherwise shall come into said estate, be and the same is (shall be) hereby distributed to said Edward H. Stetson. [Note 5] (sic)
4. An Ancillary Probate Proceeding has been filed by David Robertson, Trustee of Rt. 80 Realty Trust, in behalf of the Estate of Alice Harlow Stetson in the Plymouth Probate Court Docket No. 137878.
5. Edward H. Stetson, at one time, had all of whatever interest Alice Harlow Stetson ever had in the property.
6. Laura W. Harlow died on April 17, 1952. Laura W. Harlow died testate. Her Will was admitted to probate in Alameda County, California Superior Court Docket No. 119575. In accordance with the Order and Decree of Settlement of Account and Final Distribution, the balance of the estate (which would include the property) is distributed to the sole heir at law, Edward H. Stetson.
7. An Ancillary Probate Proceeding has been filed by David Robertson, Trustee of Rt. 80 Realty Trust, in behalf of the Estate of Laura W. Harlow in the Plymouth County Probate Court Docket No. 137,877.
8. Edward H. Stetson, at one time, had all of whatever interest Laura W. Harlow had in the property.
9. Edward H. Stetson conveyed all and whatever interest he ever had in the property as a result of inheritance from his mother, Alice Harlow Stetson, and his aunt, Laura W. Harlow, to William J. Devine by deed dated December 18, 1979 and recorded in the Plymouth County Registry of Deeds in Book 4781, Page 336.
10. Loren F. Howland died on March 16, 1973. Loren F. Howland died intestate. The probate record of Loren F. Howland is found in the Plymouth County Registry of Probate No. 137,456. Loren F. Howland was survived by his wife, Ada B. Howland, his brother, George W. Howland, and his two sisters, Doris Howland and Mary Anderson.
11. Ada B. Howland, at one time, had all of whatever interest Loren F. Howland ever had in the property.
12. Ada Howland conveyed all and whatever interest, which she may have inherited, in the property to David Robertson, Trustee of Rt. 80 Realty Trust, by deed dated February 3, 1981 and recorded in the Plymouth County Registry of Deeds in Book 4949, Page 464.
13. William J. Devine conveyed all and whatever interest to David Robertson, Trustee of Rt. 80 Realty Trust, in deed dated October 28, 1980 and recorded in the Plymouth County Registry of Deeds in Book 4901, Page 378 and in confirmatory deed dated December 3, 1980 and recorded in the Plymouth County Registry of Deeds in Book 4923, Page 017."
Other material facts which do not appear in the Stipulations but which do appear either in plaintiff Robertson's requests to admit facts which were admitted by the town or in the exhibits are:
1. In 1960 the town assessed the property for tax purposes to Hannah C. Nelson and the taxes remaining unpaid, within fourteen days after demand on Mrs. Nelson, the property was taken by the Collector of Taxes by instrument recorded on September 15, 1961 in Book 2881, Page 224. (Exhibit No. 10). The real estate tax commitment list for 1960 (Exhibit No. 33) gives Mrs. Nelson's probate No. 22911 to the right of her name with B249 P231 typed beneath it. The latter is the recording reference to an indenture by which Mrs. Nelson's father-in-law acquired title to the property (see ftn. 2). It is unclear when this information was added. The 1962 list gives the persons assessed as "Nelson, Hannah C. Heirs of Plymouth Mass." without the registry of deeds and probate references (Exhibit No. 34). That for 1963 is the same (Exhibit No. 35).
2. Thereafter by instrument dated October 30, 1963 and recorded in Book 3066, Page 450 the Plymouth town treasurer certified to Commissioner of Corporations and Taxation (Exhibit No. 12) that the land was taken for the 1960 taxes which were committed to the Collector on September 12, 1960, that demand was made on Hannah C. Nelson on March 27, 1961, that the land as advertised for sale in the Old Colony Memorial on July 20, 1961, the description therein being "Land, Plympton Rd., Lot 13, Plat 104," that notice of the taking or sale was posted at the Town Office Building and Tax Collector's Office on July 20, 1961, that the taking was made on August 5, 1961 by instrument recorded as aforesaid.
3. The Commissioner's Affidavit of Low Value recited that in his opinion the value of the property was insufficient to meet the taxes, interest and charges and all subsequent taxes and expenses thereon together with the expenses of the foreclosure of the rights of redemption pursuant to G.L. c. 60 §79, that the parcel did not exceed $1,000 in value and that the facts essential to the validity of the tax title had been adequately established was dated November 5, 1963 and recorded in Book 3066, Page 442 (Exhibit No. 11).
4. The treasurer then offered the property for sale at public auction on December 3, 1963 in accordance with a notice of sale posted in the Town Office Building in Plymouth on November 8, 1963, and no adequate bid having been received, the town became the purchaser as set forth in the treasurer's deed to the town dated December 13, 1963 and recorded in Book 3075, Page 473 (Exhibit No. 13).
5. The death certificate of Hannah C. Nelson which states that she died on November 9, 1914 is with the records in the offie of the Town Clerk of Plymouth (Exhibit No. 19).
6. Non-locus property at 79 Court Street in said Plymouth was assessed to the Hannah C. Nelson heirs or devisees in 1915 and 1916.
7. The Real Estate Tax Commitment for the Town of Plymouth for the years 1947 through 1959 does not list Hannah C. Nelson as owner of any property in the Town of Plymouth.
8. The property was not assessed to anyone from 1933 through 1959.
9. The 1919 valuation list shows 14 acres at Woodland Parting Ways was transferred from William H. Nelson (Heirs or devisees) and Jessee Harlow (Heirs or devisees) to Charles H. Sherman, Harriet (te) Thayer and Laura G. Harlow, and said premises were so assessed from 1919 through 1932. There are insufficient facts to determine whether or not this is locus.
10. The Massachusetts Department of Public Works laid out on Plympton Street (also known as Parting Ways Road) a State Highway and took for the Commonwealth by order dated January 8, 1952 and recorded in Book 2186, Page 488 (Exhibit No. 29) a parcel of land containing 640 square feet from the heirs of Hannah C. Nelson. Said Roger H. Sherman thereafter executed an easement for a drainage ditch to the Commmonwealth by instrument dated June 23, 1952 and recorded in Book 2228, Page 205 (Exhibit No. 30).
11. A card kept by the Plymouth Assessors (Exhibit. No. 31) for Lot 13 Plat No. 104 gave Inhabitants of the Town of Plymouth as the owner (from Heirs of Hannah C. Nelson) and showed the area and valuation of the property for the years 1963 through 1967 and 1970 (i.e. 16.21 acres for each year other than 1963 shown as 705,996 square feet, and $350). On its reverse side appears the following:
Harriet D. Thayer-Hingham-Sister
Laura A. Harlow-California-Sister
Charles H. Sherman-Plymouth-Nephew
Share in Wood Lot-Parting Ways on 1/30/1915-Final
1974 Permit #28-Elementary School
12. There was no conclusive evidence as to the author of the title chain appearing on the assessors' card or the date when the notes were made.
13. The predecessor card for the property gave "Nelson, Hannah C. Heirs of" as the 1852 owner, referred to "B249 P231 1914 Pro. 22911 B3075 P473" as a reference. It appears to be of recent draftsmanship and not to date back to 1852 when in fact neither Hannah C. Nelson nor her heirs or devisees were the owners.
14. As suggested by Exhibit No. 31 the Town in its answer states that it constructed certain "amenities" for an elementary school on a portion of the property in 1975 in good faith and in reliance upon the vailidity of the taking. The site of the school is shown on a plan entitled Property Map of Plymouth Elementary School Site (West) for Present Elementary School Building Committee in Plymouth, Plymouth County, Massachusetts dated December 21, 1973 by Garcia, Hanack & Richard Engineering Corp. (Exhibit No. 39).
15. Plaintiff Robertson and his predecessors have acquired some of the interest of those claiming under Hannah C. Nelson who at her death held title of record to an undivided one-third interest in the property. The intervenors have succeeded to the undivided one-third interest inherited by Sarah A. E. Churchill from her father William Nelson. The undivided one-third interest of Thomas L. Nelson has not been traced beyond Mary S. Nelson.
For purposes of the present case, all plaintiffs and the defendant have stipulated as follows (Exhibit No. 37):
"l. If the taking by the Town of Plymouth of the property is declared void, the parties listed below hold the following fractional interests in the property, subject to any other valid claims which the Town of Plymouth may have:
Fraction Common Denominator
A. Nelson C. Bartlett 1/6 42/252
B. Lothrop Bartlett 1/6 42/252
C. David Robertson, 5/21 60/252 Trustee of Rt. 80 Realty Trust
D. The Heirs of Edmund Weston 1/12 21/252
E. The Heirs of Mary S. Nelson 1/3 84/252
F. Joseph A. Deans 1/252 1/252
G. Kathrine Deans 1/252 1/252
H. Mary Gilberti 1/252 l/252
TOTAL: 1/1 252/252"
Massachusetts statutes provide two ways to foreclose the real estate taxpayer's right of redemption. Johnson v. McMahon, 344 Mass. 348 (1962). There is the judicial foreclosure pursuant to G.L. c. 60 §65 in which the holder of the tax title, commonly a city or town, files a complaint with this court in which it seeks to perfect its title by forever barring redemption. An examiner is appointed by the Court to review the registry records and to determine those entitled to notice, after which service is had by registered or certified mail, publication, or otherwise as ordered by the Court. G.L. c. 60 §66. A hearing is held if the proceeding is contested, and a decree is entered either forever barring redemption or granting it on such terms as the Court may order. An alternative method of foreclosure by the administrative process is provided by G.L. c. 60 §79 in instances where the assessed value is low, $1,000 or less in the time frame of this case, $2,500 today. The procedure authorized by Section 79 is illustrated by the facts which I have found.
The differences in the judicial and administrative procedures also may explain possible differences in the finality of the foreclosure. When a decree of this Court is entered foreclosing the right of redemption, it may only be vacated after the expiration of one year in proceedings commenced by the plaintiff. Before or after the period of a year the Court will vacate its decree only if the ends of justice will be served. Deveney v. Boston, 346 Mass. 764 (1963) Vincent Realty Corp. v. Boston 375 Mass. 775 (1978) Springfield v. Schaffer, Mass. App. Ct. (1981). [Note 6] Section 79 on low value foreclosures specifically provides that "Title taken pursuant to a sale under this section shall be absolute upon the recording of such deed of the treasurer." However, "this provision does not attempt to validate the title of a town acquired by an invalid taking." Johnson v. McMahon, supra, at page 351. Nonetheless the Supreme Judicial Court has very recently recognized the burden which would be placed "on cities and towns to require them to examine the title to every parcel of low-value land on which taxes have not been paid immediately before taking steps to collect the taxes or to sell the land." Guaranty Mortgage Corp. v. Burlington, 385 Mass. 411 (1982). Justice Nolan's decision also stressed that the leitmotif of tax cases from other jurisdictions which approve of notice by publication is that a tax payer should know that the city or town will eventually sell his property if the taxes are not paid.
G.L. c. 59 §11 mandates that taxes on real estate are to be assessed in the town where it lies, to the person who is the owner on January 1. It then provides that for purposes of this section 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, although there is a further provision, not applicable here, as to assessment to the person in possession. While the statute has been held to refer to the records in the registry of deeds, the Supreme Judicial Court has held that the assessors may also be charged with knowledge of the content of records in the appropriate registry of probate. Hardy v. Jaeckle, 371 Mass. 573 , 578-580 (1976). The Hardy case also reiterates that the assessors are required to use reasonable diligence to try to determine the owners from those sources. On all the evidence, I find and rule that they did use reasonable diligence.
Until the plaintiff and his predecessors commenced their efforts to acquire interests in the property, the most recent conveyance of the property was in December of 1852 when William Nelson took title thereto. The only other transactions of record in the Registry of Deeds would appear to have been the taking by the Department of Public Works of a small parcel of the property for the layout of Plympton Road as a state highway and the grant of a drainage easement to the Commonwealth by a person having an undivided one-twelfth interest therein, and who would not appear from either the records in the registry of deeds or probate to have an interest in the property. A portion of the property is alleged by the Plaintiff Robertson and admitted by the town to have been conveyed to the Plymouth and Middleboro Railroad in 1892 (see also the plan which is Exhibit No. 39), but a copy of this deed is not before the Court.
It is true that the chain of title to property owned by William Nelson can be partially followed in the registry of probate. The plaintiffs did not introduce the inventories in any of the Plymouth County Probates (the only ones of which the Town is bound to take notice) so it is unclear from this record whether either the town or the administrators of the various estates were aware that undivided interests in the locus were owned by the decedents in the chain of title. It does appear that from 1919 to 1932 there was assessed to persons whom we know to be devisees of Hannah C. Nelson a 14 acre parcel at Woodland Parting Ways, but it is uncertain whether this is the property, particularly since "Jessee" Harlow (Heirs or Devisees) as well as William H. Nelson was an assessed owner prior to the change to Charles H. Sherman, et al.
In summary, William Nelson died intestate in 1863 survived by three children, William H. Nelson, Sarah A. C. Nelson and Thomas L. Nelson. Thomas L. Nelson died on August 19, 1903 and his will was admitted to probate in Norfolk County. For purposes of this case, his residue passed to Mary S. Nelson. Those claiming under her have not been located. The plaintiffs Bartlett claim under Sarah A. C. Nelson, and there are no conveyances or probates in Plymouth County in their chain. The one-third undivided interest passed to William H. Nelson who died on July 18, 1891, and the residue of his estate was devised to his widow, Hannah.
We are left then with a factual pattern in which the assessors for some reason placed the property on the 1960 tax rolls after a gap of nearly thirty years and possibly many years longer. Bartevian v. Cullen, 369 Mass. 819 (1976). We can only surmise as to whether this was the result of the assessors' maps first being prepared for outlying parts of the town in this period or as to whether it was a result of the Commonwealth's taking. In any event, the Court takes judicial notice (see Hardy v. Jaeckle, supra,) of the enormity of the task which faced the assessors in returning the property to the tax rolls. Indeed plaintiff Robertson should sympathize with them for his complaint is framed (and has never been amended) on the theory that Hannah C. Nelson at one time owned the entire fee in the premises when it is evident from the stipulations that an undivided one-third interest was the extent of her ownership. In 1960 when the assessors assessed the property to Hannah C. Nelson, they had several options as to the correct assessment. If they had been able to trace the record title back to William Nelson, the property might have been assessed to any one of his three children (an assessment to one of several tenants in common being sufficient, McManus v. Boston, 320 Mass. 585 (1947)) or to their successors as appearing in the records of the Plymouth registries of deeds or probate. Thomas Nelson had died without the county on August 19, 1903 and is said to have devised the residue of his estate to his wife Mary S. Nelson, who cannot be located. The Plymouth Assessors properly, therefore, could have continued to assess this interest (or indeed the entire property) to Thomas Nelson.
The undivided one-third interest to which the intervenors lay claim also has a title history without Plymouth County. The grandmother of the intervenors through whom they claim was a resident of Norfolk County, as were the parents of the intervenors, and it is there that their probates are to be found. Accordingly, there is no registry of deeds or probate records in Plymouth County to apprise the assessors in 1960 as to the ownership of the undivided one-third interest claimed by the intervenors which at that time would have been in them and their brother who has since deceased. As to the undivided one-third interest which passed to Hannah C. Nelson, its ownership has splintered into fractions with a common denominator said to be l/252nd. It is clear that the assessors knew in 1915 at the time of Hannah C. Nelson's death the names of those entitled to take under the compromise of her will as to non-locus property. It is not clear, on the other hand, that when the newly discovered property was returned to the tax rolls on a low value basis in 1960, when it had been last assessed no later than 1932 (if then), that it was the duty of the assessors to research their back records to discover the heirs or devisees of Hannah C. Nelson or indeed to ascertain that she had died. The plaintiff Robertson points to the fact that her husband was well known, but the assessors are not charged with non record knowledge, at least absent personal knowledge as in West v. Selectmen of Yarmouth, 345 Mass. 547 (1963). See Hardy v. Jaeckle, supra. Even if the assessors had assessed the property to the four devisees of Hannah C. Nelson by name, they would have been no more enlightened as to whom the property was to be assessed, nor would the Collector have had any better idea as to whom the owners in fact were as of January 1, 1960. Laura W. Harlow is said to have died in 1918 in California testate and all those claiming an interest under her died in that state with California probate proceedings only pursuant to which Edwin Harlow Stetson is said to be the sole heir and sole beneficiary. There have been no ancillary probate proceedings in any of such estates until plaintiff Robertson recently filed a petition therefor in the estate of Laura W. Harlow. There is no way which the assessors could have ascertained this title chain from the records available to them.
As to Charles H. Sherman's interest, he died January 27, 1942 without a probate. It is alleged that his interest passed to Roger H. Sherman who died intestate on March 5, 1957 with a Plymouth probate, but there is nothing on the records to require the assessors to link Charles H. Sherman and Roger H. Sherman. As to Edmund Weston, he is said to have died with no known probate. The only heir or devisee of Hannah C. Nelson with Plymouth probate proceedings of which the assessors might have been cognizant was Harriet D. Thayer. She and her two daughters all died in Plymouth County and probate proceedings were instituted in their estates. By 1960, however, they had died and their undivided one-twelfth interest in the property is said to have been passed to Weston C. Thayer who lived without the county. What records there may have been in the Thayer probate proceedings to direct the assessors to Weston C. Thayer has not been shown.
The property properly might have been assessed to Thomas L. Nelson (or his heirs and devisees) or to three of the four named devisees of Hannah C. Nelson (there being no Plymouth probates for them) and the heirs and devisees of the fourth, Harriet D. Thayer, or to any combination of such persons. Under the circumstances of this case, I find and rule that the assessors were not required in the assessment of property of marginal value to undertake the extensive search of the records to determine the person(s) to whom assess the property. Hardy v. Jaeckle, supra. I further find and rule that even if the assessors had a duty to do so, the error or irregularity in the assessment was neither substantial nor misleading within the meaning of G.L. c. 60 §37, the overwhelming conclusion from the facts submitted by the parties being that none of the present parties plaintiff (or those from whom their interest was acquired) would have been any more aware of their interest if the property had been assessed in a variety of the different permissible ways than they were with the assessment to Hannah C. Nelson. In addition, it ill behooves the plaintiffs to raise now the question of an improper assessment when they or their predecessors did not advise the town of their addresses (G. L. c. 60 §39) or ever inquire as to failure of the town to assess them for the real estate in which they now claim an interest.
The defendant did not plead laches or estoppel, but the Court notes that the complaint was filed only shortly before the defendant would have been in a position to establish title by adverse possession and after it had changed its position.
I therefore find and rule on all the evidence that the taking by the defendant was valid and that all rights of redemption have been foreclosed.
Plaintiff Robertson has submitted thirty-four requests for rulings of law. I grant Nos. 5, 6, 9, 10, 11, 12, 13, 14, 15, 25, and 26. I deny, as inconsistent with the facts I have found, or rulings of law I have made, Nos. 1, 3, 7, 16, 18, 20, 22, 28, 29, 31 and 33. I deny requests Nos. 2, 4, 8, 17, 19, 21, 23, 27, 30, 32 and 34. I also deny request No. 24. See Guaranty Mortgage Corp. v. Burlington, supra.
[Note 1] Unless the context otherwise requires, all recording references hereafter are to said Registry of Deeds.
[Note 2] Mass. R. Civ. P. 1, as rewritten by 1981 court order effective January 1, 1982, now makes the new rules applicable to tax cases.
[Note 3] The stipulation does not refer to the source of Mr. William Nelson's title, but it is an indenture recorded in Book 249, Page 231 (Exhibit No. 14A).
[Note 4] The first name of Lothrop B. Bartlett also appears as Lothrup in certain paragraphs of the stipulation and elsewhere, but thisappears to be a typographical error corrected herein.
[Note 5] The language is inappropriate for purposes of this case.
[Note 6] Mass. App. Ct. Adv. Sh. (1981) 1405.