By a complaint filed on January 10, 1979, the plaintiffs pray that the rights of all persons entitled to redemption from certain tax proceedings may be foreclosed, that this Court enter a Decree that the title of the plaintiffs to the land subject to said proceedings is absolute and that all rights of redemption are barred and for such other further relief as may seem meet and proper to the Court, all as provided in General Laws Chapter 60, Section 65, as amended. In accordance with Section 66 of said chapter, the Court caused an examination of title to be made by one of its official examiners to determine the persons who might be interested in the title and thereafter gave notice to all such persons. Either from the publication and mailing or by independent investigation, the pendency of the tax proceedings became known, and several answers were filed on behalf of the various defendants. At the time of the trial, there remained in the case as defendants the following persons all of whom claim as heirs of Leona M. Savage, as heirs or devisees of her heirs, or as purchasers from said heirs: Patricia Lett, Benjamin L. Hall, Therese M. Hall, William J. Devine, Edmund A. Fortier, Rosemary Mee, Virginia M. D'Entremont, Russell Fortier, O. Lee Fortier, Jeanne E. Fortier, Ernest C. Fortier, Virginia Howe, Wesley Gorman and Susan Washington. Some of the defendants have conveyed their interest, if any, to others and ultimately may seek to attack the validity of such transactions.
A trial was held on June 10 and 11, 1982 and August 24 and 25, 1982. The trial had been preceded by preliminary hearings to determine the scope of the initial trial proceedings. It was determined that the Court first would "bear evidence and make findings as to the validity of the tax title in question and the standing of the plaintiffs. This is in accordance with practice sometimes followed by this Court in the past. See Franklin v. Metcalfe, 307 Mass. 386 (1940), Boston v. Boston Port Development Co., 308 Mass. 72 (1941). If the Court should find and rule that the tax title is invalid, then that ruling would dispose of the proceedings on the Trial Court level; if, however, the Court should find and rule that the title is valid, then further hearings would follow to determine whether the defendants were entitled to redeem and if so, which of the defendants, and on what terms. The trial also was preceded by a hearing on the plaintiffs' motion to dismiss as to defendant Patricia Lett, which was heard by William I. Randall, Chief Justice of this Court, and was denied.
At the trial a stenographer was appointed to record and transcribe the testimony. All exhibits (of which there are 49) are incorporated herein for the purpose of any appeal. At the trial both the plaintiffs and the defendants called a Title Examiner and a surveyor to testify. The plaintiffs also called as witnesses two residents of Martha's Vineyard: one who now is Administrative Assistant to the Board of Assessors of the Town of Edgartown, and the other who served in the past as Town Accountant, Clerk to all Boards.
The tax sale under scrutiny concerned 1927 taxes assessed to one Leona M. Savage for the non-payment of which land was sold on December 31, 1928 by the Collector of Taxes of the Town of Edgartown (Exhibit No. 25) to Edwin T. Smith by instrument dated January 29, 1929 and recorded on the following day with Dukes County Registry of Deeds [Note 1] Book 164, Page 344. The defendants, William J. Devine and Patricia Lett, attack the tax sale on the ground that the description in the assessment and the notice by publication of the sale is inaccurate and legally insufficient. Said defendants also claim that the tax title is invalid on the grounds that the records are silent as to where demand was made on Leona M. Savage and the amount of interest due on the unpaid taxes; that there is no evidence as to posting of the notice of the tax sale; that the deed itself from the Collector to the purchaser at the tax sale also is flawed on these grounds and, in addition and apart from statutory requirements as to tax titles, it is contended that the deed, as a deed, was insufficient to convey title. Defendants Fortier, Howe, Mee and D'Entremont also fault the tax proceedings on the ground of inadequacy of description.
I hold that no error or irregularity in the tax title proceedings is substantial or misleading within the meaning of G.L. c. 60 §37 and that the tax title is valid.
On all the evidence, I find and rule as follows:
1. In the early years of this century, one Gerald J. Savage who was to become the husband of the assessed owner, Leona M. Savage, and Gilbert S. Dobson acquired large tracts of land in Martha's Vineyard which they developed as the South Beach Land Company. Gerald J. Savage first acquired title to the so-called Stewart farm by four deeds as follows: (a) a deed from Allen P. Stewart to Gerald J. Savage, dated August 24, 1905 and recorded in Book 112, Page 114 (Exhibit No. 1); (b) a deed from Lydia R. Stewart to Gerald J. Savage dated August 24, 1905 and recorded in Book 113, Page 267 (Exhibit No. 2); (c) a deed from Allen P. Stewart to Gerald J. Savage dated August 24, 1905 and recorded in Book 113, Page 262 (Exhibit No. 3); and (d) a deed from Allen P. Stewart to Gerald J. Savage dated August 24, 1905 and recorded in Book 108, Page 378 (Exhibit No. 4)
2. Gerald J. Savage then conveyed an undivided one-half interest in the lands deeded to him by Allen P. Stewart and Lydia R. Stewart to Gilbert S. Dobson by deed dated August 28, 1905 and recorded in Book 112, Page 368 (Exhibit No. 5).
3. Gilbert S. Dobson reconveyed to Gerald J. Savage his interest in the Stewart lands, with the exception of many enumerated lots, by deed dated December 27, 1906 and recorded in Book 114, Page 184 (Exhibit No. 10).
4. Gerald J. Savage next conveyed to Isabelle T. Blizard an one-half undivided interest in the real estate which he had acquired from the Stewarts by deed dated January 4, 1907 and recorded in Book 117, Page 298. This deed also excepted certain named lots (Exhibit No. 11).
5. Partition proceedings then were brought by Gerald J. Savage against Isabelle T. Blizard in the Superior Court for Dukes County citing the ownership of the properties in common and praying that the land be set off and assigned to Savage and to Blizard in severalty, which the Commissioners appointed by the Court ultimately did (Exhibit No. 12).
6. The Commissioners set off (Exhibit No. 13) to Gerald J. Savage the land to the east of the partition line, shown in green [Note 2] on Exhibit No. 29 which is a print of the plan entitled "Plan of Land at South Beach, Edgartown, Mass. Owned by Gerald J. Savage and Gilbert S. Dobson" and a smaller parcel at the southwesterly corner of the land shown on the plan. There also is as an exhibit, a smaller version of said plan, which was recorded in Plan Book 7, Page 50 (Exhibit No. 8). Both the copies of the plan also bear a legend "Plan of South Beach Land Co. No. 3." It was preceded on the records by Plans No. 1 and No. 2 (Exhibit No. 7) which were recorded in Plan Book 7 at pages 42 and 46 respectively. The set-off is recorded in Book 118, Page 379.
7. Isabelle T. Blizard, just prior to the confirmation of the report of the Commissioners by the Court, conveyed her interest in the premises, which Savage had conveyed to her, to Fred J. Dobson by deed dated September 23, 1908 and recorded in Book 121, Page 2 (Exhibit No. 14). Dobson therefore succeeded to the title to the premises set off to her.
8. Gerald J. Savage conveyed his interest in the premises set off to him to Joseph L. Fortier by deed dated October 27, 1908 and recorded in Book 121, Page. 34 (Exhibit No. 15); Fortier immediately conveyed the same premises to Savage's wife, Leona, who also appears in the exhibits as Leona M. Fortier, her maiden name, by deed also dated October 27, 1908 and recorded in Book 121, Page 36 (Exhibit No. 16).
9. The assessments during the years when a) Savage acquired and held the Stewart properties, b) the partition proceedings were consummated and c) title was transferred to Leona followed the pattern of the instruments affecting the title. In 1906 Savage and Dobson were assessed as owners of a homestead farm, 85 acres with a dwelling house and barn. In 1907 the area dropped to 80 acres 80 rods, with a dwelling house and barn, and the assessment, as dictated by the Registry records, was to Savage and Isabelle T. Blizard; the property was described as "Tract of South Beach Land Co." It was the same in 1908. In 1909 the results of the partition were not correctly analyzed, and the assessed owners appear as Leona M. Savage and Fred J. Dobson; the property assessed was described as "Tract of South Beach Land Co. 80 acres 80 rods," again with a dwelling house and barn. In the December 1910 omitted assessments Leona M. Savage was assessed as the owner of 39 acres South Beach tract, with dwelling house and barn, and Fred J. Dobson, listed immediately below, for "40 acres land, South Beach tract." Leona M. Savage also was assessed for 66 lots at South Beach "bought back" in 1911, and with minor variations in the number of lots, the records of the assessors did not change until 1917 (Exhibit No. 41). In 1910 and subsequent years, individual lots also were assessed to Mrs. Savage.
10. Prior to the Stewart homestead acquisition Leona M. Savage, then Leona M. Fortier, acquired title to the so-called Willoughby tract from Maria A. Willoughby by deed dated April 5, 1907 and recorded in Book 117, Page 528 (Exhibit No. 38) and also recorded, perhaps through error, again at page 530 (Exhibit No. 39). About the same time Gerald J. Savage conveyed to his "future" wife in her maiden name of Leona M. Fortier his right, title and interest in the "Plain Lots" by deed dated March 30, 1907 and recorded in Book 114, Page 236 (Exhibit No. 37). There also is a 1907 conveyance to Leona M. Fortier from Love H. Vincent dated June 7, 1907 and recorded in Book 114, Page 316 conveying certain lots in the "Creek Field" (Exhibit No. 35). Subsequently Leona M. Fortier and Sarah B. Vincent, et al, exchanged deeds dated January 3, 1908 and recorded in Book 114, Pages 448 and 456 (Exhibit Nos. 48 and 36) in an apparent boundary line adjustment. It appears that the Willoughby tract adjoins the partition premises set off to Savage on the east, and that it in turn abuts the Vincent premises.
11. The assessment to Leona M. Fortier of the Willoughby and Vincent properties is identifiable only in 1908 when it appears as Beach Pasture of Willoughby (originally 30 acres) 21 acres and land called "Creek Field Adj ." 60 acres. In 1918 she appears on the valuation list as the owner of "Land called David Vincent lots of Gerald J. Savage" but without an area or amount of assessment being given. It is uncertain as to what property this relates (Exhibit Nos. 10 and 41).
12. In 1917 the assessment outlined in paragraph 9 was revised to describe in addition to land at South Beach Tract, 39 acres, 58 lots at South Beach Tract having 6 acres 37,771 feet.
13. Leona M. Fortier, now Savage, conveyed to Gerald J. Savage Incorporated by deed dated February 20, 1918 and recorded in Book 146, Page 368 her South Beach holdings including the Stewart partition tract, the Willoughby tract, the Vincent tract and various lots (Exhibit No. 21). The corporation reconveyed the same premises to Leona M. Savage by deed dated July 1, 1921 and recorded in Book 156, Page 401 (Exhi bit No. 22).
14. In 1917 the valuation list included Leona M. Savage as the owner of "Land at So. Beach Tract 39 acres" and "58 lots at So. Beach Tract 6 acres 37,771 feet"; the following year Gerald J. Savage, Inc. appears as the owner of "Land at South Beach Tract of Leona M. 39 acres" as well as "58 Lots at South Bach Tract 6 acres 37,771 feet." The lists for 1919, 1920 and 1921 are substantially the same. In 1922, however, the valuation list shows Leona M. Savage as the owner of "Land at S B of G. J. Savage, Inc. 39 acres" and "54 lots at S.B. tract 6 acres 37,771 feet" and two miscellaneous lots. The number of lots assessed to Leona becomes 58 in 1924, 1925 and 1926 (plus assorted lots otherwise described) and the number disappears altogether in 1927. The area of the lots was decreased to 6 acres 22,771 feet in the latter year. In each of the four years the 39 acre tract was described as "Land at So. Beach Tract 39 acres" Finally, in 1928 the only property of Leona M. Savage on the valuation list is "Land S. Beach Tract 39 acres". (Exhibit No. 41).
15. The Collector of Taxes for the Town of Edgartown took from Leona M. Savage for non-payment of the 1916 and 1917 taxes, 39 acres of land at South Beach Tract and 58 lots at South Beach Tract containing 6 acres, 37,771 feet, by instrument dated September 28, 1918. The Collector's affidavit pursuant to G.L. c. 60, § 57 recites a written demand on Leona M. Savage, the amount of the taxes unpaid, and the giving of notice by mailing, by posting in the Town Hall, and by publishing in the Vineyard Gazette. The taking is dated September 28, 1918. It and the affidavit are recorded in Book 147, Page 226 (Exhibit No. 23).
Subsequently, Leona M. Savage redeemed the 1918 tax taking which was released by instrumet dated December 18, 1924 and recorded in Book 165, Page 384 (Exhibit No. 24).
16. Finally we reach the sale around which the present litigation centers. The Collector of Taxes by instrument dated January 29, 1929 and recorded in Book 194, Page 344 (Exhibit No. 25) first recited in the preamble that the assessors in the list of assessments for taxes committed to the Collector for the year 1927, assessed to Leona M. Savage the sum of $32.76; that demand was made on Leona M. Savage for the payment of said taxes which were not paid; that fourteen days after the demand, the taxes not having been paid, the land was advertised for sale for an amount sufficient to satisfy said taxes with interest, legal costs and charges, at public auction on December 31, 1928 at the Town Hall in Edgartown, by publishing an advertisement thereof containing also a "substantially accurate description" in the Vineyard Gazette published in Edgartown three weeks successively, and by posting the advertisement in two public and convenient places in Edgartown to wit: the Town Hall and Corner Market, three weeks before the time appointed for said sale, and that the taxes so assessed not having been paid, the land was sold at the time and place appointed for the discharge and payment of said taxes thereon with interest legal costs and charges. The Collector's deed, after such preamble, conveyed to Edwin T. Smith the real estate described therein as "Land at South Beach consisting of a tract of 29 acres" (Exhibit No. 25). The legal advertisement which appeared in the Vineyard Gazette in the papers of December 7, 14, and 21, 1928 described the property as follows: "Leona M. Savage - Land at South Beach consisting of a tract of 39 acres - tax year 1927, $32.76." There was no mention of the 6 acre 22,771 feet piece, but it is clear from the list which gives an assessment of $600 for the smaller area and $800 for the larger one that the total assessment of $1400 on which the tax was computed must have included both tracts. In 1928 when only the 39 acre tract was assessed , its valuation appears in the list as $800. The notice included proposed sales of land of four other property owners with similar descriptions of the premises to be sold.
17. One of the witnesses, Albert H. Prada, who was born in Edgartown on December 7, 1912 and has lived his entire life on Martha's Vineyard, testified as to the type of community which Edgartown was at the time of the tax sale. He described it as "real open country - not like it is today - acres and acres of land, hundreds of acres." The total population in Edgartown in 1920 was approximately 600. During the period from 1920 to World War II, the economy gradually changed from "farming, fishing, that sort of thing" to tourism." The 1938 hurricane hit the island severely and gave impetus to the change, but even in 1944 when the witness became clerk of all boards, the population at most was 900. Land was cheap, and the town sold it for $1.00 per lot to return it to tax rolls. This witness testified that with his knowledge of the Stewart farm and the Savage properties, he would have been able to locate the 39 acres. According to the witness, many other residents would also be able to locate the parcel. However, the plaintiffs' title examiner testified that he would be unable from the records to locate the lot on the ground other than within the South Beach area.
18. There were no assessors' maps of the outlying districts of Edgartown until sometime after 1944. Prior thereto only the intown area was mapped. The practice of the assessors in the time frame of World War II and thereafter was to attempt to describe properties that had been sold from the records furnished by the Registry of Deeds; if additional information as to area was needed, the witness would ask the grantor how much he had sold. Not only the present problem description but those relating to other properties set forth in the same legal advertisement show that similar techniques must have been used in earlier decades.
19. It is unclear how large an area is in fact encompassed by the Stewart partition tract which the plaintiffs claim comprised the 39 acre tract assessed to Leona M. Savage. Their surveyor who lives in Vineyard Haven and has been a licensed surveyor for many years on the island, testified that he had calculated the acreage by using two different methods. First, he scaled the perimeter of the section set off to Gerald J. Savage, i.e. the easterly portion of the South Beach Plan No. 3 and the far westerly portion, which gave him a total of approximately 53 acres. He then eliminated from his calculations the area within the roads on the plan and the lots excluded from the set off in the partition instruments with a resulting figure of 38 acres. A second procedure which he followed consisted of adding up the area of the lots within the Savage set off for a total of 41.37 acres. Excluding the lots not included in the partition deed, he reached a total of 38.56 acres. The surveyor for the defendants, by scaling and not eliminating the roads, found a total of 50.12 acres (Exhibit No. 43) as of October 9, 1908. He also calculated the total area owned by Leona M. Savage as of December 31, 1928 (Exhibit No. 44), including all her contiguous holdings, and found 109.20 acres as her total land holdings in the South Beach, Edgartown area. Finally, he prepared a plan showing ownership as claimed on June 9, 1982 (Exhibit No. 45). The 1908 depiction does not include the Willoughby or Vincent tracts as do Exhibit Nos. 44 and 45. [Note 3] The actual area in the tract owned by Leona M. Savage at the date of the tax sale could only have been definitively determined by a survey and professional title examination.
20. Edwin T. Smith, to whom the Collector of Taxes conveyed the so-called "29 acre" Savage parcel, was assessed for it in 1929. The valuation list described the property as "Land at South Beach Tract 39 acres." (Exhibit No. 40) The valuation list for the following year (1930) is in accord (Exhibit No. 41). In 1931, Edwin T. Smith conveyed the property which he had acquired from the Collector of Taxes, describing it as "Land at South Beach consisting of a tract of 29 acres," to the Proprietor's of the New Mattakesset Creeks, a Massachusetts corporation. The deed is recorded in Book 182, Page 161 (Exhibit No. 31).
21. By deed dated February 8, 1932 and recorded in Book 184, Page 80, said corporation conveyed a parcel on the ocean to Nelson C. Hinckley, et al, title to which through mesne conveyances was in Strock Enterprises in 1970.
22. Said corporation, by deed dated July 26, 1937 and recorded in Book 194, Page 499, conveyed a portion of the land said to have been acquired from Edwin T. Smith to Madeleine I. Dinsmore. Title by mesne conveyances and a Probate descended to Dorothy W. Moeller who is the plaintiff in a pending registration proceeding in this Court covering said iand. (Case No. 39156).
23. Said corporation, shortly after the Dinsmore conveyance, conveyed an adjoining parcel to Marcus W. Jernegan by deed dated September 9, 1937 and recorded in Book 195, Page 62. There is a Dukes County Probate (No. D52382) for Mr. Jernegan which gives his heirs as Cameron J. Cook and Margaret H. Kreuger, from whom this case takes its title.
24. Said corporation conveyed to the Martha's Vineyard Flying Club, Inc., by deed dated February 24, 1941 and recorded in Book 203, Page 167, a parcel of land on the east side of Creek Road including in the conveyance whatever interest it might have in the above described premises from the Smith deed. This parcel does not appear to be a portion of locus. An adjoining parcel was conveyed by said corporation to Dorothy P. Gentle, et al, by deed dated March 11, 1953 and recorded in Book 223, Page 544. The title reference is to the Smith deed.
25. In 1971 said corporation, the Proprietors of the New Mattakesset Creek, was revived for a period of one year "for the purpose of conveying assets of the corporation, but not for the purpose for which it was established" (Exhibit No. 26). The corporation was again revived for the purpose of merging into a Massachusetts 156B corporation as shown by a revival certificate issued by the Secretary of the Commonwealth (Exhibit No. 27). The records of the Secretary's office further show that the Proprietors of the New Mattakesset Creeks (sic) and the Successors of the Proprietors of the New Mattakeset Creek Inc., have merged into one surviving corporation to be known as the Successors of the Proprietors of the New Mattakeset Creeks Inc. This certificate is recorded in Book 303, Page 155 (Exhibit No. 28).
26. The Successors of the Proprietors of the New Mattakesset Creek, Inc. conveyed to Dominic Meo III four parcels of land at South Beach by deed dated April 20, 1978 and recorded in Book 355, Page 499, and said grantee conveyed certain of said lots to Lina S. Tepper and Marilyn Barrett by deeds dated October 20, 1978 and October 27, 1978 and recorded in Book 362, Page 287 and Book 363, Page 522 respectively.
27. The surviving corporation then conveyed to the plaintiff, Daniel J. Mullen, an undivided one-fifth interest and to Andrew P. Houlahan an undivided four-fifths interest in the land described in a deed from Edwin T. Smith, dated March 9, 1931 and recorded in Book 182, Page 161 excepting the parcels herein before referred to.
28. So far as appears, there have been no other conveyances out from locus.
29. Leona M. Savage died, a resident of Fayville, Massachusetts, at age 94, in Westborough State Hospital on April 19, 1978. Gerald J. Savage died at the age of 71 as the result of an accident on Huntington Avenue in Boston which occurred on December 20, 1943. Date of death was February 6, 1944. This information appears in death and marriage certificates that were introduced during said hearing before Randall, C. J.
Under the present statutory scheme the taxpayer may redeem his real estate from the tax taking or sale by payment of unpaid real estate taxes, interest and charges at any time prior to foreclosure of his right of redemption administratively pursuant to the provisions of General Laws, c. 60 §79, see Guaranty Mortgage Corp. v. Burlington, 385 Mass. 411 (1982) or as provided in G. L. c. 60 §62, prior to the filing of a petition for judicial foreclosure under G.L. c. 60 §65. It was not always so. Prior to St. 1915, c. 237, the municipality's lien automatically ripened into a complete title two years after a tax sale or taking where there had been no redemption. The harshness of this rule led to a strict enforcement of the taking statutes. Boston v. Barry, 315 Mass. 572 (1944). As was explained by Justice (later Chief Justice) Qua so lucidly in Fall River v. Conanicut Mills, 294 Mass. 98 (1936) at pages 99-100, a case wherein the Court held that the Collector had violated section 44 of said chapter 60, but that said violation did not void the sale:
"In general, tax laws are construed strictly in favor of the taxpayer. Collector of Taxes of Boston v. Revere Building, Inc., 276 Mass. 576 . Before the enactment of what is now that part of §37 just quoted, this principle had been carried so far in relation to tax sales of real estate that failure to comply with statutory requirements, even in minute particulars, invalidated the sale. Charland v. Home for Aged Women, 204 Mass. 563 , 567. Shurtleff v. Potter, 206 Mass. 286 . Conners v. Lowell, 209 Mass. 111 . Koch v. Austin, 225 Mass. 215 . 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 fundarnental changes were made in the effect of sales for collection of taxes. St. 1915, c. 237. See now G. L. (Ter. Ed.) c. 60, §64 et seq. This clause appeared in §17 of the 1915 act. After that revision the sale no longer transferred title at once to the purchaser, but gave him merely a lien which could be enlarged into a complete title only after proceedings in court for foreclosure of the right of redemption. §§1, 3, 4. Jenney v. Tilden, 270 Mass. 92 , 94. Those changes in the statutes might be thought to give additional protection to the taxpayer, so that the former strictness could be relaxed. This does not mean that this provision, which now appears at the end of the present §37 (see St. 1935, c. 269), renders useless or nugatory all those requirements of law, failure to observe which could be found to be neither substantial nor misleading, but it does mean that, when this part of §37 applies, such requirements become directory in character and cease to be conditions precedent to a valid sale."
Section 37 to which Justice Qua referred provides that "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 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." He then went on to write that the circumstances of each case would govern whether an error or irregularity is substantial or misleading. It commonly is a question of fact. Lowell v. Boland, 327 Mass. 300 (1951).
G.L. c. 59 §44 provides that the list made by the assessors shall exhibit the valuation and assessment of the estates of inhabitants and nonresidents and shall contain "the description of their estate." Tax foreclosure proceedings have sometimes been attacked on the ground that the tax on account of which the sale was made, was invalid because there was not a sufficient description of the property in the valuation list. Such a case was Roberts v. Welsh, 192 Mass. 278 , 280 (1906) where the court explained that such a description was enough "if it fairly designates, for the information of those interested, the property intended to be taxed." The principal concern of the Roberts Court as to this problem was whether the owner would be misled. Bemis v. Caldwell, 143 Mass. 299 (1887).
Description also is important in the case of a sale for the nonpayment of taxes. G.L. c. 60 §43 [Note 4] describes the procedure the Collector is to follow in the case of a sale or taking. Section 40 of said chapter mandates that the notice by publication shall contain "a substantially accurate description of the several rights, lots or divisions of the land to be sold." The notice also is to contain "the amount of the tax assessed each, and the names of all owners known to the collector." The statute further specifies in section 45 the provisions to be set forth in the tax deed, but it is silent as to the description of the premises to be conveyed. Even without a statutory mandate as to description in a tax deed, the same principles apply to it as to any other deed in that the description of the premises must not be so vague as to be uncertain. See McHale v. Treworgy, 325 Mass. 381 (1950). If there is an ambiguity in the description in a deed given in a regular, non tax conveyance, extrinsic evidence is admissible as to make certain the language used by the draftsman. Ellis v. Wingate, 338 Mass. 481 (1959) Connors v. Lowell, 209 Mass. 111 , 116 (1911). The same principle should apply to a tax deed if the taxpayer or one examining the Registry records would not be misled. As to tax deeds in particular the reported cases generally treat the notice and deed together and apply to each the standard of a substantially accurate description. "It (i.e. the description) is enough if it fairly designates the property for the information of those interested (citations omitted). The purpose of the rule is that owners and prospective purchasers may be sure what property is being sold." Franklin v. Metcalfe, 307 Mass. 386 , 389-390 (1940). Ordinarily the question of whether the description is sufficient is a question of fact for the judge. Boston v. Boston Port Development Co., 308 Mass. 72 , 78 (1941). And in determining that question of fact the trier of fact may weigh the nature of the community at the time when the assessment was made. Galligan v. Everett, 259 Mass. 94 (1927).
In the context of the community in which it was made at the time it was made, the description in the valuation list, the notice of sale and the tax deed is sufficiently accurate to withstand attack. Edgartown at the brink of the Great Depression was a town with apopulation small in number and a large undeveloped acreage. There was local awareness of the Stewart farm and ownership by Leona Savage of the portion thereof set off to her husband, but it appears that local people did not know of her ownership of the Willoughby and Vincent tracts. The history of the chain of title to land of the South Beach Company as shown on Plan No. 3 (Exhibit No. 29) and of the description on the valuation list bear a striking resemblance. The correlation between the area assessed and the record title impels the conclusion that the thirty-nine acres (with the dwelling house and barn) represent the area set off to Gerald J. Savage in the partition. It is not as clear that the lots assessed in some years with the tract acreage represent lots acquired in only the Stewart parcel. They may also include lots in the Willoughby and Vincent tracts which apparently also were subdivided. These lots, however, properly were separately assessed for the year for which the properties were taken (see Marlborough v. Poorvu, 305 Mass. 124 (1940)) so this need not be definitively determined. The continued reference to the South Beach Land Company in conjunction with the thirty-nine acres pinpoints the location shown on the No. 3 plan. The defendants argue that South Beach covers an extensive area, and there is no way to locate the boundaries. This argument overlooks the reference to the South Beach Land Company in the description which locates the area in question with sufficient particularity for present purposes. It is significant also that the 1908 designation of the Willoughby and Creek Field areas assessed to Leona M. Fortier do not re-appear in the same form so either there is an omitted assessment or the tracts were broken down into the lots comprising them, and those not theretofore conveyed out later assessed to Mrs. Savage.
In Galligan v. Everett, 259 Mass. 94 (1927) it was said at page 98 in overruling a master's conclusion based on Connors v. Lowell, 209 Mass. 111 (1911) that the description was bad as not giving the side of the street on which it was located.
"The description of land situated as this land is, in a small town, to the owner, the bidder and the inhabitants of the town isdefinite, and can be located with substantial certainty, and there is no possible obscurity as to the side of the street upon which the land is located."
This quotation is peculiarly apt to the Edgartown of 1928. The townspeople were familiar with the Savage property and aware of the partition piece. Mrs. Savage could have been in no doubt as to what was intended since she previously had redeemed the property from a prior taking for the non-payment of taxes (Exhibit Nos. 23 and 24). This case is unique to its time and locality and is a product of an era which has now passed. The other descriptions in the notice of sale of non locus properties are no more elaborate, if as definitive, as that of locus.
The Savages seem to have been "wheeler-dealers" in real estate, and it was beyond the capabilities of the local officials to prepare the description for which the defendants now contend. To fashion a precise description more informative than that used would have required the town to engage both a title examiner and surveyor at a time when the number of professional people on the island was limited. Based on these considerations, I find and rule that while the description in the valuation list and notice is minimal, it meets the standards set forth as follows in Lowell v. Boland, 327 Mass. 300 , 302 (1951):
"It has been established that whether or not an error in such a description is substantial or misleading is commonly a question of fact. Springfield v. Arcade Malleable Iron Co., 285 Mass. 154 , 155-156. Boston v. Lynch, 304 Mass. 272 , 275. McHale v. Treworgy, 325 Mass. 381 , 384. It is enough if the description is reasonably accurate and fairly designates the property for the information of those interested. Franklin v. Metcalfe, 307 Mass. 386 , 389. Boston v. Boston Port Development Co., 308 Mass. 72 , 78. But "it need not be so detailed as to point out visually its precise boundaries so that an utter stranger unacquainted with the locality and ignorant of the neighbors could find it without inquiry." Conners v. Lowell, 209 Mass. 111 , 120.
There was an additional problem with the tax deed to Mr. Smith (Exhibit No. 25) in that it incorrectly described the tract as having twenty-nine acres, rather than the thirty-nine acres consistently given in the assessment. On all the evidence, I find and rule that this is a scrivener's error, that the figure the parties intended to have inserted was "thirtynine" in reference to the acreage, that parol evidence is admissible to explain this ambiguity and the same error in the deed from Mr. Smith to the Proprietors (Exhibit No. 31) McHale v. Treworgy, 325 Mass. 381 (1950) is distinguishable.
The defendants contend that the tax sale proceedings also are void by reason of the several other errors or irregularities: i.e., lack of evidence of a proper demand, there being no collector's affidavit on record as authorized, but not required by G.L. c. 60 §57, the failure of the notice by publication to state the exact amount due from the taxpayer, lack of proof as to the date on which demand was made, the absence of evidence other than the recital in the Collector's deed that there was notice by posting, and the insertion of language as to assessments without inclusion of a total amount due. As to the latter, the handwritten insertion appears to be a boiler plate addition inapplicable to the present proceedings, it being evident that no town improvements had been made to locus. It does no violence to the taxpayer's rights to disregard the paragraph inserted. Some of the questions which the defendants raise about the validity of the proceedings flow from their argument that the tax deed is void on its face and not entitled to the evidentiary assistance of G.L. c. 60 §45. I have found and ruled, however, that the deed is valid. The Savages were experienced in real estate taxes, and Mrs. Savage previously had redeemed South Beach properties from a prior taking. As Justice Grant wrote in Pass v. Seekonk, 4 Mass. App. Ct. 447 , 449 (1976) :
"Whatever might have been the effect of an irregular recitation in a collector's deed under earlier provisions of law (citations omitted), it is clear that no such result as that contended for could properly be reached under the provisions of law applicable to the collector's deed in this case. That has been so ever since the insertion by St. 1915, c. 237, §17 (and see St. 1918, c. 257, §§46 and 47), of the provision now found in the last sentence of G.L. c. 60, §37, which read that "[n]o tax title . . . shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading."
I find and rule that no errors or irregularities in the proceedings of either the collector or the assessors are substantial or misleading. Bartevian v. Cullen, 369 Mass. 819 , 824 (1976)
The Court notes that there might be a question as to the amount of taxes for which the 39 acre tract was sold, not on the grounds raised by the defendants, but because the amount appears to include both those attributable to locus and those covering the lots containing 6 acres 22,771 feet. Since the parties have not argued this specific question, and because additions to the tax account not now available with the lapse of time may explain the apparent error, I place no weight upon it. However, in any event I find it neither substantial nor misleading in the context of this case. What was said in Pixley v. Pixley, 164 Mass. 335 , 338 (1895) is appropriate here as well; the deed is informal and less specific than is desirable, but it is intelligible, and it conveyed the title which it was intended to convey.
There remains the question of the standing of the plaintiffs to bring this complaint. I have found and ruled that the deed to Edwin T. Smith was valid. I now also so find and rule that the revival and merger of the corporations in the chain of title were valid for purposes of the conveyance of title. This case is unusual in that those claiming under the tax deed delayed in bringing foreclosure proceedings (other than the Moeller registration proceedings which would serve the same purpose if consummated) for so many years after the tax sale and yet there were several conveyances out. This state of the tax title necessitated the joinder of several plaintiffs. Conversely, Leona M. Savage though versed in real estate transactions died only recently, but so far as appears she never sought to attack the tax title or ever to redeem it. While in a State Hospital at the time of her death, there were many years after the tax proceedings in which either she or her husband for a shorter period of time might have taken action. This lapse of time for which the plaintiffs, or more accurately, their predecessors, must bear responsibility has occasioned difficulties of proof for the parties and the Court.
For purposes of the questions presently before the Court, I find and rule that the plaintiffs have standing to maintain the foreclosure petition, other than Stephen C. Gentle and Dorothy P. Gentle as to whom additional proof of standing will be required when further hearings are held on the question of the defendants' right to redeem. At this stage of the case, it is not necessary to rule definitively thereon.
On all the evidence, therefore, I find and rule that the description in the assessment, the notice of sale and the tax deed is substantially accurate, that it fairly designated the property for the information of those interested, that the owner of the real estate, Leona M. Savage, must have been aware of the tax sale both prior to the date thereof, and in the many years which have elapsed since such sale, that all the errors and irregularities of which the defendants complain are neither substantial nor misleading under the circumstances here within the meaning of G.L. c. 60 §37, and that the tax title proceedings were valid.
The plaintiffs submitted a request for 46 findings of fact, but in accordance with the mandate set forth in Markell v. Sidney B. Pfeifer Foundation, Inc., Mass. App. Ct. (1980) [Note 5] I have made my own findings of fact and take no action on the plaintiffs' request. The defendant, William J. Devine has requested 46 rulings of law on which the Court must act in accordance with DiGesse v. Columbia Pontiac Co., Inc., 369 Mass. 99 (1975). I have allowed requests 14, 21, and 39.
I have denied requests numbered 1, 3, 5, 7, 9, 11, 15, 17, 33, 35, 37, 42, 44, and 45, as being inconsistent with the facts I have found.
I have denied requests numbered 2, 4, 6, 8, 10, 12, 16, 18, 20, 22, 28, 32, 34, 36, 38, 41, 43 and 46 inasmuch as I rule that the findings set forth therein are not required as a matter of law. I further deny request No. 13 since it does not correctly state the holding of Pass v. Seekonk, 4 Mass. App. Ct. 447 (1976). I find and rule that it would have been impossible to determine the area of the partition parcel at South Beach as of the date of the tax sale (and today) without a definitive title examination and survey, and that in any event, the actual area is immaterial in the resolution of the question as to whether any error or irregularities are substantial or misleading and, therefore, I deny requests numbered 19, 23, 24, 25, 26 and 27. It is apparent that there is a scrivener's error in the Tax Collector's deed and that, therefore, the evidence both warrants and requires a finding that it is defective on its face as set forth in request 29, 30, 31 and 40, but since I have found that no error is substantial or misleading, including the typographical one, I treat the defect as immaterial.
[Note 1] Unless the context otherwise requires, all references herein are to said Registry of Deeds.
[Note 2] Said line was located on the plan by counsel for the plaintiffs and confirmed by their surveyor.
[Note 3] The Court is aware that much of locus has been lost to erosion. This is apparent from an assessors' plan not in evidence, but noted by theCourt in the abstract in said Registration Case No. 39156.
[Note 4] The same language is used in section 54 as to a taking for the nonpayment of taxes.
[Note 5] Mass. App. Ct. Adv. Sh. (1980) 557.