MISC 114556

January 26, 1989

Barnstable, ss.



Thomas K. Warner, a resident of New York state, alleging that he first learned of a sheriff's sale of his Mashpee real estate when he queried the Collector of Taxes of said town about his tax bill, seeks by this civil action in the nature of a writ of entry, to recover possession thereof under G.L. c. 237 and to obtain declaratory relief under G.L. c. 231A. Conversely the defendant contends that the sheriff properly sold the locus pursuant to the applicable statutory steps and that he, the judgment creditor, as purchaser at the sheriff's sale, holds title to the locus; that the plaintiff knew of the sale and that the complaint is an attempt to circumvent the one year statute of limitations. Additionally, the defendant pleaded the affirmative defenses of laches and unclean hands.

A motion for summary judgment made by the plaintiff having been denied on March 10, 1986, a trial was held at the Land Court on November 18, 1988 at which the testimony was electronically transcribed. The only witnesses were the plaintiff and the defendant; however, the deputy sheriff who conducted the sale of the locus having died, his deposition was admitted as an exhibit. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows: [Note 1]

1. The plaintiff, the defendant and others were associates in an ill starred venture buying and selling paper products which ultimately resulted in litigation in the New York state courts in which the defendant and another prevailed.

2. An action was brought in the Barnstable Superior Court on April 14, 1980 to recover on the New York judgment.

3. An ex parte attachment was approved by a Superior Court justice and recorded. The deputy sheriff's return shows the attachment made against locus (i.e., the premises described in a deed recorded with Barnstable Deeds, Book 2372, Page 333) on April 15, 1980 and recites:

. . . afterward, on the same day at 3:40 p.m. I deposited a true and attested copy of this writ, with my said attachment endorsed thereon at the said Registry, and afterward, on the same day I mailed, via U.S. Mail, a true and attested copy of this writ, with my said attachment endorsed thereon to Thomas K. Warner at his last and usual place of abode as above given.

The last and usual place of abode as above given was Box 541, Stone Ridge, New York (Exhibit No. 1).

4. The plaintiff thereafter was served with a summons in New York at Leggett Road, Stone Ridge on May 5, 1980. Counsel for the defendant also forwarded to him relevant papers at this address (Exhibit No. 4), but the plaintiff failed to appear in the Superior Court action and a default judgment in the amount of $38,996.27 with interest from April 14, 1980 in the amount of $762.59 was entered on July 11, 1980.

5. An execution dated August 13, 1980 was issued by the Barnstable Superior Court in the amount of $40,050.42, together with costs of $5.25 making a total of $40,095.67 which execution refers to the judgment entered on July 11, 1980 (Exhibit No. 2).

6. The deputy sheriff then proceeded to levy on the property by filing the execution for record with said Deeds on August 19, 1980 (Exhibit No. 5). The deputy sheriff who worked initially on the sale, the late William E. Foster, then suffered acute medical problems (a vascular accident resulting in the amputation of his left leg) and was away from work for a period of approximately thi ty (30) days. During his absence another deputy sheriff took the steps to consummate the sale and a demand and notice of sale was sent to the plaintiff. There was publication in the Cape Cod Times on October 1, October 9 and October 16, 1980 with the sale itself scheduled for November 10, 1980.

7. The execution describes the plaintiff only as being "of New York, New York" which is consistent with the description in both the New York and Massachusetts pleadings which give his residence as 300 East 59th Street in New York, but with a mailing address in Stone Ridge, New York. It was the latter address which the sheriff used in notifying the plaintiff of the attachment. However, the address used in attempting to notify the judgment debtor of the sheriff's sale was taken from the deed to the plaintiff from Thomas K. Warner, et al, Trustees, to Thomas K. Warner, dated June 25, 1976 and duly recorded in Book 2372, Page 333 (Exhibit No. 3). The deed predated the litigation, and the address used therein, 645 Madison Avenue, New York, New York, was a business address in Manhattan. The plaintiff had vacated that space in 1979 when his business was moved to the Graybar Building about three years after the deed had been executed. The sheriff's sale was held as scheduled on November 10, 1980 without the plaintiff receiving notice, and the sheriff's deed to the defendant dated November 19, 1980 was duly recorded in Book 3212, Page 138 (Exhibit No. 8). At the sale only Mr. Walker, his attorney and the deputy sheriff were present.

8. The sale had been preceded by the necessary advertising (Exhibits Nos. 6 and 7). The deputy sheriff had attempted to serve the plaintiff by sending him notice at the Madision Avenue address and during his deposition stated "to the best of my knowledge, neither green card nor certified mail ever came back." They were not in the jacket kept by the deputy sheriff's office in the usual course of their office. However, an envelope dated November 4, 1980 and addressed to Thomas Warner with a return address for the Barnstable County Sheriff's Office was returned to the office with a Post Office stamp "MOVED, NOT FORWARDABLE, NEW YORK, NY. 10022, NOT IN DIRECTORY". In the envelope was the notice of sale required by the statute.

9. The plaintiff did receive notice of the Barnstable County litigation and of the attachment but made no effort to appear therein or subsequently to determine its outcome. I specifically find and rule that he did not receive notice, actual or constructive, of the sale. Finally, however, in 1983 he wrote to the Collector of Taxes in Mashpee to inquire about the status of his tax bill for the premises in question (Exhibit No. 13) and received a reply from the Collector dated June 7, 1983 (Exhibit No. 14) that according to the records of the Mashpee Tax Collector, the parcels in question "were recorded in the name of Herbert H. Walker, 321 East 54th Street, New York, New York, 10022, on December 19, 1980, as the owner."

10. It is not disputed that the defendant has paid the real estate taxes at least since the period beginning with the second payment for the fiscal year ending June 30, 1982 (Exhibits Nos. 15A, 15B and 15C).

The plaintiff has not raised a question about the timing of the judgment and execution, although it would appear that there is a serious issue as to whether the execution was levied seasonably. See McGrath v. Worcester County National Bank, 3 Mass. App. Ct. 599 (1975) and Still Associates, Inc. v. Porter, 24 Mass. App. Ct. 26 (1987). Since it has not been raised by counsel, I have not discussed this aspect of the case, but I move instead directly to the constitutional issues posed by the plaintiff.

The statutes covering post-judgment remedies of judgment creditors are framed in such a way as to protect the constitutional rights of the debtor. In G.L. c.236, §26 provision is made for the sale on execution of the land and rights described in §1 of c. 236. Section 27 provides for the sale by an authorized officer by a public auction to the highest bidder. More importantly, there is a statutory provision with notice of the sale to be given to the judgment debtor. Section 28 reads as follows:

§ 28. Notice of Sale.

The officer, thirty days at least before the sale, shall deliver to the debtor, if found within his precinct, a written notice of the time and place of sale and shall post such a notice in a public place in the town where the land lies and also in two adjoining towns, if there are so many in the county. The officer shall also publish such a notice once in each of three successi ve weeks, the first publication to be not less than twenty-one days before the day of the sale, in a newspaper published in the town where the land lies.

In addition, §44 provides the standards by which notice is to be served. It reads as follows:

§ 44. Notice, How Served.

Notice to the debtor under this chapter may be served upon him personally or left at his last and usual place of abode. If the debtor does not reside within the precinct of the officer serving the execution, and is not found by him thereon, such officer shall, in addition to any other service required by law, send by mail, post paid and addressed to the debtor at his residence as described in the execution, a copy of any notice service of which upon him would be required if he were found within such precinct.

It is not free from doubt as to whether the second sentence of section 44 applies to non-resident debtors but only to those without the officer's precinct but within the Commonwealth; however, the discussion by Justice O'Connor in Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983) suggests that the Supreme Court of the United States no longer will make a distinction on this basis, and accordingly I find and rule that the language is applicable to a non-resident. Once the various provisions of the statute are reviewed, it seems to me clear that the statute is not subject to constitutional objections. However, the statute as applied in the present case does raise a serious constitutional issue, and I find and rule that the mistake of the deputy sheriff in sending the required statutory notice to the present plaintiff at the address set forth in the deed, rather than that in the Court papers, deprived plaintiff of procedural due process and that the sale must be set aside. In Mennonite the Supreme Court of the United States struck down an Indiana provision which failed to provide notice to mortgagees of property that was to be sold for non-payment of taxes. After a review of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) and cases which followed it, the Court held that a mortgagee had a legally protected property interest and that accordingly he was entitled to notice reasonably calculated to apprise him of a pending tax sale. The Massachusetts statute meets this test but as applied in this particular case the actions taken by the deputy sheriff to implement the statutory provisions were constitutionally infirm. As Justice O'Connor stated at page 800, "[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable." There was no problem in the present case as to the name of the judgment debtor and his address clearly was reasonably attainable from the Court papers since indeed it was used to give notice of the attachment by the deputy sheriff as well as by counsel for the plaintiff.

The Supreme Judicial Court has recently had occasion to comment on Mennonite in a dictum relating to low value tax foreclosures. See Christian v. Mooney, 400 Mass. 753 (1988) where Justice Wilkins said in a footnote, "[t]he due process considerations stated in the Mennonite case cast some doubt at least on the reasoning in Guaranty Mortgage Corp. v. Burlington, 385 Mass. 411 , 419 (1982) (concerning the sale of low value land for nonpayment of taxes of which mortgagees of record were not notified)." More recently, the Appeals Court for reasons very similar to those which are applicable here, affirmed the action of the Land Court in vacating the foreclosure of a taxpayer's equity of redemption, because the City of Boston had made minimal efforts to locate the owners of the real estate prior to the foreclosure. In the course of the opinion, Justice Kaplan stated, "[t]here was surely a duty to pursue any suggestive source or piece of information disclosed in the papers the city had immediately in hand. The cases, indeed, suggest a duty according to particular circumstances to go further and consult public records or make other ordinary, simple inquiries." Boston v. James, 26 Mass. App. Ct. 625 , 629 (1988).

There can be little argument here that where the deputy sheriff earlier had successfully served the plaintiff at the mailing address given in the Court papers as Stone Ridge, New York, the earlier address from the deed should not have been used to notify him of the sale, and that accordingly the sale was constitutionally infirm.

On all the evidence, therefore, I find and rule that the notice given by the deputy sheriff of the sale was sent to the wrong address, that his efforts did not meet the constitutional standards required to validate the sale to the judgment creditor and that accordingly the sale must be set aside and declared null and void, and the deed delivered pursuant thereof of no force and effect. The result is unfortunate in that the defendant having prevailed in the Courts of New York and Massachusetts and obtained a judgment against the plaintiff for a substantial sum of money has not as yet been able to realize one penny thereon. I cannot, however, find any evidence of laches which would bar a finding for the plaintiff.

I decline to rule on the findings of fact and rulings of law requested both by the plaintiff and the defendant since I have made my own extensive findings and rulings.

Judgment accordingly.


[Note 1] As used herein the "plaintiff" refers to the present plaintiff, the defendant in the Superior Court action. Similarly, the "defendant" refers to the defendant herein, the plaintiff in the Superior Court action.