STEPHEN M. CAMPOBASSO, SUSAN J. BLISS and DONALD P. COURTURIER vs. EDMUND O. VACHON and THE CITY OF LEOMINSTER.

This is a complaint brought by Stephen M. CampoBasso of Lancaster, Worcester County, Susan J. Bliss of North Brookfield in said County, and Donald P. Courturier, of Warren, in Hampshire County, seeking a determination by this Court that a certain instrument of taking made in July of 1939 by the Collector of Taxes of the City of Leominster (the "City") and the deed given pursuant to the low value tax taking to the City, there being no other purchaser at the sale, as well as the deed from said City to the defendant Edmund O. Vachon, dated September 29, 1966 (Exhibits Nos. 3, 16 and 18), are invalid. The plaintiffs and Vachon have entered into a stipulation which will protect the interest of the latter, but the City contests the position of the plaintiffs on the grounds that the tax taking and deed were legally sufficient, that the plaintiffs' action is barred by laches and that the City in any event has acquired title by adverse possession to the disputed premises. After the complaint was filed in this Court on June 25, 1986, the legislature enacted St. 1986, chapter 283 which inserted chapter 60, section 80C in the General Laws, and the City now also relies on said statute of limitations. The plaintiffs have not borne their burden of proof, and I find for the City in this litigation.

A trial was held at the Land Court on February 1, 1989 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial, plaintiff CampoBasso and David L. Delaney, a Land Court Examiner, testified for the plaintiffs. The defendant introduced by an agreement the affidavit of William Thibodeau, the Acting Fire Chief of the City of Leominster. Also introduced in evidence on behalf of the defendants was the deposition of Muriel Cutler, who is approximately 81 years of age and for whom it would have been a hardship to come to Boston to testify.

More specifically, on all the evidence I find and rule as follows:

1. The Planning Department of the City of Leominster prepared a study of tax title land in that municipality dated March, 1984, which came to the attention of the plaintiff Stephen M. CampoBasso ("CampoBasso"), who is a member of the Massachusetts Bar. After consultation with the Planning Department of the City, he offered to purchase the premises covered by the tax title now in controversy for the amount of $25,000 (Exhibit No. 26) or $30,000, as testified by CampoBasso. The City Council acted favorably on CampoBasso's request, but the Mayor vetoed the transaction and his action prevailed. There was no explanation by the Mayor for the reason for the veto, but it presumably was because of the sensitive location of the locus in relationship to the Water Protection District.

2. CampoBasso, not realizing that the low value tax foreclosure of the tax payer's title had been completed, sought to locate the parties entitled to any rights of redemption whose names, in any event, he would have had to furnish to the Land Court if he had been able to complete the City of Leominster purchase, and then elected to bring a proceeding pursuant to the provisions of G.L. c. 60, §80B. It was in connection with such search that the other plaintiffs, Bliss and Courturier, were located.

3. CampoBasso then obtained from the other plaintiffs a deed conveying to him all their right, title and interest in and to a certain tract of land located on the southwesterly side of Wachusett Street and the northwesterly side of Peters Street in Leominster, which deed was dated December 30, 1985 and recorded on January 27, 1986 with Worcester North District Registry of Deeds, to which office all recording references herein apply (Exhibit No. 6).

4. At the same time CampoBasso obtained a second deed from the other plaintiffs dated the same day and recorded also on January 27, 1986 which contained a more extensive description of the granted premises (Exhibit No. 5). Each deed was defective in that the acknowledgements bear no date and the ten year statute for the elimination of such defects has not run. See G.L. c. 184, §24.

5. There is no dispute that Grace G. Powers formerly owned the premises, the title to which is here in contention. Mrs. Powers died December 11, 1965, intestate (Exhibit No. 1). No probate has been had of her estate. It would appear, however, that she had two sons. Her younger son, Ernest Powers is deceased, and it appears that he was survived by issue; however, this portion of the Powers family tree was not pursued by CampoBasso. Grace Powers' other son, Harold, died testate and devised all his estate to his wife, Edith M. Powers. His will reveals that he had children of his own as well as adopted children (Exhibit No. 2). Edith M. Powers was Harold's second wife and the cousin of his first wife. She survived Harold and left the residue of her estate to Courturier and Bliss in equal shares, neither of whom was related to members of the Powers family (Exhibit No. 3). It is because of the lack of relationship to Grace Powers that I have placed little weight on the plaintiff Bliss' affidavit of kinship (Exhibit No. 4).

6. The valuation lists for the City of Leominster in 1936, 1937, 1938 and 1939 list several parcels of land as being assessed to Grace G. Powers, including the so-called Nichols Pasture of 42 acres bearing the further identification of 3-69-3 (Exhibits Nos. 9 to 13 inclusive). Mrs. Powers made a conscious decision not to pay any of the taxes which she owed, other than those on her home and the records of the City as to its tax titles show five parcels including locus which were ultimately taken by the City (Exhibit No. 15) and have either been transferred to the Conservation Commission or apparently are still held by the City. The tax title account 1907 covers premises assessed to Grace G. Powers in 1939. The legal advertisement of July 1, 1939 described the property as "also land containing 42 acres, more or less, Nichols Pasture". The statutory notices were posted on July 5, 1939, the property was taken on July 25 of that year and the taking was recorded on August 18, 1939 in Book 557, Page 100 (Exhibits Nos. 14 and 21).

7. Subsequently, the Commissioner of Corporations and Taxation executed an affidavit of law value covering the locus and several other properties of Grace G. Powers; the affidavit was recorded in Book 577, Page 211 (Exhibit No. 22). Affixed to the affidavit is the certificate of the Leominster City Treasurer as to the taking of the 42 acre Nichols parcel, the 1938 commitment of the taxes, the demand, and the advertisement. The then Treasurer of the City of Leominster conducted a sale at public auction of many parcels of tax title land including the 42 acre piece known as "Nichols Pasture" and no person appearing or bidding for said land, the Treasurer purchased it for the City of Leominster. The deed evidencing such transaction is recorded in Book 577, Page 646 (Exhibit No. 23).

8. The records of the Leominster Treasurer's Office show the 42 acre piece having been taken by the City, describe it as "Nichols Pasture" and give the deed reference. In pencil appears the sale to Vachon of three and one-half acres for $350.00; beside the reference to "Nichols Pasture" has been written "water shed" and an admonition "do not sell - for city purposes, fire and police use - radio tower" (Exhibit No. 15).

9. After the low value tax foreclosures were completed, the City of Leominster Fire and Police Departments applied to the Office of the Inspector of Buildings for a building permit to construct a communications tower on the locus (Exhibit No. 20). The radio communications tower has been maintained and used as such since that time to the present and is located on the property which is the subject of the current litigation. It is situated midway on the frontage on Wachusett Street and approximately 20 feet back from the street sideline, and consists of a transmission box and a tower (Exhibit No. 30).

10. The City conveyed a portion of the premises taken from Mrs. Powers to Edmund O. Vachon, by deed dated September 29, 1966 and recorded in Book 997, Page 266, the sale to a bonafide purchaser being an additional exercise of dominion.

11. There are stone walls around a portion of the premises. It is clear that they have not been used as a pasture since the acquisition by the City, but the owner thereof at the time of the taking knew to which property the description used in the tax taking referred and had paid the taxes for one year at least prior to the other taking. While the premises are at least partially wooded today, they may well have been pasture land in the earlier part of this century.

The plaintiffs contend that the tax taking and the proceedings subsequent thereto were defective because of the description of the property used in the assessment for tax taking and the subsequent transactions, i.e., "42 acres, more or less, Nichols Pasture". In determining such a question, the Courts look first to the question as to whether the description was so insufficient as to constitute an irregularity which is "substantial" or "misleading" within the meaning of G.L. c. 60, §37 as amended. Krueger v. Devine, 18 Mass. App. Ct. 397 , 398 (1984). Here as in the case last cited, Mrs. Powers was aware of the tax taking and knew that it and others made at the same time encompassed her various real estate holdings. The time frame was the end of the Great Depression, prior to the eventual rescue of the economy by World War II, and she, a widow, was without sufficient assets to pay her several tax bills, other than that covering her home. She made a conscious decision not to redeem the property. She lived for many years after the tax taking not having died until 1965, nearly thirty years later. If she had wanted to redeem, she had ample time to do so although technically the foreclosure was completed. In any event, an attack on the adequacy of the description would better have come from the tax payer under these circumstances than from others remote to the situation at the time of the action by the City.

As Justice Kass said in Krueger at page 402, "[w]hen the validity of tax titles is put in question long after the event, it is appropriate for the judge, because of the difficulties of proof and the desirability of administrative finality, to weigh the factor of time against those making the challenge." In the present case I have done so, and I have concluded that the parties familiar with the property and with the designation "Nichols Pasture" knew to what that nomenclature referred. It is too late to attack it now.

Moreover, the legislature has agreed since the decision in Krueger that there should be a statute of limitations on technical defects in tax title proceedings. G.L. c. 60, §80C, to which reference has been made, provides as follows:

§80C. Twenty Year Time Limit for Challenging Conveyance Where Notice, Procedure, Instrument or Record Defective.

When any city or town has conveyed or sold any land under section seventy-nine or section eighty by an instrument in writing conveying or purporting to convey suchland, and said instrument is duly recorded in the registry of deeds for the district wherein such land is situated and a period of twenty years elapses after the instrument is accepted for record, and the notice or procedure for the taking and sale or conveyance under this chapter or the instrument or record thereof because of a defect, irregularity, or omission, fails to comply in any respect with any requirement of law relating thereto or the instrument or record thereof shall, notwithstanding such defects, irregularities, or omissions be effective for all purposes to the same extent as though such notice or procedure or the instrument or record thereof had originally not been subject to any such defects, irregularities, or omissions, unless within said period of twenty years a proceeding is commenced on account of such defect, irregularity, or omission and notice thereof is duly recorded in said registry of deeds and indexed and noted on the margin of said instrument of conveyance and in the event of such proceeding, unless relief is thereby in due course granted. (Added by 1986, 283, § 1, approved, with emergency preamble, July 21, 1986; by § 2 applicable to instruments recorded prior to effective date of this act.)

I previously have decided and the Supreme Judicial Court has concurred that § 80C does not help one where the original tax taking was made from a party who had no title. See Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 (1987). The statute is directed, however, at procedural irregularities, and it appears that it should cut off claims based on the inadequacy of a description where on the facts of a particular case at least the argument is technical only, and there is no showing of prejudice.

The City also claims title by adverse possession, and its title has been established on such grounds to a portion of the premises, both from the construction of the communications tower and its maintenance and the sale of a portion of the premises to Mr. Vachon. However, much of the remainder of the 42 acres is still undeveloped, and there being no conveyance to the City with a metes and bounds description of the entire tract, the doctrine of Dow v. Dow, 243 Mass. 587 (1923) and Norton v. West, 8 Mass. App. Ct. 348 (1979) where color of title as an aid to such a claim do not apply.

On all the evidence, I find and rule that the tax title foreclosure proceedings of the City of Leominster against Grace G. Powers were valid, that she knew of the taking and made an election not to pay the taxes which were then due, that the description in the taking and in the subsequent tax title documents was neither substantial nor misleading even should it be considered an irregularity which I do not so find under all the circumstances here. I further find and rule that the City has occupied a portion of the premises which it acquired for the exercise of its taking powers and conveyed a second parcel, and that it does not, however, have the benefit of the doctrine of color of title. I further find and rule that the provisions of G.L. c. 60, §80C perfect any procedural irregularities in the tax title actions of the City.

In an action in the nature of a writ of entry into which the present proceeding falls, the burden is on the plaintiff to prove its title. See Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 (1987). The plaintiffs' title appears to encompass only an undivided one-half interest in the subject premises. There is no probate for the estate of Grace G. Powers which is a defect, and the cause of uncertainty as to the exact interest in locus which plaintiffs are entitled to claim. However, it appears on the documents before me that they have sufficient title to challenge the tax taking, and the City has made no claim otherwise.

Judgment accordingly.