MISC 126377

August 11, 1989

Essex, ss.



The Plaintiffs filed this action on January 19, 1988 seeking a declaration that tax takings by the Town of Methuen ("Town") in 1939 and 1944 of a certain parcel of property consisting of approximately four (4±) acres, located off of Pleasant Valley Street in Methuen ("Batty Lot" or "Lot"), are null and void, and that the Plaintiffs hold the fee interest in such property free of any and all rights in favor of the Defendants Knightly, their heirs or legal representatives.

The matter was tried in the Land Court on March 14, 1989, at which time all testimony was recorded and later transcribed by a court-appointed reporter. Three witnesses testified and seventeen exhibits were introduced into evidence. At the close of the Plaintiffs' case, the Defendants brought a motion for an order dismissing the Plaintiffs' petition, which motion was taken under advisement and is now considered herein.

On all of the evidence, I find as follows:

1. On March 14, 1925, Angelina Lamontagne, mother of the Plaintiffs, Joseph R. W. Lamontagne ("Joseph"), Lena Vitale ("Lena"), Blanche L. Silva ("Blanche") and Rose Alba Lamontagne ("Rose Alba"), and wife of the Plaintiff, Remi Lamontagne ("Remi"), acquired title to the Batty Lot. This conveyance is evidenced by a deed from one Jeremiah T. Harrigan, recorded at Book 510, Page 9 in the Essex North District Registry of Deeds [Note 1] (Exhibit No. 1).

2. Joseph, Lena, Blanche, Rose Alba and their parents resided in a modest structure located on the Batty Lot from approximately 1923 to some time in the latter part of 1928. At this time, Remi Lamontagne placed Joseph, Blanche and Lena in Saint Ann's Orphanage ("Orphanage") in Methuen. [Note 2] Joseph remained at the Orphanage until 1931 or 1932, at which time he was approximately thirteen (13) years old. He then moved in with an uncle residing in West Andover, Massachusetts. Blanche and Lena resided at the Orphanage until approximately 1933, Blanche then being about sixteen (16) years of age and Lena being about nineteen (19) years of age.

3. On August 27, 1928, Angelina Lamontagne died intestate (See Exhibit No. 13), leaving the Batty Lot. In the probate of her estate, the Lot, appraised at a value of $600.00, was her only listed asset. The probate of Angelina's estate (See Exhibit No. 2) established that, upon her death, the Batty Lot was in her husband and children.

4. Remi Lamontagne died on October 14, 1930 (See Exhibit No. 14). There is no evidence in the record to indicate that his estate was ever probated. Rose Alba Lamontagne died some time thereafter in the 1930's.

5. On or about June 24, 1939, the Batty Lot was taken by the Town for nonpayment of taxes which had been assessed to Remi Lamontagne for the year 1937. This taking is evidenced by an instrument recorded at Book 624, Page 409 (Exhibit No. 3). At no time prior to the taking did Joseph, Blanche or Lena receive actual notice that real estate taxes on the property were due or outstanding, or that such property was the subject of a tax taking by the Town. At this time, however, they may have been on constructive notice of the same.

6. From 1940 to 1945, Joseph R. W. Lamontagne served in the United States Army, eighteen months of such service having been spent overseas.

7. On or about April 14, 1942, an Affidavit to Foreclose Tax Title Land of Low Value (Exhibit No. 4) was issued relative to the Batty Lot. This Affidavit, recorded at Book 650, Page 245, evidences the Commissioner's compliance with the notice requirements set forth under G.L. c. 60, §79.

8. By deed dated June 22, 1942, recorded at Book 652, Page 78 (Exhibit No. 6), the Town conveyed the Batty Lot to Michael Silva, brother-in-law of the Plaintiff, Blanche L. Silva.

9. On or about November 27, 1944, the Town made a taking of the Batty Lot due to nonpayment of taxes assessed to Michael Silva for the year 1943, the same being evidenced by an instrument of taking recorded at Book 669, Page 374 (Exhibit No. 7). At no time prior to this taking did Joseph, Blanche or Lena receive actual notice that taxes on the Lot were due or outstanding, or that such property was the subject of a tax taking by the Town. At this time, however, they may have been on constructive notice of the same.

10. At some time between late 1945 and early 1946, Michael Silva contacted Joseph R. W. Lamontagne regarding a possible purchase of the Batty Lot by Joseph. Subsequent thereto, Joseph paid the Town the sum of fifty-two dollars ($52.00) in real estate taxes, thereby acknowledging that such taxes were then due and would remain so on an annual basis thereafter. No further payments of real estate taxes on the Lot were ever made by Joseph thereafter.

11. By deed dated August 10, 1946, recorded at Book 688, Page 387 (Exhibit No. 8), Michael Silva conveyed the Batty Lot to the Plaintiffs, Joseph R. W. Lamontagne and Germaine Lamontagne, as husband and wife holding title thereto as joint tenants.

12. The Town issued an Affidavit to Foreclose Tax Title Land of Low Value (Exhibit No. 9) with respect to the Batty Lot on or about February 26, 1947. This Affidavit evidences the Commissioner's compliance with notice requirements as set forth in G.L. c. 60, §79.

13. By Treasurer's Deed dated April 26, 1947, recorded at Book 697, Page 252 (Exhibit No. 10), the Town conveyed the Batty Lot to the Defendant, William E. Knightly, and one Alfred Knightly. Subsequently, on July 30, 1970, the Defendants Knightly, Individually and as Executors under the will of Alfred M. Knightly and L. Helen Knightly, conveyed the Batty Lot to a straw by the name of Evelyn H. Alberts ("Alberts") (See Exhibit No. 11). Immediately thereafter, by deed recorded at Book 1157, Page 36 (Exhibit No. 12), Alberts reconveyed the Batty Lot to the Defendants Knightly, who have paid all real estate taxes due on the property sce 1947.

14. Except as set forth herein, the record fails to reveal that the Plaintiffs have used, occupied, rented out, visited, improved or paid outstanding taxes on the Batty Lot since the 1920's.

Massachusetts General Laws Chapter 60, sections 79 and 80 delineate the procedure governing tax takings of low value property. Specifically, section 79 provides in pertinent part as follows:

After ninety days from the taking or purchase by a Town of any parcels of land for nonpayment of taxes, the [Commissioner of Corporations and Taxation] may, and on written application of the town treasurer shall, upon request therefor by any person in interest, hear such person relative to any matter pertaining to such inquiry. If the [Commissioner] is of the opinion that such parcels are of insufficient value to meet the taxes, interest and charges . . ., [and], that none of such parcels exceeds five thousand dollars in value, and that the facts essential to the validity of the tax titles of such lands have been adequately established, he shall make affidavit of such finding, which shall be recorded in the registry of deeds in the district wherein the land lies. . . .

Upon the recording of the affidavit the treasurer may sell all the parcels included therein, severally or together, at public auction to the highest bidder, first giving notice of the time and place of sale by publication fourteen days at least before the sale in a newspaper published in the town, if any, otherwise in the county and by posting a notice of the sale in some convenient and public place in the town fourteen days at least before the sale . . . . The treasurer shall execute and deliver to the highest bidder whose bid has not been rejected as inadequate a deed without covenant except that the sale has . . . been conducted according to law. . . Title taken pursuant to a sale . . . shall be absolute upon the recording of the [Treasurer's Deed].

In essence, section 79 imposes three conditions precedent to an effective termination of one's right to redeem property sold under low-value procedure: 1) the issuance of the Commissioner's affidavit; 2) the proper recording of the affidavit; and 3) the posting of fourteen days' notice of the intended sale. Johnson v. McMahon, 344 Mass. 348 , 354-355 (1962); Guaranty Mortgage Corporation v. The Town of Burlington, 385 Mass. 411 , 415-416 (1982).

The Plaintiffs herein assert that the Town's failure to notify them with regard to the taking of the Batty Lot for nonpayment of taxes in 1939 and 1944 renders such taking a nullity. I find the evidence before the Court sufficient to establish the Town's compliance with the procedure enunciated in G.L.c. 60, §79 for the taking of low value property. Further, insofar as the Plaintiffs challenge the procedure followed by the Town on the basis that notice was defective, I find the proper time for the filing of such a claim to be the date on which any one of the Plaintiffs received notice that real estate taxes were due on the Batty Lot. The evidence most clearly reveals that such event occurred in 1945 or 1946 when, by his own admission, Joseph R. W. Lamontagne paid $52.00 in real estate taxes on the Lot to the Town and, accordingly, received a deed to the property from Michael Silva.

In consideration of the foregoing, I thus find and rule that the Plaintiffs' claim is barred by the twenty year statute of limitations governing challenges to low value tax takings based on defects, omissions or irregularities in the notice or procedure followed by the Town under such section. See G.L. c. 60, §80C. In so ruling, I find that the Defendants hold the fee interest in the Batty Lot, free and clear of any and all rights which the Plaintiffs may assert therein.

Judgment accordingly.


[Note 1] Unless otherwise noted, all instruments referred to herein are recorded at this Registry.

[Note 2] The record does not establish whether or not Rosa Alba Lamontagne was placed in the Orphanage at this time.