TLC 68675 & 68676

September 11, 1989

Barnstable, ss.



The defendant, William Brine ("Brine"), purchased for the sum of $200 from Josephine M. Huse two parcels of land shown as Lots 11 and 12 on a plan dated July 31, 1902 by G. Willard Bartlett; such lots now appear as Lots 15 and 16 on Assessors' Map 103 and the plaintiff, the Town of Mashpee (the "Town"), seeks to foreclose in these two tax lien cases the owner's equity of redemption therein for nonpayment of the 1977 real estate taxes pursuant to the provisions of G.L. c. 60, ยง65. Brine, to whom the parcels were assessed, is willing and able to pay the real estate taxes and has offered to redeem, but the Town has refused to accept payment from him.

A trial was held at the Land Court on May 5, 1989 at which a stenographer was appointed to record and transcribe the testimony. The only witness was William H. Brine, and the only exhibit introduced into evidence and incorporated herein for the purpose of any appeal was the deed from Josephine Huse to Brine dated April 18, 1974 and recorded with Barnstable Deeds in Book 2028, Page 238.

On all the evidence I find and rule as follows:

1. In Land Court Miscellaneous Case No. 109780 this Court held that Brine, as plaintiff, was unable to maintain his action for a declaratory judgment affecting other land in Mashpee, not locus, record title to which was acquired by the same deed as that which conveyed locus herein to Brine.

2. The history of the title to locus appears in the Miscellaneous Case. At the time of the trial it was agreed that the Town was owed as of May 5, 1989 taxes, interests and costs in the amount of $4,768.93 on Lot 15 and $5,176.89 on Lot 16.

3. Lots 11 and 12 were conveyed to Brine by Mrs. Huse by the above-mentioned deed, and they are the parcels shown as Assessors' Lots 15 and 16 on Map 103.

The only question presented by these actions to foreclose the taxpayer's right of redemption is whether an owner of record may be barred from payment of the real estate taxes when a court has held that his acquisition of the property was champertous. See Allen v. Batchelder, 17 Mass. App. Ct. 453 , 459 (1984), Robertson v. Plymouth, 18 Mass. App. Ct. 592 , 597 (1984), Cf. Christian v. Mooney; Beinecke, 400 Mass. 753 , 758 ftn. 7 (1987). It is one thing, however, to bar the pursuit of judicial remedies by one who may be fomenting litigation, but it is clearly quite a different matter to say he is deprived of a defense to tax foreclosure proceedings brought by a stranger to the disputed dealings with Mrs. Huse.

In Lynnfield v. Owners Unknown, 397 Mass. 470 (1986) the Supreme Judicial Court held that a third party who sought out and acquired interests in a part of the land to which the tax taking related was entitled to redeem. Lynnfield, of course, is distinguishable, because there was a finding that the bargaining did not exceed permissible limits. That issue has not been reached in either the previous or present Mashpee litigation. By requiring the Town to accept payment from Brine the question remains open as to the validity of the execution of the deed as between Mrs. Ruse's heirs at law and next of kin and Mr. Brine.

Judgment accordingly.