TOWN OF HARWICH vs. ROGER G. FOSTER and HELEN M. VIAL.

The Town of Harwich brings this complaint pursuant to the provisions, of G.L. c. 240, §§1-5 seeking to have the defendants in this action, Roger G. Foster and Helen M. Vial, bring a separate action to try title. There also is a partition proceeding in the Barnstable Probate Court in which all the parties in this action are parties. The present matter has proceeded first to judgment since this Court has exclusive jurisdiction to determine the validity of tax titles, and the Probate court proceedings are dependent on the result reached herein. It was decided after consultation by the Court and counsel that the defendants would not be required to bring their own action as the statute permits, but that the issues would be decided in this proceeding. Accordingly, the trial was held at the Land Court on October 20, 1989 at which the parties entered in to an agreed statement of facts which will be set forth hereafter in this decision. In addition to the agreement, the Town called two witnesses Roger G. Foster who claims to own an undivided one-half interest in the locus and David R. Scannell a Deputy Assessor for the Town of Harwich. At the trial the testimony was electronically recorded, but it has not been transcribed. All exhibits introduced into evidence or referred to in the agreed statement of facts are incorporated herein for the purpose of any appeal. On the basis of the agreed statements of facts and in accordance with the understanding of the parties I find and rule as follows:

1. This is an action under G.L. c. 240 secs. 1 through 5 seeking to compel adverse claims to show cause why they should not bring an action to try their claims. The Town of Harwich claims to be the owner of the parcel hereinafter described by virtue of a Treasurer's deed in tax title proceedings. The Defendants dispute the validity of the tax title proceedings and each Defendant claims to own an undivided one half interest in locus.

2. Locus is shown as Parcel 1, containing 4.32 acres, on plan entitled "Plan of Land in North Harwich & South Dennis, Mass. for Gerald P. McCarthy et al. Scale 1" = 40' March 8, 1973 Barnstable Survey Consultants, Inc. West Yarmouth, Mass." recorded with Barnstable County Registry of Deeds in Plan Book 268 Page 10 and is further shown as Parcel S2-1 on Harwich Assessors Map Sheet 45.

3. The boundary line dividing the Towns of Dennis and Harwich has been altered twice, i.e., by chapter 599 of the Acts of 1945 and by chapter 372 of the Acts of 1947. The effect of such boundary line changes has been to move such line of locus, being a strip approximately forty feet in width, is presently situated within the Town of Dennis.

4. The chain of title to locus commences with a warranty deed from Eldorus D. Cahoon to Martin L. Robbins dated October 1, 1917 recorded with Barnstable County Registry of Deeds in Book 355 Page 305. The description set forth in this deed is as follows:

On the north by land of heirs of Eleazer Nickerson, deceased;

On the east by land of Allen S.Megathlin, deceased;

On the south by land of Willis Studley; and

On the west by land of Heman Rogers.

Containing four acres, be the same more or less.

5. Martin L. Robbins acquired a parcel adjacent to locus, but situated in the Town of Dennis, by warranty deed also dated October 1, 1917 from Ellery Rogers recorded in Book 352 Page 517. The description recites an area of four and one half acres more or less.

6. By deed dated June 8, 1918 and recorded in Book 362 Page 226, Martin L. Robbins conveyed to Gray Aldrich Fruit Co. several parcels of land located in the Towns of Dennis and Harwich, including locus.

7. By deed dated February 9, 1923 and recorded in Book 393 Page 287, Edwin Gray and Chester S. Aldrich, Trustees of Gray-Aldrich Fruit Company, a voluntary association, conveyed to Raymond E. Sullivan ". . . all of the Real Estate of every kind and description belonging to the said Gray-Aldrich Fruit Company and located in the County of Barnstable in the Commonwealth of Massachusetts."

8. By deed dated February 9, 1923 and recorded in Book 393 Page 287, Raymond E. Sullivan conveyed by the same description to Edwin Gray and Chester S. Aldrich, Trustees of Harwich Cranberry Association, a voluntary trust.

9. By deed dated August 22, 1933 and recorded in Book 498 Page 135, Edwin Gray and Chester S. Aldrich, as Trustees of Harwich Cranberry Association conveyed to Edwin Gray, individually, many parcels, the first of such parcels being described therein as follows:

"In the towns of Dennis and Harwich in the part called North Harwich, a piece of unimproved scrub land containing about 8 1/2 acres more or less, bounded on the east by land of The United Cape Cod Cranberry, Co., on the south by the N.Y.N.H. & H. Railroad, on the west by land now or formerly of Alpheus Baker, and on the riorth by the Great Western Road so called. Said land is bounded and described in detail in the following two deeds previously recorded in the Barnstable Registry of Deeds; Ellery Rogers to Martin L. Robbins recorded May 17, 1918 Book 352, page 517 and Eldorus D. Cahoon to Martin L. Robbins recorded May 17, 1918, Book 355, Page 305; also refer to deed Martin L. Robbins to Gray Aldrich Fruit Co., Book 362, Page 226."

10. By deed dated August 22, 1933 and recorded in Book 496 Page 414, Edwin Gray conveyed an undivided one half interest in the same 8 1/2 acre parcel to John L. Linn.

11. By deed dated September 26, 1933 and recorded in Book 496 Page 417, John L. Linn conveyed an undivided one half interest in ". . .certain parcels of upland and swampland in the towns of Dennis and Harwich in the County of Barnstable, Massachusetts, as described in a certain deed from Edwin Gray and L. Aldula Gray his wife dated August 22, 1933, and acknowledged on the same date, to be recorded herewith. Meaning to convey all the title and interest I may have in real estate in said towns of Dennis and Harwich in the said County of Barnstable. . ." to Ruth Elliot, as Trustee for Chester S. Aldrich.

12. Filed herewith is a copy of the tax valuation list of the Town of Harwich of January 1, 1938, showing on line 28 thereof, an assessment to Edwin Gray et al of 8 1/2 acres and an assessed value of $170.00.

13. By deed dated February 24, 1939 recorded in Book 549 Page 266, Ruth Elliot, as Trustee for Chester S. Aldrich conveyed an undivided one half interest to James R. Larkin as Trustee for Chester S. Aldrich, in many parcels, the first of such parcels being described therein as follows:

"In the towns of Dennis and Harwich in the part called North Harwich, a piece of unimproved scrub land containing about 8 1/2 acres more or less, bounded on the east by land of The Unites Cape Cod Cranberry, Co., on the south by the N.Y.N.H. & H. Railroad, on the west by land now or formerly of Alpheus Baker, and on the north by the Great Western Road so called. Said land is bounded and described in detail in the following two deeds previously recorded in the Barnstable County Registry of Deeds; Ellery Rogers to Martin L. Robbins recorded May 17, 1918 Book 382, Page 517 and Eldorus D. Cahoon to Martin L. Robbins recorded May 17, 1918, Book 355, Page 305; also refer to deed Martin L. Robbins to Gray Aldrich Fruit Co., Book 362 Page 226."

14. There is an instrument of taking made by the Collector of Taxes of the Town of Harwich dated August 17, 1940, recorded September 5, 1940, in Book 570 Page 205. The description set forth therein is as follows:

"Land assessed to Edwin Gray, et al on south side of Great Western Road as described in a deed from Edwin Gray, et al, Trustees to Edwin Gray and recorded at Barnstable County Registry of Deeds, Book 498 Page 135, supposed to contain about eight and one half (8 1/2) acres."

15. Such instrument of taking relates to 1938 real estate taxes together with interest and incidental expenses and costs. The Commissioner of Corporations and Taxation made an affidavit of low value covering the parcel described in the instrument of taking, such affidavit being dated April 12, 1943 and recorded in Book 601 Page 143.

16. By deed dated May 12, 1943 and recorded May 13, 1943 in Book 601 Page 567, the Treasurer of the Town of Harwich executed a deed to the Town of Harwich of the parcel described in the aforesaid instrument of taking. Locus was not thereafter assessed by the Town of Harwich until fiscal 1981.

17. By deed dated May 22, 1946 recorded in Book 824 Page 22, Edwin Gray conveyed to Solon C. Vial and Helen M. Vial as tenants by the entirety ". . . my undivided half interest in a portion of the property conveyed to me by the Trustees of the Harwich Cranberry Association and recorded in the Barnstable Registry of Deeds: Book #498 , Page #135, September 30, 1933. The remaining undivided half interest being now owned by Ruth Elliot trustee for Chester S. Aldrich." Solon C. Vial died April 24, 1961. Helen M. Vial is the surviving tenant by the entirety.

18. Upon the Equity Petition of Chester S. Aldrich in Barnstable Probate Court (No. 29967), reciting that James R. Larkin had died and no provision had been made for appointment of a successor trustee, a decree entered on April 22, 1946 ordering that Ruth Elliot be appointed trustee for the benefit of the petitioner, of all real property in the County of Barnstable then standing in the name of James R. Larkin as Trustee for the petitioner, in the place and stead of said Larkin.

19. By deed dated April 14, 1949, and recorded in Book 788 Page 171 Ruth Elliot, Trustee for the benefit of Chester S. Aldrich conveyed her interest in locus to Belle Aldrich.

20. By deed dated March 31, 1969 and recorded in Book 1432 Page 249, Belle G. Aldrich conveyed to Roger G. Foster All of her right, title and interest in and to any land owned by her in Barnstable County.

21. During fiscal 1981, fiscal 1982 and fiscal 1983 tax bills were issued by the Town of Harwich in the name of Roger G. Foster. Copies of the Fiscal 1982 bill, the fiscal 1983 bill and of a notice of nonpayment relating the fiscal 1981 bill are attached hereto.

22. on June 28, 1983, David P. Scannell, Assistant Assessor of the Town of Harwich received a letter from James E. Coppola, Esquire recommending that whatever portion of the 8 1/2 acre parcel was situated in the Town of Harwich be assessed to Edwin Gray and James R. Larkin, Trustee for Chester S. Aldrich.

23. There is an instrument of taking made by the Collector of Taxes of the Town of Harwich dated September 30, 1983 recorded in Book 3882 Page 346. The description set forth therein is as follows:

"Land in said Harwich on Great Wester Road shown as Lot S2-1 on Assessor's Map 45, described in Barns. Deeds Book 498, Page 135 (parcel 1), except part in Dennis."

24. Such instrument of taking relates to 1981 and 1983 real estate taxes assessed to Edwin Gray and James R. Larkin, Trustee for Chester S. Aldrich. Edwin Gray had died intestate July 12, 1946. His daughter, Helen M. Vial, had been appointed administratrix by decree of Barnstable entered August 13, 1946.

25. On or about December 31, 1984, Helen M. Vial caused to be paid to the Town of Harwich the sum of $2,235.14 for redemption of the tax title and for payment of all taxes and intestate due through December 31, 1984.

26. By instrument of redemption dated January 2, 1985 and recorded in Book 4401 Page 310, the Treasurer of the Town of Harwich acknowledged satisfaction of the tax title account secured by the instrument of taking described above.

27. During fiscal 1984, fiscal 1985 and fiscal 1986, tax bills were issued in the name of Edwin Gray et al. Copies of the fiscal 1985 and fiscal 1986 bills are attached hereto.

28. . Helen M.Vial caused the real estate tax to be paid for the remainder of fiscal 1985 and for fiscal 1986.

29. No real estate tax was assessed by the Town of Harwich for fiscal 1987 nor for any fiscal year thereafter.

30. Copies of the instruments, legislation and plan above referred to are filed herewith.

Based on all the evidence I further find and rule additionally as follows:

1. David Scannell became the Deputy Assessor for the Town of Harwich in March of 1981. Roger Foster approached Mr. Scannell some time in 1981 to inquire as to why he was receiving no tax bill covering the locus since the Town of Dennis was assessing the adjoining parcel on the opposite side of the Town line to him. Mr. Foster testified conversely that he had received a Harwich tax bill and then told the Harwich authorities that if the land were his, he would pay the bill, but he wanted to be certain that this was the case. I accept the Scannell version of the conversation although it is ultimately immaterial. After his conference with Mr. Foster, Mr. Scannell researched the Town records and could not find that the property was assessed to any person so either then or after the receipt of an opinion of counsel he put the property back on the tax rolls. Regrettably, the records of properties owned by the Town and derived from tax titles did not include locus.

2. Subsequently, Mr. Scannell checked the registry records and found the 1940 tax taking and the deed to the Town whereupon he consulted James E. Coppola, tax attorney for the Town, as to the validity of the 1940 taking. Mr. Coppola recommended that a notation be made on the "tax possession record" that the Town does not own this parcel and that whatever portion of the eight and one- half acres that is in Harwich be assessed currently to Edwin Gray and James R. Larkin, Trustee for Chester S. Aldredge". Mr. Coppola's opinion was based on the fact that the description in the instrument of taking refers only to the book and page of the deed into Edwin Gray and to an area of eight and one-half acres, without differentiation as to the portion thereof located in Harwich. The 8.5 acre parcel was described in the deed as being situated in Dennis and Harwich.

3. The legislative changes in the boundary line affect the parcel as it is today, not as it was at the time the taking was made in 1940.

4. The tax collector of the Town did not disclaim the title acquired by Harwich through the foreclosure in 1943. G.L. c. 60 §§82-84 gives to those holding such position the jurisdiction to determine the validity of a tax title. It is not clear whether this applies also to circumstances where the lien has been foreclosed and the Town claims to hold title by virtue thereof. It would appear that once the Town appears to have acquired title through the foreclosure process, whether by the administrative procedures involved in low value or by judicial decree, then a sale otherwise than in the usual course such as through the custodian of the tax title account must be by authority of the Town meeting with a deed to be executed by the selectmen. Similarly a decision forty years later to disclaim a tax title requires the authority at least of the Board of Selectmen or a decision as to invalidity by this Court. This in substance is the holding of Rossire v. Boston, 4 Allen 57 (1862) which parallels in this aspect of the case the factual situation presented in the matter now before me.

Before we reach this aspect of the matter, however, I must address the question of procedure. This is a complaint pursuant to c. 240 for the defendants to bring a separate action to try title. The parties agreed to proceed in the usual course without a separate complaint, by which the present defendants would prove their title. It seems to me that whatever flaws there may be in their record title on which I do not now rule, both Mr. Foster and his co-defendant have at least sufficient title to question that of the Town pursuant to the 1943 deed to it. In my opinion the Town is not estopped from relying on the 1940 taking, the foreclosure of the equity of redemption through the low value administrative procedure and the 1943 deed to it despite the return to the tax rolls of the locus in 1981 and the acceptance of payment of the bills through fiscal 1986. As the agreed statements of fact indicate, the locus had not been assessed for many years during which the title was in the Town of Harwich. I know of no principle by which a municipality can be estopped by the action of its officials, a principle most commonly put forward in a case of ruling by building inspectors but applicable in other circumstances as well. In any case, this point seems to have been decided adversely to the defendants in the Rossire decision.

The principal attack made by the defendant upon the Town's title pursuant to the 1943 proceedings, is the description used in the taking and the tax deed. Before we reach the point, it is necessary to decide whether the defendants are foreclosed by the provisions of G.L. c. 60, §80C from attacking the validity of the tax taking and the deed. It is provided in §37 of said chapter 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 or misleading, whether such error or irregularity occurs in the proceedings of the collector or the assessor or 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". Somewhat the same language appears in §80C. It reads as follows:

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 such land, 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 of record thereof shall, notwithstanding such defects, irregularities, or omissions be effective for all purposes to the same extent as though such notice or procedure of the instrument of 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 deed 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.

The Courts have not as yet decided whether an error in the description of the property taken is such a defect, irregularity or omission which the legislature has attempted to cure by the language of §80C. I have heretofore held that §80C does not cure the assessment to a third party who has no title to the property in question, and this decision was upheld by the Supreme Judicial Court. Sheriff's Meadow Foundation, Inc. v. Bay­Courts Edgartown, Inc., 401 Mass. 267 (1987) Justice Nolan held that the statute could not supply a title which did not exist at the time of the taking. This is a different case. There may well be instances where the description is so obscure that it would be violative of the constitution to apply the statute of limitations, but that is not true of every case where the description is attacked as defective. See Campobasso, et al v. Vachon, et al, Land Court Miscellaneous Case No. 120267. I find and rule that the flaw with the description is such that the statute affords protection against the claims of the defendants.

Even if I am wrong as to the breadth of the statutory sweep, the description in the taking and the tax deed are valid. The deed to which the tax taking instruments refer has only one parcel in Harwich, that described in parcel 1. The deed reads that the parcel is in both Dennis and Harwich, and it gives the total area as 8.5 acres. It does not differentiate as to how much is in each Town, and under such circumstances the Town authorities should not be required to do so either.

In weighing the validity of the description in a tax deed the question has been considered to be largely one of fact. Springfield v. Arcadi Malleable Iron Co., 285 Mass. 154 (1938). The concern has been that the owner and potential purchasers be able to discern what is being sold. See Krueger v. Devine, 18 Mass. App. Ct. 297 , 400-402 (1984). In the present case I find and rule that the owner clearly would have been apprised of the land taken by the Town and that the reference to the deed conveying parcels to Gray should have made it clear to purchasers as well what was being sold. After forty years it would be unsettling to subject the title acquired by the Town to attack. However, Mrs. Vial has in good faith paid the taxes for several years on the locus. It would be unjust for the Town to retain the moneys in the light of the result I reach, and once this litigation has been finally concluded, the payments should be refunded to her with interest.

On all the evidence, I therefore find and rule in summary that the deputy assessor was not authorized to return locus to the tax rolls without authorization from the Board of Selectmen or this Court; that the Town is not estopped to claim title pursuant to the tax title foreclosure; that the defendants are barred by G.L. c.60 §80C from now alleging that the description in the tax instruments is invalid; and that in any event the description is neither misleading nor the mistake thereon under the circumstances substantial.

Judgment accordingly.