GEORGE P. LAVENTIS and JOHN W. SHEERAN, III, Administrators of the Estate of Rufus N. Stanley and of Ella A. Stanley vs. CITY OF GLOUCESTER.

The City of Gloucester (the "City") foreclosed its tax lien on the parcel of vacant land situated on Magnolia and Western Avenues in said City by decree of the Land Court dated April 22, 1974 and recorded with the Essex South District Registry of Deeds in Book 6062, Page 608. The Land Court proceedings concerned the nonpayment of real estate taxes assessed as of January 1, 1944 to Rufus N. Stanley. Subsequently the premises were taken by the City by an instrument dated September 25, 1945 and recorded with said Deeds in Book 3446, Page 512 and the taxpayer's right of redemption duly foreclosed by the Court on the City's petition. The plaintiffs, as administrators of the estate of Rufus N. Stanley and the estate of Ella A. Stanley, seek to vacate this Court's decree of foreclosure and to redeem the premises. The City objects to the vacation of the decree.

The parties have entered into an Agreed Statement of Facts which insofar as material are incorporated in the Court's findings set forth below.

The case was submitted to the Court for decision on the agreed statement and the arguments of counsel. On all the evidence I find and rule as follows:

1. The premises in question were owned by Rufus N. Stanley by a deed to him from Edward O. Gaffney dated October 4, 1898 and recorded with said Deeds in Book 1563, Page 46. Mr. Stanley executed several deeds out of the premises during his lifetime, and a sketch of what remained at the time of the tax title proceedings appears in the examiner's report to the Court.

2. Mr. Stanley died on December 6, 1943, at age 89, a resident of the City of Gloucester. His widow, Ella A. Stanley, died on January 9, 1960, at age 90, a resident of the City of Gloucester. Petitions for administration of the estates of Mr. and Mrs. Stanley were not filed until April 1987.

3. Ella A. Stanley was adjudged an insane person and confined to the State Hospital in Danvers, Massachusetts. Originally Rufus N. Stanley was appointed guardian for his wife by decree of the Essex Probate Court dated September 27, 1927. After Mr. Stanley's death Emeline French was appointed guardian of Ella A. Stanley by decree of said Probate Court dated February 9, 1944 with her bond having been approved on April 13, 1944. The guardianship petition stated that the heirs of Ella A. Stanley were Grace W. Cummings of Cayuga, New York, a sister, and Thomas P. Wiley of Auburn, New York, a brother. Emeline French died on August 16, 1968, a resident of the City of Gloucester.

4. Prior to the tax taking which is the subject of this case, the City of Gloucester made two assignments of earlier tax takings affecting the locus to Emeline French. These assignments to Emeline French were for 1940 and 1942 real estate taxes assessed to Rufus N. Stanley.

5. Prior to the filing of the petition on which the foreclosure decree entered, the City of Gloucester had filed two previous petitions to foreclose the rights of redemption of the same tax taking which is the subject of this case. They were Land Court Case No. 32926 filed in 1952 and Case No. 38272 T.L. filed in 1960. Both of these cases were dismissed after being marked inactive. In Case No. 32926 T.L., Emeline French filed answers individually and as guardian of Ella A. Stanley, on April 27, 1953.

6. The only answers filed in this case were by Edward Morley, Administrator of the Estate of Emeline French, and Albert S. French, Sr. and Albert S. French, Jr., the heirs at law of Emeline French. A Finding was entered by the Court on February 15, 1974 allowing Albert S. French, Sr., Albert S. French, Jr. and Edward Morley, Administrator of the Estate of Emeline French, to redeem the tax title in this case upon payment to the City of Gloucester of $23,956.19 on or before March 15, 1974. This finding included 1944 to 1973 fiscal year taxes inclusive assessed to Rufus N. Stanley. No redemption was made.

7. The answer of Glenn Cummings, dated March 29, 1984, filed in Land Court Tax Lien Foreclosure Case No. 64166, City of Gloucester v. Rufus N. Stanley, the original of which is on file with the Court in said Case No. 64166, is incorporated in the Statement of Facts. This case involved other land in the City of Gloucester owned by Rufus Stanley. The answer of Glenn Cummings stated his address was 237 Gennessee Street, P.O. Box 4, Cayuga, New York 13034 and that he had no knowledge of any other potential heirs to the property.

8. At the time of the original tax title proceedings in 1973 the Deputy Recorder of the Land Court inquired as to the persons entitled to notice in the foreclosure proceedings. At that time counsel for the City of Gloucester reported that Mr. Stanley had died December 6, 1943 and his widow, on January 9, 1960 and that there were no Essex County probates for either deceased. She further reported on the information from the guardianship of Ella A. Stanley listing Thomas P. Wiley of Auburn, New York a nephew and Grace Cummings of Cayuga, New York as a niece. The city Clerk of the former city had reported to counsel setting forth the last record of Thomas P. Wiley was in 1933 and that there was no record of his death between 1933 and 1941. She similarly reported on the death in accordance with information received from the Town Clerk of Cayuga of Grace Cummings with the name and address of her son, Glenn Cummings. Accordingly the Land Court notified Mr. Cummings of the pendency of the proceedings and the certified mail receipt signed by him is in the papers of this case. Notice was given by publication as well to the heirs of the two decedents. No record was found and neither counsel nor the Court was advised by any party in interest of the existence of one additional heir, one John W. Cummings, who appears to be the brother of Glenn Cummings. Glenn and John are the sons and only heirs of Grace Cummings, who is a sister of Ella Stanley and who died in 1958, a resident of Cayuga. There is no Essex County probate for the estate of Grace Cummings. Glenn Cummings has now died, and John W. Cummings still survives.

The estates of Rufus and Ella Stanley seek to have the Court vacate a decree that was entered approximately 16 years ago. The estates in of themselves have no standing in this procedure since at the time of the foreclosure of the right of redemption title had passed, albeit subject to the clouds arising from the missing Stanley probates, to the sons of Grace Cummings and any heirs at law and next of kin of Thomas Wiley. Notice was given by the Court to the extent that the diligent search made by the counsel for the City of Gloucester permitted to Mr. Glenn Cummings, and it is clear from the Court records that he received notice. He did not appear in the proceeding nor did he advise the Court that he had a brother who also was entitled to notice.

The Massachusetts statutes which govern the foreclosure of the right of redemption through judicial proceeding afford notice both by publication, where necessary, and by registered (or certified) mail when it is possible to trace the parties entitled to the right to redeem. In the instant case the City of Gloucester made every reasonable effort to locate those who were entitled to notice and the opportunity to redeem pursuant to Massachusetts law, and indeed actual notice was given to Mr. Glenn Cummings. No information was furnished either by Mr. Cummings or by the authorities in Cayuga as to a second son of Grace Cummings, and no actual notice was received by him, but publication served in this instance to afford him constructive notice.

The plaintiffs appear to attack the original tax taking from Mrs. Stanley who in 1945 was incompetent. The taxes probably were assessed to her husband's estate in the preceding year since he had only recently died (in December of 1943), no probate had been taken out as of January 1, 1944, and the City was entitled to a grace period before it became necessary to assess the taxes to his widow, Ella A. Stanley, or to his heirs. By the time of the tax taking and indeed at the time of the assessment, Mrs. Stanley was incompetent but a guardian was appointed well before the due date for the payment of taxes in 1944, one Emeline French. The plaintiffs complain that Mrs. French's course of conduct was ambiguous and that she appeared in some of her dealings with the property to be acting in a personal capacity rather than as a true fiduciary. If this is so, then the plaintiffs' remedy is on her bond filed with the probate court if indeed it is still viable and the statute of limitations has not run. The City of Gloucester is not responsible for any improprieties in the actions of the guardian so long as it furnished the Land Court with the necessary information to give appropriate notice in the current proceedings.

As Sharon v. Kafka, 18 Mass. App. Ct. 541 (1984) makes clear, the time during which a tax decree can be challenged by anyone other than the original petitioner is limited. The statutory period of a year is not to be waived since a waiver is "extraordinary in nature and ought to be granted only after careful consideration and in instances where . . . [it is] required to accomplish justice Lynch v. Boston, 313 Mass. 478 , 480 (1943)". In Kafka there was a question as to the competency of the taxpayer and the Appeals Court stated:

Incapacity or mental illness might serve as a ground for a judge's exercise of discretion to vacate a judgment where a petition is brought within the one-year limit. See Herlihy v. Kane, 310 Mass. 457 , 459 (1941). Under the statutory language we think the judge here was given no power to exercise such discretion after that time. See Lancaster v. Foley, 15 Mass. App. Ct. 967 , 969 (1983).

As is clear from Justice Dreben's statement in Kafka the court may exercise the court's discretion to vacate a judgment by reason of incapacity or mental illness if the petition is brought within a year, but after the expiration of the year the Court's discretion is limited. In the present case the petition to vacate was not brought for many years having been filed on June 23, 1988, more than fourteen years after decree was entered. The failure to file within the year limits my discretion to vacate the decree although the Supreme Judicial Court in a learned discussion by Justice Wilkins in Christian v. Mooney; Beinecke, 400 Mass. 753 , 760-762 has emphasized the constitutional issues. On all the evidence here, however, the latter are not present since one of the real parties in interest received notice and all reasonable efforts were made to find any others. It is now too late to raise the question as to the adequacy of the assessment and the validity otherwise of the tax foreclosure proceedings.

Decree accordingly.