TLC 68684

March 15, 1990

Barnstable, ss.



This is a motion by the Defendant-Intervenor, New Seabury Corporation, for relief from a judgment after a tax taking, foreclosing all rights of redemption on a parcel of land in the Town of Mashpee ("Town") containing about 18.8 acres ("Locus") described as:

Land in . . . Mashpee off Red Brook Road shown as Lot 68 on Assessors' Map 110 described in Barns. Probate 53236.

The final decree was entered on December 2, 1986. The motion to intervene and for relief from judgment was filed thereafter on February 3, 1988.

This cause came on to be heard on June 28, 1988 and was argued by counsel, after which the parties filed a statement of agreed facts. This statement, with attachments, is incorporation herein in its entirety for the purpose of any appeal. The pertinent facts may be summarized as follows:

1. From at least 1970 through 1975, Locus was not assessed by the Town. The Assessors' records did not show an owner of Locus during this time.

2. Sometime in 1972 or 1973, the Defendants, Wilfred W. Norris, Sr., Viola E. Oakley and Milton E. Norris, claiming to be the heirs of Sophronia F. Norris, made demand upon the Board of Assessors to amend the Town records to show that the Norrises were the owners of Lot 68 on Assessors Map 110, and further alleging that their ancestor, Sophronia F. Norris, was the same person as Sophronia Young.

3. Because of said claim, the Assessors asked Town Counsel to research the ownership of Locus. After a search of certain records, counsel advised the Assessors that "title to parcel 110-68 remains in the heirs of Sophronia Young and it is recommended that parcel 110-68 be so assessed".

4. Commencing in 1976, in reliance on the foregoing recommendations, Locus was assessed to the "Heirs of Sophronia Young". The Assessors were unable to identify such heirs.

5. As a result of the Norrises' claim of kinship to Sophronia Young, the Tax Collector demanded payment of the 1976 taxes from Wilfred W. Norris, Sr., et al. The Assessors, however, refused to assess the property to the Norrises and, at all times relevant hereto, assessed the property to the heirs of Sophronia Young. The 1976 taxes were not paid.

6. On January 22, 1981, the Tax Collector took Locus on behalf of the Town for nonpayment of the 1976 taxes. The instrument of taking, recorded with the Barnstable County Registry of Deeds in Book 3229, Page 34, stated that the land was taken for nonpayment of taxes assessed therein to "Hrs of Sophronia Young, Milton E. Norris" and described Locus as follows:

Land in said Mashpee off Red Brook Road, shown as Lot 68 on Assessors' Map 110, described in Barns. Probate 53236.

7. Barnstable Probate 53236 is the intestate probate of the estate of Sophronia F. Norris, who was not, nor was she related to, Sophronia Young. The aforementioned Norrises appear to be the sole heirs of Sophronia F. Norris. Neither she nor they had any interest in Locus.

8. The only person personally notified by the Tax Collector of the tax taking was Milton E. Norris.

9. On May 17, 1983, the Treasurer, on behalf of the Town, filed this action to foreclose its tax title. The petition lists only Wilfred W. Norris, Sr., Viola E. Oakley and Milton E. Norris as all persons who have any interest in Locus, other than the Town.

10. The Court referred the matter to a title examiner for a title report. The report, which was filed on December 5, 1983, did not report the title on Locus. Rather, it reported title to a quarter-acre parcel formerly owned by the Norrises.

11. Notice of the proceeding was given by certified mail to various persons listed in the title report. There was no publication, nor any other effort made, to notify the heirs of Sophronia Young.

12. On December 12, 1985, an answer was filed on behalf of the ". . . Heirs of Sophronia Young Norris Respondent, i.e. Milton E. Norris, Isidore Norris and R. Richmond Oakley" claiming to be the owners of the equity in the premises, and further requesting ". . . a reasonable period of time to do a title search and procure an appraisal". On October 17, 1986, a withdrawal of appearance and objections was filed on behalf of these Respondents.

13. A motion for general default was allowed on November 19, 1986 and, as stated above, a decree foreclosing all rights of redemption was entered on December 2, 1986.

14. In the spring of 1987 the president of Intervenor New Seabury Corporation was informed by a town official that the Town claimed ownership of Locus by virtue of the decree of foreclosure.

15. Inasmuch as Locus is included in the parcel of land for which said Intervenor seeks to register title in Registration Case No. 38010, said president informed its counsel of record in said registration matter, Attorney Jeffrey B. Storer, of the Town's actions.

16. Attorney Storer discussed the matter with Attorney James E. Coppola, who regularly handles tax matters for the Town. Thereafter, Attorney Coppola referred the matter to Attorney Leslie-Ann Morse, Assistant Town Counsel. Attorney Storer requested, through Mr. Coppola, that the Town vacate the decree of foreclosure.

17. The Town did not so petition the Court, and on February 3, 1988, New Seabury Corporation filed a motion to intervene and for relief from judgment.

Ordinarily only the petitioner may bring a motion to vacate a decree of foreclosure after the elapse of one year after the final entry of the decree of foreclosure. G.L. c. 60, §69A. In this instance, however, I find that where the only notice given by the Town was to persons who, although claiming to have, actually had no interest in Locus whatsoever, and where no notice even by publication was given to the "Heirs of Sophronia Young", the foreclosure was defective for failure to comply with M.G.L. c. 60, §§67 and 69 and must be annulled. While the Town did act in reliance on the report of the title examiner appointed by this Court, as did this Court, the Town had available to it the report of its former counsel designating the heirs of Sophronia Young. Furthermore, I do not find the mere recitals of an Assessors' Plan reference to be sufficient notice.

Having found the foreclosure defective, I do not find sufficient evidence on the record in this matter, or in Registration Case No. 38010, sufficient to determine that New Seabury Corporation is an entity with standing sufficient to redeem the property. The title examiner's report in the Registration Case states that the petitioner has not "a good title as alleged", and further states that, while New Seabury Corporation has a putative share of 5/6 in Locus, "The title to this point rests on the intestacy laws at the time of death of Sophronia Young and assumptions of heirs and kinship made from incomplete records at the Barnstable Registry and the Town of Mashpee".

I note further that at the end of this title report, completed nearly sixteen years ago, the title examiner comments that "further investigation of decent and distribution is being done at this time in respect to the parcel (Locus)".

It may well be that by now New Seabury Corporation has at hand sufficient evidence to establish some share sufficient to enable it to redeem Locus.

New Seabury Corporation's motion for relief from the decree of foreclosure is accordingly denied without prejudice, and on its own motion, the Court finds that the judgment of foreclosure dated December 2, 1986 in this matter must be vacated.

Judgment accordingly.