MARCEL E. BOISSE and JACQUELINE R. BOISSE vs. HENRY A. RICHTER, NATHANIEL C. HAWKINS, JR. and ANTHONY R. PIRRO of THE BOARD OF SELECTMAN, and ROGER N. SMITH, DONALD LeROY and PAUL CONSTANTINO, of THE BOARD OF ASSESSORS, and JOHN E. BEARY, THE TOWN TREASURER, and JUNE E. HENDERSON, THE TAX COLLECTOR, ALL OF THE TOWN OF LANCASTER.

By complaint filed June 8, 1987, Plaintiffs seek a declaration that they are the owners of a parcel of land in Lancaster ("Locus") which was the subject of two separate tax takings, the first under which they claim title, and the second under which the Town of Lancaster ("the Town") claims title. Plaintiffs further request that the Town be enjoined from refusing to issue tax bills to Plaintiffs and ordered to accept tax payment from Plaintiffs on Locus. In the alternative, Plaintiffs seek a declaration that the Town has denied them their right to due process under the Fourteenth Amendment of the United States Constitution.

There is no indication from the pleadings and other relevant documents that the Attorney General was notified as to the alternative claim in this action as required by G.L. c. 231A, §8.

This case was tried on March 6, 1991, at which time the proceedings were transcribed by a court-appointed reporter. There were no witnesses, but ten exhibits were introduced into evidence. All of the ehibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. Locus contains approximately ten acres and 103 rods and is shown as Lot 38 on the Town Assessor's Map Number 8.

2. In the early 1920's, Locus was owned by Harriet M. Page ("Page"). On August 7, 1925, Arthur G. Chickering, Collector of Taxes for the Town ("the Tax Collector") sent Page a demand notice concerning unpaid taxes for the fiscal years 1922 and 1923. The taxes were not paid and the Tax Collector duly conducted a tax sale pursuant to G.L. c. 60, §43. [Note 1]

3. Harry Romanoff ("Romanoff") purchased Locus at the tax sale and was given a collector's deed pursuant to G.L. c. 60, §45, dated September 2, 1925, and recorded in Book 2382, Pages 565-6 in the Worcester District Registry of Deeds [Note 2] ("the Romanoff Deed") (Exhibit No. 1).

4. Page was listed as the assessed owner of Locus for fiscal years 1924 and 1925 in the Lancaster Tax Valuation List ("the Assessor's Records"). The 1925 Assessor's Records contain a notation after Page's name, "to Romanoff Harry" (See Exhibit No. 8) and the 1926 Assessor's Records list Romanoff as the assessed owner of Locus (See Exhibit No. 9).

5. On February 16, 1927, the Tax Collector sent Page a demand notice for the payment of real estate taxes on Locus for l924-6. Subsequently, the Tax Collector conducted a second tax sale of Locus pursuant to G.L. c. 60, §43. As there were no sufficient bids, the Tax Collector purchased Locus for the Town ('"The 1927 Taking") and a collector's deed to the Town dated April 29, 1927, was recorded at Book 2435, Page 69-70 (Exhibit No. 2) ("The Collector's Deed").

6. G.L. c. 60, §45 required a collector's deed:

. . . state the cause of the sale, the price for which the land was sold, the name of the person on whom the demand for the tax was made, the places where the notices were posted, the name of the newspaper in which the advertisement of the sale was published, and the residence of the grantee . . . . (emphasis added)

In the present case, the Collector's Deed stated only that demand was made on Page and made no mention of Romanoff. I, therefor, conclude that no demands were made of Romanoff for the unpaid taxes giving rise to the 1927 Taking nor was he named in the notices of sale.

7. Subsequently, pursuant to G.L. c. 60, §§79, the Tax Collector obtained an affidavit of low value dated March 26, 1937 and recorded at Book 2692, Pages 181-2 (Exhibit No. 3).

8. After an attempt to sell Locus at public auction, the Town Treasurer, pursuant to G.L. c. 60, §80, deeded Locus to the Town by Treasurer's Deed of Land of Low Value, dated December 22, 1937, and recorded at Book 2713, Pages 249-52 (Exhibit No. 4).

9. The Town apparently did not keep and in any event no longer has records of tax payments made before 1954. The Town does have records of 1954 through 1986 tax bills which were sent to and paid by the heirs of Romanoff. In consideration of all the circumstances, I find that tax bills were sent to and paid by Romanoff and/or his heirs from the 1926 assessment forward.

10. By deed dated August 5, 1985, and recorded at Book 8968, Page 164, Elijah B. Romanoff, an heir of Romanoff and a successor in title to Locus, conveyed Locus to Plaintiffs (Exhibit No. 5). In 1985, 1986 and for the first half of fiscal year 1987, Plaintiffs were billed and paid taxes on Locus. In February of 1987, the Town's Board of Selectmen voted to cease issuing tax bills for Locus claiming that it held title thereto.

G.L. c.59, §11 presently directs to whom municipalities shall assess real estate taxes. Prior to 1915, municipalities were directed only to assess to "the person who is either the owner or in possession, and the person appearing of record." (St. 1909, c.490, I, §§15 and 25). The Supreme Judicial Court consistently construed this direction to include the recipients of tax deeds. Butler v. Stark, 139 Mass. 19 (1885); Roberts v. Welsh, 192 Mass. 278 , 279 (1906); Conners v. Lowell, 209 Mass. 111 , 122 (1911). In 1915, the legislature amended the statute to read as follows, the amending words are underlined:

Section 15. Taxes on real estate shall be assessed, in the city or town in which the estate lies, to the person who is either the owner or in possession thereof on the first day of April, and the person appearing of record, in the records of the county, or of the district, if such county is divided into districts, in which the estate lies, as owner on the first day of April, even though deceased, shall be held to be the true owner thereof, and so shall the person so appearing of record under a tax deed which is invalid on its face . . . (St. 1915, c. 237, §23)

The amended section remained in effet until repealed in 1936. Clearly, at least between 1915 and 1936, the Town had an express statutory duty to assess real estate taxes to the record holder of a tax deed. It is well settled that failure to assess readily discoverable record owners does not comply with statutory requirements. Christian v. Moody, 400 Mass. 753 ; 761 (1987).

St. 1918, c.57, the statute which in 1927 controlled on whom and in what manner a tax collector must make demand for unpaid real estate taxes read, in pertinent part, as follows:

The collector shall, before selling the land of a resident, or nonresident, . . . serve on him a statement of the amount thereof with a demand for its payment . . . . Demand shall be made by the collector by mailing the same to the last or usual place of business or abode, or to the address best known to him, and failure to receive the same shall not invalidate a tax or any proceedings for the enforcement or collection of the same.

While failure to receive is not a defect, it does not validate a tax title purportedly acquired without compliance with the statute. Bartevian v. Cullen, 369 Mass. 272 , 275-6 (1976) decided under G.L. c. 60, §16. The statute required the Town to make a demand for the 1924-26 taxes which it did, but further required that the demand be made upon the properly assessed owner, which it did not.

The notice requirements of the 1927 tax sale were governed by St. 1909, c. 490, II, §§53, 39 and 41. Those sections would appear to require notice on Romanoff whose interest in the land was obviously known or readily available to the Tax Collector.

The Town erred in its failure to make a demand on Romanoff for the taxes for the year in which Romanoff was the assessed owner of the land, and further erred by failing to notify Romanoff of the pending tax sale. The statute in effect at the time of the second sale (now part of G.L. c.60, §37) provided that "[N]o tax title shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading." Whether an error or irregularity is substantial or misleading must be decided according to the circumstances of each case. City of Fall River v. Conanicut Mills, 294 Mass. 98 , 100 (1936). Once an error has been shown, the party who asserts the insubstantiality of the error has the burden of proving that fact. Bartevian at 822-3. At trial, the Town did not bear this burden, rather it rested its case on the relaxed notice requirements and curing provision of G.L. c. 60, §§79, 80 and 80C.

After considering all of the circumstances, I find the Collector's Deed to the Town is invalid because of a substantial and misleading error and accordingly the treasurer's deed is similarly flawed and invalid. The protection of §§79 and 80 is available only if the title acquired was a valid one. Bartevian at 821.

G.L. c. 60, §80C does appear to create a twenty year time limit for challenging defects of notice, procedure or instrument in tax sales of low value land. As I have found above, however, the defects in the Collector's Deed and subsequent treasurer's low value deed were substantial and misleading and consequently under the effective law at the time of their creation and filing they were void and of no effect and conveyed no title. The statute cannot now cure a defect founded on want of title, nor supply title which did not exist at the time of taking. Sheriff's Meadow Foundation. Inc. v. Bay-Courte Edgartown. Inc. 401 Mass. 267 -70 (1987).

It is undisputed that the 1927 demand for back taxes was made on one person when, in fact, the property had been sold to someone else. This fact coupled with the Town's failure to notify the actual owner, who was known to the Town, of the impending taking could well be a violation of due process, In Re Stacy, 99 Bankr. 142, 151 (D. Mass. 1989), which question I do not here decide inasmuch as it does not appear that the attorney general has received notice of this proceeding.

In any event, as in any matter involving a "limitation of action" statute, the effect of such statute can be tolled by actions of the entity raising such defense. In this instance, I find that by consistently assessing billing and receiving tax payments from the Romanoff's and Plaintiffs, on Locus for a period of nearly sixty years, the Town has lost or waived any defense or protection afforded by §80C.

Judgment accordingly.