TLC 82846

May 31, 1991

Dukes, ss.



This action involves a taking (the "Taking") by the Town of Tisbury (the "Town") of property ("Locus") of defendants located on Lagoon Pond, shown as Parcel 11, Block A, on Assessor's Map 17, and described as parcel 2 in a deed into defendants recorded at Dukes County Registry of Deeds (all recording references hereinafter are to that Registry) at Book 307, Page 235. The Taking was recorded at Book 461, Page 89 and was for non-payment of 1985 taxes in the amount of $356.12, interest of $94.59 and costs of $10.11, or a total of $460.82.

On December 11, 1987 the Town brought this petition to foreclose its lien. Defendants filed an answer on October 23, 1989, claiming that the taxes on Locus had been paid and that they had not received demand or notice of the taking. On October 23, 1990, (sic), there was a finding for the Town for $806.79, interest and costs of $130.00, allowing payment on or before January 15, 1991. By agreement that Finding was vacated and a new hearing set for December 18, 1990.

A hearing was held on that date, at which both parties were represented by counsel. The testimony was recorded electronically and later transcribed. The following witnsses testified: Eileen T. Whiting (Treasurer and Tax Collector of the Town) and defendant, James H. K. Norton.

1. Defendants paid the Town $1,084.01, by check of James Norton in that amount dated May 2, 1985 payable to the Town. The check bore a "memo" as follows: "R.E. & Excise Taxes". (Exhibit No. 9). That check was deposited August 14, 1985, with other checks of the Town.

2. The Town credited that check against these amounts:

Motor Vehicle Excise Tax Bill 1373 in the name of James H. Norton, $10.00.

Motor Vehicle Excise Tax Bill 1374 in the name of James H. Norton, $12.50.

Motor Vehicle Excise Tax Bill 1376 in the name of Mariette K. Norton, $11.25.

The total thus paid on account of motor vehicle excise taxes was thus $33.75. All three bills were addressed to Box 1206, Vineyard Haven.

3. The rest of the check was credited against these bills for second half taxes for 1985:

Bill 2667, standing in the name of Mariette K. Norton, Norton Sarah Louisa et al, $567.91, being for vacant land, parcel 1 on Map 530A.

Bill 2663, standing in the name of Norton Marietta K. et al, $242.48, being for vacant land, parcel 11 on Map 550A.

That left a balance of $239.87, which the Town applied against Bill 2661, standing in the names of defendants for Locus. Bill 2661 was for $765.23, but it bears notations that credited against that amount were three abatements, leaving a balance of $595.99, so after application of the $239.87, $356.125 would appear to have been due. That is the amount shown due for 1985 taxes on the Taking.

4. All three real estate tax bills described above are addressed to Box 1206, Vineyard Haven.

5. Two of the abatements reflected on Bill 2661 were for properties owned by Mr. Norton's mother and the third was for Locus.

6. Defendants testified that they had instructed the Treasurer to apply their $1,084.01 check as follows: $703.78 to Locus, $445.12 to property owned by defendants' children and $33.75 to the motor vehicle excise tax bills. Those figures result in a sum of $1.182.65; defendants claim there had been an overpayment of $98.64 on another property owned by them, and they deducted that to arrive at the $1,084.01.

7. Mrs. Whiting testified that she did not receive the payment from defendants and has no record of any correspondence or conversations from defendants to substantiate defendants' contentions. Defendants did not obtain receipts for their payments.

8. G. L. c. 60, Section 54 requires that the instrument of taking be recorded within 60 days of the date of the taking. The Taking in this action was recorded the same day as the taking was made. Section 54 states that "If so recorded, (the taking) shall be prima facie evidence of all facts essential to the validity of the title so taken. . . ."

9. In City of Worcester v. Salo Hoffman & others, 345 Mass. 647 (1963) the court discussed this portion of the statute. "Section 54 is expressly aimed at the individual instrument of taking. The facts essential to the validity of the title are those having to do with the specific property taken, such as the amount of the charges, nonpayment, and the procedural details of the individual taking. . . ."

10. Assuming that the prima facie evidence may be rebutted, the burden is on defendants in that regard. I find and rule that they have not carried their burden and that the taking is correct. The Town's allocation of the $1,084.01 check is understandable, given the total family holdings of the Norton family. Defendants themselves indicated that they wanted part of the check to be applied to family property not in their names, as well as to an excise tax bill for a car belonging to Mr. Norton's mother. I note that if the Town incorrectly allocated parts of the check to other family properties, there would presumably have been an overpayment as to those. Since those properties were in the Norton family, plaintiffs would no doubt have been able to show the overpayments, but there was no such evidence.

11. The instrument of taking was correct. Plaintiff should move for a new finding based thereon.

Judgement accordingly.