STEWART TITLE GUARANTY CO. vs. THE TOWN OF RANDOLPH.

Plaintiff seeks a declaration that title to two properties in the Town of Randolph (the "Town") are free and clear of any encumbrances or defects resulting from tax assessments or takings by the Defendant. Plaintiff also seeks injunctive relief against further foreclosure action against the properties.

Plaintiff's motion for summary judgment was heard on February 5, 1992. At the hearing counsel reviewed an "Affidavit of Richard S. Blank" (the "Affidavit") dated January 30, 1992, filed with Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment. The Affidavit and its exhibits are incorporated herein for purposes of any appeal. A copy of the Affidavit (but not its exhibits) is attached hereto. Counsel stipulated that all the twenty five numbered Exhibits to the Affidavit, except for Exhibits 24 and 25, are introduced as evidence.

I find and rule as follows:

1. This action relates to two parcels of land in Randolph, one at 25 Martindale Road ("Martindale Road Property"), and the other at Route 128 ("State Highway Property"), also known as North Main Street (jointly referred to as "the Properties"). The State Highway Property is registered land. The Martindale Road Property is unregistered land.

2. By deed dated October 7, 1987 (Exhibit 6 to the Affidavit), William A. Davison and Paul W. DiMaura, trustees of the Blue Hills Norfolk Realty Trust, conveyed the Properties to Arturo J. Gutierrez, John A. Cataldo and William J. Eisen, trustees of the Ingodwe Realty Trust ("Ingodwe"). The Deed is recorded in Norfolk County Registry of Deeds (all recording and registration references hereinafter are to that Registry) at Book 7765, Page 610 and the deed was also registered as Document 120934. Parcel 1 in that deed is the State Highway Property and Exhibit 6 includes a copy of Transfer Certificate of Title 127407 issued to Ingodwe. Land Court Plan 25097A, referred to in the Certificate of Title, is not included with the Affidavit, but the parties submitted a copy, which I incorporate herein.

3. The parties also submitted after the hearing, and I incorporate herein, an attested copy of a portion of the Town's Assessor's Plan for 1897 (the "1987 Map"), labeled "Town Of Randolph Board of Assessors Randolph, Mass. Date, Map: July 31, 1963, Photo No. 2". The State Highway Property, as shown on Land Court Plan 25097, appears as lot "1 13.23 AC. CAL." on the 1987 Map. Because the 1987 Map shows zoning lines, it is not at first apparent that the State Highway Property includes the two small unnumbered "R" lots at the bend in Martindale Road, but it does.

4. Parcel 2 in Exhibit 6 to the Affidavit is the Martindale Road Property, a much smaller parcel, located on the northerly side of Martindale Road abutting the southwesterly corner of the State Highway Property. The Martindale Road Property is shown as Lot 19 on the 1987 Plan.

5. On or about October 13, 1987, Plaintiff issued an Owner's Insurance Policy in the amount of one million dollars to Ingodwe, insuring Ingodwe's title to the Properties. A copy of the policy was submitted into evidence after the hearing, by agreement. The policy took no exception for real estate taxes and assessments for any year prior to the fiscal year commencing July 1, 1987.

6. The Town recorded tax takings in 1967 purportedly involving the Properties, one at Book 4432, Page 242 and the other at the same Book, Page 243. These are Exhibits 2 and 5 to the Affidavit. Both were for 1965 taxes assessed to Blue Hills Development Co., Inc. The taking at page 242 described the land taken as "Blue Hills Development Co, Inc-A parcel of land in said Randolph on No. Main Street, being Plot 20 on Plan 530 in the Assessor's Office." The taking at Page 243 described the land taken as "Blue Hills Development Co, Inc-A parcel of land in said Randolph on Wilson Street, being Plot 1 on Plan 540 in the Assessor's Office."

7. Plan 530 is Exhibit 1 to the Affidavit and Plan 540 is Exhibit 4 thereto. Counsel stipulated that the Martindale Road Property is included in Lot 20 on Plan 530 and between them the two takings account for all the State Highway Property. The two takings included both the Properties (and also considerable adjoining lands).

8. On October 8, 1975 the Town recorded Notices of Foreclosure actions in this Court, at Book 5186, Pages 168 and 169. Our records show that both actions were dismissed on June 25, 1986 for lack of prosecution.

9. On September 10, 1987, the Town's Collector of Taxes issued a municipal lien certificate ("MLC") for the State Highway Property, registered as Document 533134 (Exhibit 22 to the Affidavit). On September 11, 1987, the Collector issued an MLC for the Martindale Road Property, recorded at Book 7765, Page 599 (Exhibit 23 to the Affidavit). Both MLC's indicate outstanding taxes for the year 1987 only. There are no other outstanding taxes indicated on either MLC.

10. On or about January 2, 1989, the town sent two Notices of Foreclosure to Blue Hills Development Co., Inc., former owner of the Properties. These notices indicated tax liens against the Properties in the amounts of $45,560.32 and $67,000.39.

11. At the time of the 1967 takings, the State Highway Property was registered land, see Original Certificate of Title 61841 dated September 30, 1958 standing in the name of Blue Hills Development Company, Exhibit 7 to the Affidavit. No taking was registered against that Certificate. The property was conveyed on December 30, 1986 to the Trustees of Blue Hills Norfolk Realty Trust, Certificate of Title 125446 (Exhibit 8 to the Affidavit), which bore no mention of the 1967 taking. Ingodwe's Certificate of Title has no reference to a taking.

12. G. L. c.60, §23, as in effect in 1987 provided that an MLC may be recorded or registered within 150 days after its date (both MLC's were) and

if so filed shall operate to discharge the parcel of real estate specified from the liens for all taxes, assessments, or portions thereof, rates and charges which do not appear by said certificate to constitute liens thereon, except taxes, assessments, or portions thereof, rates and charges with respect to which there has been filed for record or registration evidence of a taking or a sale by the municipality or concerning which a statement has been so filed under section thirty-seven A or under any other provision of law;

13. No evidence of a taking or any statement under §37A or under any other provision of law was filed with respect to the State Highway Property and therefore the MLC discharged any taxes or assessments against the State Highway Property except the 1987 taxes shown thereon.

14. That achieves the result through the back door. The front door is that the 1967 taking was, under G. L. c. 60, §53, invalid as against the State Highway Property because the taking was not registered within 60 days after the date of the taking. Note in this connection that for purposes of construing §53, the definition of "recorded" means "registered", when speaking of registered land, G. L. c. 4, §7, cl. seventeenth.

15. The Town argues that Ingodwe is not a purchaser for value and in good faith and that Ingodwe had actual or constructive knowledge of the 1967 taking. Even if Ingodwe had knowledge of the taking, it is not subject to it (as to the State Highway Property) because the taking was not registered; the taking was invalid and knowledge is beside the point. I therefore grant summary judgment as to the State Highway Property.

16. What about the Martindale Road Property? It is a very small portion of the approximately 33 acre parcel taken by the taking recorded at Book 4432, Page 242, for taxes assessed against Blue Hills Development Co., Inc.

17. By deed recorded September 2, 1949 (Exhibit 7 to the Affidavit) at Book 2854, Page 223, Hilda C. Snow conveyed to Blue Hills Development Company, a Massachusetts corporation, an approximately 47 acre parcel of land which included the Martindale Road Property.

18. The Martindale Road Property was conveyed by Blue Hills Development Company in 1953 to one Raymond A. Mucci. It thereafter was conveyed many times until, by a deed dated December 18, 1973 but not recorded until December 31, 1986, it was conveyed by one Augusta N. Macrokanis to Blue Hills Development Company. The Affidavit does not follow the title at all times, but it appears clear that record title was not in Blue Hills Development Company at the time of the 1967 taking.

19. Under Boston v. Quincy Market Cold Storage and Warehouse Company, 312 Mass. 638 (1942) and G. L. c. 59, §11 and c. 60, §56 assessment and taking can be against the owner in fact, as well as the record owner. Does that mean that the 1967 taking could be "evidence of a taking" under the MLC statute quoted at 12 above?

20. An unqualified "yes" would be a torpedo in the side of G. L. c. 60, §23. It would mean a conveyancer would have to undertake (possibly extensive) investigation beyond the usual following of the record title. On the other hand, §23 should not operate as a free pass for someone with actual knowledge. Consistency with G. L. c. 183, §4 leads me to find an exception for actual notice in §23.

21. Therefore, as to the Martindale Road Property, this action must go to trial to establish whether Blue Hills Development Co., Inc. was the owner in fact at the time of the 1967 taking and its 1965 assessment and, if so, whether Ingodwe had notice of that when Ingodwe took title. The facts appearing in the Affidavit as to the Martindale Road Property cross the genuine issue threshold under Mass. R. Civ. P. 56(c). The matters contained in paragraphs 1 through 17 above appear without substantial controversy and are deemed established under Mass. R. Civ. P. 56 (d) for purposes of trial.