September 9, 2019

Worcester, ss.



This case concerns the tax taking of a parcel of land located at Belisle Avenue in Worcester, Massachusetts, abutting the municipal boundary with the town of Auburn. In 2011, the city of Worcester ("the City" or "Worcester") took the property at 20 Belisle Avenue for nonpayment of taxes assessed to Anna Maria Gemme, and conveyed it to Tallage, LLC. Tallage subsequently filed this action for foreclosure of the right of redemption, and this court issued a judgment of foreclosing that right in 2012. However, as it so happens, Anna Maria Gemme was not, in fact, the only owner of the property assessed. The deed into Anna Maria Gemme had erroneously purported to convey to her a portion of the neighboring property, 14 Warwick Street; the City’s assessment and tax taking used this over-inclusive deed as a reference, and its tax deed thereby conveyed to Tallage this portion of the neighboring lot. Of course, no notice of the assessment or of the subsequent foreclosure proceedings was provided to Citizens Bank, N.A. ("Citizens"), who then held a mortgage encumbering the neighboring property, and now owns that neighboring property. Having only recently learned of the judgment foreclosing the right of redemption over property it believed it owned, Citizens has now brought a motion seeking to partially vacate judgment of foreclosure.


The facts, as they appear from the documentary evidence in the record submitted in connection with the Motion to Vacate, appear as follows:

1. A plan recorded in the Worcester County Registry of Deeds (the "Registry") at

2. Plan Book 22, Plan 64 on February 28, 1913 (the "1913 Plan") created a number of lots near the border of Worcester and Auburn. Lots 16, 17, and 18 on the 1913 Plan are bisected by the Auburn-Worcester boundary; Lots 1 through 15 on the 1913 Plan are in Worcester. [Note 1]

3. Pursuant to a deed dated October 24, 1984 and recorded in the Registry the following day at Book 8421, Page 252 (the "1984 Deed"), George J. Gemme conveyed to Arthur Wolfe, Helen Wolfe, Robert Murphy and Joyce Murphy a parcel of land described as Lot 17, Lot 18, and a portion of Lot 16 as they appear on the 1913 Plan. The deed also described the property as the land shown on a plan recorded in the Registry at Book 526, Page 46 (the "1984 Plan"); the 1984 Plan, as compared to the 1913 Plan, appears to show the property to include all of Lot 17, all of Lot 18, and a strip of land from Lot 16 that is eighteen feet wide and runs the entire length of the property, which is approximately 127 feet. The majority of this strip of land lies in Worcester, and the remainder is in Auburn. It is the portion of this strip lying in Worcester ("the disputed strip") that is in at issue in this action. Prior to this conveyance, the original width of Lot 16 in its entirety as shown on the 1913 Plan was 50 feet. [Note 2] The property conveyed by the 1984 Deed is now known as 14 Warwick Street.

4. Notwithstanding the fact that he had already conveyed a portion of Lot 16, pursuant to a deed dated March 8, 1989 and recorded in the Registry on the following day at Book 11970, Page 138 (the "1989 Deed"), George J. Gemme purported to convey all of Lot 16, along with Lots 6, 7, 13, 14, and 15, to Anna Maria Gemme. The property conveyed by the 1989 Deed is now known as 20 Belisle Avenue. [Note 3]

5. On September 24, 2005, the then-owners of 14 Warwick Street (the property conveyed by the 1984 Deed, consisting of Lots 17, 18, and a portion of 16) granted a mortgage recorded in the Registry at Book 37703, Page 177 to Citizens Bank, N.A. ("the Mortgage"). [Note 4]

6. On June 28, 2011, pursuant to G. L. c. 60, §45, the collector of taxes for the city of Worcester executed a deed recorded in the Registry at Book 47605, Page 372 and purporting to convey property to Tallage, LLC, subject to the right of redemption, due to unpaid taxes assessed to Anna Maria Gemme (the "Collector’s Deed"). The Collector's Deed described the land conveyed as: "About 22,893 sq ft of land located at 20 Belisle Ave being designated on Assessor's Plan as Map 26 Block 021 Lot 00016 and now or formerly owned by said Gemme, Anna Maria Deed Ref: Book 11970 Page: 138." The Tax Collector's deed thus referenced the 1989 Deed, the description in which included all of Lot 16 as shown on the 1913 Plan. Citizens Bank received no notice of the assessment or the taking, though it held a mortgage interest over the property originally conveyed by the 1984 Deed. [Note 5]

7. On January 4, 2012, Tallage filed a complaint in the Land Court seeking to foreclose all rights of redemption under the Collector's Deed. The Land Court title examiner assigned to the case pursuant to G. L. c. 60, §66 issued a report determining that the sole party having an interest in the property under the Collector's Deed was Anna Maria Gemme. The title examiner's report, though noting that part of Lot 16 was situated in Auburn, did not identify the fact that a portion of Lot 16 had previously been conveyed out through the 1984 Deed. The Land Court issued a judgment on October 22, 2012, recorded in the Registry at Book 50002, Page 261 foreclosing the right of redemption under the Collector's Deed. [Note 6] Citizens was not given notice of these foreclosure proceedings.

8. Pursuant to a deed dated September 21, 2015 and recorded in the Registry the following day at Book 54327, Page 274, Tallage conveyed 20 Belisle Avenue to Ronald W. Valinski, Jr. and Angela J. Valinski ("the Valinskis"). The deed described the property conveyed as "The land shown as lots 13, 14, 15, and 16 on the [1913] Plan." [Note 7]

9. Citizens subsequently foreclosed on the Mortgage. It conducted a foreclosure sale on September 17, 2017, and pursuant to a foreclosure deed recorded in the Registry on November 1, 2017 at Book 57979, Page 116, conveyed 14 Warwick Street to itself. [Note 8]


On May 20, 2019, Citizens filed a Motion to Partially Vacate Judgment and accompanying Memorandum of Law seeking to partially vacate the October 22, 2012 judgment insofar as it foreclosed the right of redemption over the portion of Lot 16 that was conveyed in the 1984 Deed. On May 28, 2019, the Valinskis filed their opposition to Citizens' motion, and on May 29, 2019, Tallage filed its own opposition. A hearing was held on the motion on May 30, 2019, at which counsel for Citizens, Tallage, and the Valinskis appeared and argued, and after which the motion was taken under advisement.


Citizens argues that it owns a portion of Lot 16 through the 1984 Deed, that the Collector's Deed and judgment foreclosing the right of redemption incorporated this portion, and that it was not served or made a party to the action to foreclose the right of redemption; therefore, it argues, it was deprived of due process of law, and the judgment is partially void.

Tallage argues (1) that Citizens does not have standing to object to the judgment; (2) that the property conveyed by the Collector's Deed does not include any property owned by Citizens; and (3) that Citizens has waited too long to raise any due process concern or object to the judgment. The Valinskis contend that, regardless of any due process violation, the judgment should stand because they are good faith purchasers for value who took title to the property conveyed by the Collector's Deed without knowledge of any infirmity in either the tax assessment or foreclosure proceeding.

I. Citizens' Standing

Before addressing the particulars of the assessment and tax foreclosure, Tallage first contends that Citizens has no interest in the 14 Warwick Street property at all due to irregularities in its mortgage foreclosure, and therefore has no standing to challenge the judgment, even if it does impair the title to 14 Warwick Street. As the sole basis for this argument, Tallage points to the fact that the discharge of the Mortgage was recorded prior to the foreclosure deed. It thus suggests that that Citizens' foreclosure deed is invalid, and having also recorded a release of the Mortgage itself, Citizens possesses neither a fee interest nor a security interest in 14 Warwick Street. This is unavailing. Though the foreclosure deed was recorded after the release, Tallage overlooks that it was, in fact, executed first. A deed transfers title as between the parties on delivery, and need not be recorded in order to effectively do so; the failure to record a deed would simply have the effect of not binding third parties who acquired an interest without notice of it. See G. L. c. 13, §4; King v. Stephens, 9 Mass. App. Ct. 919 , 920 (1980); Jacobs v. Jacobs, 321 Mass. 350 , 351 (1947); Boston v. Quincy Mkt. Cold Storage & Warehouse Co., 312 Mass. 638 , 653 (1942); Fruzzetti v. McAlduff, 9 LCR 69 , 71 n.8 (2001) (Green, J.). Where there is nothing to suggest that the out-of-sequence recording impaired the rights of any third party without notice of the deed, the foreclosure deed would have passed title to Citizens upon execution; the sequence of recording accordingly would not have deprived Citizens of the record interest from which its standing to object to the judgment derives.

Tallage next contends that the terms of Citizens' Mortgage did not actually encumber any property in Worcester, in which city the disputed strip lies, because the Mortgage describes the property as "situated in the town of AUBURN," and lists the property address as "14 Warwick Street, Auburn, MA." In using this language, it contends, Citizens' Mortgage never had the effect of encumbering the disputed strip, and Citizens never took title to the disputed strip following foreclosure of the Mortgage; therefore, even if the judgment erroneously impacted the rights of the true owner of that strip, Citizens itself has no standing to object. This is similarly unavailing. The property description also goes on to state that the Mortgage is "[m]eaning and intending to mortgage the same premises described by [the 1984 Deed]." The 1984 Deed described and conveyed Lot 17, 18, and a portion of 16, as shown on the 1984 Plan. "[A] reference to a prior deed or mortgage has the same effect as if the description in the previous deed or mortgage is copied into the new deed or mortgage." Headwall Recovery Corp. v. Ron- Randall Constr., Inc., 11 LCR 278 , 280 (2003) (Trombly, J.), aff'd 66 Mass. App. Ct. 1118 (2006) (Rule 1:28 Decision). See Coogan v. Burling Mills, 124 Mass. 390 , 393 (1878) (in interpreting a mortgage, "all the deeds referred to must be taken into account in determining what is conveyed"). Where the mortgage clearly incorporates the property description of a prior instrument as the property intended to be encumbered, the fact that the mortgage otherwise "contained incorrect property addresses is of no consequence." Headwall Recovery Corp., 11 LCR at 278. See In re Adams, 462 B.R. 1, 5 (Bankr. D. Mass. 2011) (where mortgage described encumbered property as same premises conveyed by prior deed, but also mentioned only one of the lots from that deed, mortgage held to have encumbered entire property). The Mortgage here incorporated by reference the description contained in the 1984 Deed, and the parties to the Mortgage thus plainly intended it to encumber the entirety of the property conveyed by the 1984 Deed, including both the sections in Auburn and the sections in Worcester.

II. Due Process Violation

"The strong public policy promoting stable and reliable tax titles militates against reopening them - even at the request of proper parties - after the foreclosure is complete." Town of Norwell v. Owners Unknown, 12 LCR 101 , 102 (2004) (Piper, J.). "[A] petition to vacate a prior decree foreclosing the right of redemption under a tax title is 'extraordinary in nature and ought to be granted only after careful consideration and in instances where . . . [it is] required to accomplish justice.'" Sharon v. Kafka, 18 Mass. App. Ct. 541 , 542 (1984), quoting Lynch v. Boston, 313 Mass. 478 , 480 (1943). Pursuant to G. L. c. 60, §69A, after one year following foreclosure of a tax title has passed, no one other than petitioner who foreclosed the tax title can bring an action to vacate a judgment of foreclosure. However, "[i]f there was a denial of due process, the stricture of §69A would not apply." Sharon v. Kafka, 18 Mass. App. Ct. 541 , 544 (1984).

a. Extent of the Collector's Deed

Citizens claims that its right to due process was violated when Tallage foreclosed the right of redemption over a portion of Lot 16 without notification to Joyce Murphy, the true owner of that portion, or to Citizens, the then-mortgagee of the same. In determining whether Citizens' due process rights were violated, the preliminary issue that must first be resolved is whether the scope of the tax foreclosure truly encompassed land in which Joyce Murphy and Citizens held an interest; this is, in turn, dependent on the extent of land conveyed by the Collector's Deed. At the heart of this dispute is George Gemme's ineffective attempt, in the 1989 Deed, to convey a strip of Lot 16 that was owned by another. There appears to be no dispute, and rightly so, that the property actually conveyed by the 1989 Deed did not include the strip of Lot 16 now in dispute. It is axiomatic that "[o]ne cannot convey what one does not own." O'Donoghue v. Commonwealth, 93 Mass. App. Ct. 156 , 163 (2018). George Gemme had conveyed away a portion of Lot 16 through the 1984 Deed; he had no power to convey that same portion at a later time. Accordingly, notwithstanding the 1989 Deed's subsequent attempt to convey all of Lot 16 to Anna Maria Gemme, it would have served only to transfer the remainder of that Lot to which George Gemme still held title.

Nonetheless, Worcester compounded George Gemme's conveyancing error in looking only to the 1989 Deed in its assessment of taxes, and employing that deed's over-inclusive description in its tax taking. In the Collector's Deed, Worcester purported to transfer to Tallage the entirety of Lot 16, bundling it with those other lots contained in the 1989 Deed. On this front, Tallage argues that the Collector's Deed did not actually convey the disputed strip to Tallage in the first place, and that because title to the strip was therefore unaffected by the judgment, the judgment need not be disturbed. It contends that the description of the property in the Collector's Deed references Assessor's Lot 00016, which, as it appears on the Assessor's Map, does not include the disputed portion of Lot 16; rather, it asserts that the disputed strip has instead always been correctly assessed to Joyce Murphy and Citizens as part of 14 Warwick Street. [Note 9] First, it is somewhat disingenuous for Tallage to make this argument now, given that it took the opposite position when, following foreclosure, it conveyed its newly-acquired property to the Valinskis: Tallage's deed to the Valinskis, in an apparent attempt to clarify the description the Collector's Deed, described the conveyed land as including all of Lot 16, with no reservation as to the disputed strip. In any event, contrary to Tallage's argument, the two elements of the description in the Collector's Deed -- the reference to a particular lot shown on the Assessor's Map, and a reference to the 1989 Deed -- must indeed be properly read together as including the disputed strip of Lot 16 previously conveyed by the 1984 Deed.

The depiction of Map 26 Block 021 Lot 00016 ("Assessor’s Lot 000016") on the Assessor's Map contains inconsistencies as to whether it incorrectly incorporates all of Lot 16 as shown on the 1913 Plan, or instead only incorporates the portion of Lot 16 remaining after the 1984 Deed conveyed away the disputed strip. On one hand, a portion [Note 10] of Citizens' property is depicted on the Assessor's Map as adjacent to Assessor's Lot 000016, and as having a listed area of 6,140 square feet. This area figure is, in fact, consistent with the part of Citizens' property shown on the 1984 Plan and 1984 Deed as being in Worcester: the 1984 Plan shows the portion of Citizens' property that is located in Worcester, including the strip added from Lot 16, to be 6,140 square feet. However, in the interpretation of deeds, "[i]it is seldom that area can be a controlling factor." Holmes v. Barrett, 269 Mass. 497 , 502 (1930). "Monuments, courses and distances are generally deemed to be more indicative of the intent of the parties than is the quantity or area mentioned." Morse v. Chase, 305 Mass. 504 , 507 (1940). An area calculation using the distances shown on the Assessor's Map for this triangular portion of Citizens' property does not actually result in a figure of 6,104 square feet. Instead, the distances given for the boundaries of both this triangular portion, as well as for Assessor's Lot 00016 itself, appear to be consistent with the 1989 Deed's incorrect inclusion of all of Lot 16 -- including the strip -- as part of Anna Maria Gemme’s property.

The second element of the Collector's Deed -- its reference to the 1989 Deed -- is also consistent with an intent to include all of Lot 16, including the strip not actually then owned by Anna Maria Gemme, as part of the taking. The legal description in the 1989 Deed expressly included all of Lot 16, including the disputed strip, and this 1989 was then referenced by the Collector's Deed. Where a deed references a prior instrument, it has the same effect as if the entire description of the latter is incorporated into the former. See Abbott v. Frazier, 240 Mass. 586 , 593 (1922). It is true that a deed's reference to a prior conveyance 'must be construed in conjunction with the particular description of the premises which immediately precede[s] it in the deed," Morse v. Chase, 305 Mass. 504 , 508 (1940), and will not overcome a specific and clear property description that is inconsistent with the prior instrument. See Lovejoy v. Lovett, 124 Mass. 270 , 274 (1878). However, the Assessor's Map when taken alone is not a clear, particular, and unambiguous description of the property; moreover, it does in fact appear to be most consistent with, not contrary to, the description in the referenced 1989 Deed. The Collector's Deed must therefore be read as incorporating all of Lot 16, including the disputed strip, insofar as it lies in Worcester.

b. Notice of Foreclosure Action and Timeliness of Motion to Vacate

The Collector's Deed thus purported to transfer to Tallage a portion of Lot 16 that was owned by Joyce Murphy by virtue of the 1984 Deed. Tallage subsequently initiated a petition to foreclose the right of redemption as to this property, and there is no dispute that it afforded neither Joyce Murphy nor Citizens the notice of its petition required by G. L. c. 60, §66. "[A] failure to give notice to a person who has an interest of record in the real estate ... of a proceeding to sell that real estate for nonpayment of taxes ... is a denial of due process of law." Town of N. Reading v. Welch, 46 Mass. App. Ct. 818 , 819-820 (1999). See Teschke v. Keller, 38 Mass. App. Ct. 627 , 634 (1995); Boston v. James, 26 Mass. App. Ct. 625 , 630 (1988). This principle applies just as much to mortgagees of record as it does to the record owner. See Christian v. Mooney, 400 Mass. 753 , 761 (1987) ("Failure to give notice to a mortgagee of record, by personal service or by mail, of a proceeding to sell the mortgaged property for nonpayment of taxes is a denial of due process of law."). Accordingly, the failure to provide Citizens with notice of the petition and an opportunity to participate in the foreclosure proceedings constituted a denial of due process.

Though the bare existence of a due process violation avoids a strict application of the one-year limitation otherwise imposed by §69A, this does not conclude the court's analysis, as it is still necessary to consider the time elapsed between the judgment and the present petition to vacate. "[T]he fact that the year's limit for redemption gives way in the face of a clear due process violation does not mean that the time is extended indefinitely." Town of Brewster v. Sherwood Forest Realty, 56 Mass. App. Ct. 905 , 906 (2002). "When the validity of tax titles is put in question long after the event, it is appropriate for the judge . . . to weigh the factor of time against those making the challenge." Krueger v. Devine, 18 Mass. App. Ct. 397 , 402 (1984). Courts of the Commonwealth have thus frequently declined to vacate judgments of foreclosure where they have sat undisturbed for multiple decades, and afforded more leniency where the challenged judgment is only a few years old. Compare id. (declining to vacate judgment where "fifty years had gone by, and a significant number of conveyances out from the original tax deed had occurred."), and Town of Lancaster v. Foley, 15 Mass. App. Ct. at 968-969 (nineteen-year delay unreasonable), with Town of N. Reading v. Welch, 46 Mass. App. Ct. at 819-820 (vacating judgment of foreclosure four years after execution of tax deed).

The excusable delay in challenging a foreclosure becomes limited, though, "where ... the party making the challenge has sat on his rights for years after hearing of the foreclosure." Town of Brewster v. Sherwood Forest Realty, 56 Mass. App. Ct. 905 , 906 (2002) (finding delay of twenty-three years after learning of foreclosure to be unreasonable). See Vincent Realty Corp. v. Boston, 375 Mass. 775 , 777 (1978) (finding delay of more than two years unreasonable where, though notice had been sent to wrong party, owner still had actual notice of foreclosure proceedings); Town of Brewster v. Owners Unknown, 24 LCR 370 , 372 (2016) (finding delay of twenty months after learning of foreclosure unreasonable). Cf. Town of Norwell v. Owners Unknown, 15 LCR 129 , 129 (2007) (Piper, J.) (vacating foreclosure twenty-one years after judgment because there was no evidence in the record of actual notice of the tax taking). Knowledge of unpaid taxes may function in the same manner as knowledge of the foreclosure itself. See Lamontagne v. Knightly, 30 Mass. App. Ct. 647 , 657 (1991); Lancaster v. Foley, 15 Mass. App. Ct. 967 , 968 (1983).

Here, Citizens' motion to vacate was filed seven years after judgment issued foreclosing the right of redemption. Citizens admits that it became actually aware of the foreclosure earlier this year in conjunction with a proposed sale of its property; there is likewise nothing in the record directly suggesting that Citizens had actual notice of the foreclosure at any time before this year. Tallage argues that Citizens should be charged with constructive notice of the judgment because Citizens should have discovered George Gemme's conveyancing error during its own September 2017 foreclosure of the Mortgage, and this error would have directed Citizens to examine the chain of title to the neighboring property. However, that date is still less than two years prior to Citizens' filing of this motion to vacate. Where the maximum period during which Citizens may have knowingly sat on its rights is less than two years, and nothing in fact directly implicates actual notice at that most distant point, there is not enough to definitively adjudge Citizens tardy. This is particularly the case where imputing constructive notice of the defect to Citizens would implicate reciprocal knowledge on Tallage's own end: if Citizens' mortgage foreclosure proceedings should have led it to investigate the title to the neighboring property, Worcester and Tallage too should have made the same discovery during either the conveyance of the Collector's Deed, the action to foreclose of the right of redemption, or the subsequent conveyance to the Valinskis. Tallage denies having any such knowledge, and Citizens therefore should not fairly be charged with the same. [Note 11]

c. Valinkskis' Bona Fide Purchaser Status, and Effectiveness of the Collector's Deed

The final question the court must address is whether, as the Valinskis argue, the Valinskis' claimed status as good faith purchasers prevents the court from vacating the judgment of foreclosure. It first must be noted that it is not immediately clear whether the Valinskis may claim the benefit of bona fide purchaser status. On one hand, the defect in the tax title here is readily ascertainable from an examination of the records in the Registry. The over-inclusive deed to Anna Marie Gemme is the deed referenced in the Collector's Deed, and immediately precedes it in the chain of title. One need only look a single step back in the chain of title to reach the grantor, George Gemme; an indexed search of his name in the Registry would have revealed that he had previously conveyed to another the land that was being assessed to Anna Marie Gemme. On the other hand, the Land Court issued a judgment foreclosing the right to redemption for the property which they subsequently purchased, and that judgment included the disputed strip; and, as to final judgments of the court "[i]n connection with land transactions, it was decided early in our jurisprudence that '[t]he purchaser is not bound to look beyond the decree when executed by a conveyance . . .; nor to look further back than the order of the court.'" Eastern Sav. Bank v. Salem, 33 Mass. App. Ct. 140 , 145 (1992), quoting Voorhees v. Bank of the United States, 35 U.S. 449, 477-478 (1836). Ultimately, though, it is unnecessary to delve too deeply into the question of whether the Valinskis had constructive notice of this defect when they purchased the tax title from Tallage, as the tax title to that strip is void, and their claimed status as bona fide purchasers would thus afford them no protection.

G. L. c. 60, §37 provides that "[n]o tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading." Nonetheless, the law recognizes numerous circumstances through which a defect in a tax deed or tax sale is sufficiently significant to render the deed absolutely void. See, e.g., McHale v. Treworgy, 325 Mass. 381 , 382 (1950) (tax deed with insufficiently clear description of the assessed land is void); Vanderhoop v. Madison, 18 LCR 335 , 338 (2010) (Cutler, J.) ("[T]ax deeds purporting to convey multiple parcels for a lump sum ... are not merely irregular or defective. They are absolutely void."); McDonough v. Everett, 237 Mass. 378 , 381 (1921) (tax deed which assesses "owners unknown" is void where record ownership of the property is readily ascertainable) [Note 12]; Charland v. Trustees of Home for Aged Women, 204 Mass. 563 , 567 (1910) (tax deed which does not set forth the precise elements required by statute is void).

While the Collector's deed here may arguably fall into a number of these categories, [Note 13] there is one more which squarely applies and unavoidably voids the Collector's deed: "it is settled in this Commonwealth that a tax taking that includes land that the party assessed does not own is invalid and void." Holcombe v. Hopkins, 314 Mass. 113 , 115 (1943). See Streeter v. Worcester, 336 Mass. 469 , 471 (1957); Wood v. Wilson, 256 Mass. 340 , 342 (1926) ("Brown, to whom the taxes were assessed, was not the owner of the whole of the land assessed, which comprised lots A, C and D. He did own a specific part. The entire tract could not be assessed to one who owned but a specific portion of it. ... Because of this assessment to Brown as the owner of the entire tract, the tax sale was invalid."); Stone v. New England Box Co., 216 Mass. 8 , 11 (1913) (where land was assessed to wrong individual due to error in plan, and was not assessed as the property of an unknown proprietor, tax deed was invalid); Desmond v. Babbitt, 117 Mass. 233 , 234 (1875) ("If, with reasonable diligence, they cannot obtain trustworthy information, they would be justified in taxing it as the property of an unknown proprietor; but they would not thereby acquire the right to tax it to a person, by name, who was neither owner nor occupant.").

The facts and holding in Streeter v. Worcester, 336 Mass. 469 (1957) are particularly applicable to present case. In Streeter, the Supreme Judicial Court applied the above principle to conclude that circumstances highly similar to those here render an assessment of taxes invalid, and the resulting tax deed void. Id. at 470-472. In that case, Streeter conveyed all its real estate to a corporation, except one parcel to which it retained title. Id. at 470. The corporation subsequently was assessed for all taxes not only for the various parcels it had received, but also for the parcel that Streeter had retained. Id. When the taxes eventually went unpaid for these various parcels, the city executed a tax deed that included both the parcels actually conveyed to the corporation as well as Streeter's retained parcel, but named only the corporation as the assessed owner. Id. The court held that "[a]s Streeter and Sons Co. was not the owner or in possession of the land on the taxable date the assessment of the tax to the corporation was invalid"; as a result, "the tax is void." It noted that "[t]he assessors might have assessed the land to an unknown person if reasonable inquiry did not disclose the owner or the occupant, but the collector could not include in the tax sale any land the person assessed did not own or occupy." Id. (internal citations omitted). Accordingly, it noted that, given the void tax taking, Streeter "would have had a right to redeem or quiet title to the land during the foreclosure proceeding." Id.

The ultimate result in Streeter differs somewhat from the present case as the court found that, notwithstanding the deficiencies in the tax deed, Streeter's actual notice of the foreclosure proceedings deprived him of standing to later challenge the judgment of foreclosure. As noted above, that is not the case here, given that Citizens was not notified of the foreclosure proceeding and did not unduly delay in moving to vacate the judgment upon learning of it. Accordingly, the conclusions of Streeter and rule provided in Holcombe concerning the effect of this manner of defect on the validity of a tax title do in fact dictate the result of Citizens' challenge. See id.; Holcombe, 314 Mass. at 115. The Collector's Deed named only Anna Maria Gemme as the assessed owner, but included the disputed strip, which was property she did not own; therefore, the Collector's Deed and associated tax sale are absolutely void, at least insofar as they conveyed the disputed strip.

It is for this reason that it is immaterial whether the Valinskis can be categorized as bona fide purchasers. As noted in Bevilacqua v. Rodriguez, 460 Mass. 762 , 778 (2011),

'[T]he law goes a great way in protecting the title of a purchaser for value without notice or knowledge of any defect in the power of the vendor to sell . . .' Rogers v. Barnes, 169 Mass. 179 , 183, 47 N.E. 602 (1897). . . There are limits to the protections provided to bona fide purchasers, however, and '[t]he purchaser of an apparently perfect record title is not protected against all adverse claims.' Brewster v. Weston, 235 Mass. 14 , 17, 126 N.E. 271 (1920). Where the bona fide purchaser is not protected against an adverse claim the purchaser 'must rely upon the covenants of his deed' rather than dispossession of the true owner - that is, there are situations in which it is the purchaser rather than the original owner who must seek recovery from a third person rather than being awarded possession of the property itself.

Generally, the key question in this regard is whether the transaction is void, in which case it is a nullity such that title never left possession of the original owner, or merely voidable in which case a bona fide purchaser may take good title.

(Citations omitted). A bona fide purchaser thus receives no protection from a void deed, as that deed never passed title in the first instance. See id.; Pinti v. Emigrant Mtge. Co., Inc., 472 Mass. 226 , 245 (2015) (Cordy, J., dissenting) (noting that where mortgage foreclosure sale is void, "a mortgagor may successfully unwind sales to innocent third parties years after the foreclosure, when the property has been conveyed to bona fide purchasers two, three, or four times removed from the foreclosure sale."). Indeed, it is not uncommon for a tax deed to be declared void by the court, invalidating the title of the purported present owner, despite many intervening conveyances. See, e.g., Rossire v. Boston, 4 Allen 57 , 58 (Mass. 1862); Vanderhoop, 18 LCR at 336. As described above, the manner of defect which afflicts the Collector's Deed renders it absolutely void, not voidable, with regard to the portion of land not then owned by Anna Maria Gemme. It therefore conveyed to Tallage no title to the disputed strip, and the Valinskis themselves took no title to that area, whether or not they were good faith purchasers.

d. Extent of the Order Vacating Judgment

No notice having been provided to Citizens, who held an interest in the property subject to the judgment of foreclosure, there is no doubt that the judgment must be vacated at least in part. At this juncture it is important to note that Citizens has not requested that the judgment of foreclosure be set aside in its entirety, but instead that it be vacated only insofar as it affects the disputed strip. This is indeed the proper result where there was a failure to notify one party of foreclosure proceedings, but no apparent defect in notice of the foreclosure as it relates to another party's separate interest. See Town of N. Reading v. Welch, 46 Mass. App. Ct. 818 , 820 (1999) (foreclosure vacated only as to survivorship interest held by party which did not receive notice, but not vacated as to other party's possessory interest). The difficulty here, however, is that the court is presented with not only a failure of notice of the foreclosure proceeding, but also what is plainly a fatal infirmity in the underlying tax deed, at least as it applies to the disputed strip. In the face of this invalidity, there is nothing for Citizens to redeem [Note 14]; and, in order to vest title to the disputed strip where it should properly lie, vacating the judgment must necessarily be accompanied by an order declaring the Collector's Deed to be invalid and of no force and effect. It is here that the difficulty arises - what is the proper scope of an order invalidating the Collector's Deed? On one hand, the above cases refer to the defective tax deeds in a general manner as invalid and void, with no clear indication that the deed may or should remain partially intact as to any property purportedly conveyed. The court must accordingly recognize the possibility that the defects in the tax assessment and taking here might have had the potential to void the Collector's Deed in its entirety, even as to the portion beyond the strip now held by the Valinskis.

Yet on the other hand, Citizens has raised no challenge to Valinskis' ownership of the remainder of the property which would have been conveyed by the Collector's Deed. It has not briefed the impact of the deed's defects on its validity as a whole, and has not argued that the deed failed to pass title to the remainder. Indeed, the validity of the Collector's Deed as it relates to that remaining portion of the property is an issue properly raised by Anna Marie Gemme, to whom it would revert in the event that the Collector's Deed were to be declared void in toto. Any such objection should have been made by her in the original foreclosure proceeding. She did not then challenge the City's assessment and taking of her property, nor has she raised a challenge now, and significantly, would not have standing to do so: unlike Citizens, there is no apparent defect in her notice of the original foreclosure proceedings, and no comparable due process violation would entitle her to seek relief from the judgment at this later stage. In light of this, the court determines that the most prudent course is to limit the order both vacating the judgment and addressing the validity of the Collector's Deed to only affect the property owned by Citizens - namely, the disputed strip. Accordingly, the judgment shall be vacated only as to the strip of Lot 16 conveyed by the 1984 Deed, which is the only property subsumed by the judgment in which Citizens has an interest.

For the reasons set forth above, Citizens' motion is ALLOWED, with an order and judgment to enter in accordance with this decision.


[Note 1] Ex. D to Motion to Partially Vacate Judgment ("Citizens' Motion").

[Note 2] Exs. D, E to Citizens' Motion.

[Note 3] Ex. G to Citizens' Motion.

[Note 4] Ex. B to Citizens' Motion.

[Note 5] Ex. H to Citizens' Motion.

[Note 6] Ex. 7 to Opposition of Plaintiff Tallage, LLC to Motion of Citizens Bank N.A. to Partially Vacate Judgment in Tax Lien Case ("Tallage Opposition").

[Note 7] Ex. I to Citizens' Motion.

[Note 8] Ex. B to Citizens' Motion.

[Note 9] It is worth noting that this is a strange tack for Tallage to follow, as it would lead to the same result ultimately sought by Citizens, albeit by a different route: the underlying foundation for the holding Tallage suggests would be that that title to disputed strip never left Joyce Murphy, and is thus now held by Citizens.

[Note 10] As the property is located partially in Worcester and partially in Auburn, only the portion of the property located in Worcester is depicted on the Assessor's Map.

[Note 11] On a similar note, both Tallage and the Valinskis point to their reliance on the opinion of the examiner appointed by the Land Court in connection with the foreclosure of the right of redemption. Here, the Land Court examiner failed to discover that part of Lot 16 was, in fact, not owned by Anna Maria Gemme, and his title report accordingly did not identify any other owners or interested parties. Without opining further on whether his report should have uncovered this, an error in a Land Court examiner's title report does not prevent the court from vacating a judgment of foreclosure, and does not insulate one's tax title from otherwise fatal defects. See, e.g., Town of N. Reading v. Welch, 46 Mass. App. Ct. 818 , 819 (1999) (affirming order vacating prior judgment of foreclosure in circumstances where examiner failed to identify life estate); Christian v. Mooney, 400 Mass. 753 , 762 (1987) (noting that arguments for vacating judgment of foreclosure were potentially viable in circumstances where examiner was negligent); Town of Norwell v. Owners Unknown, 15 LCR at 131 n.14 (vacating judgment of foreclosure in circumstances where examiner erred in failing to identify true owner).

[Note 12] It is worth noting that, even if it had assessed the property to an unknown owner, this would likely still have resulted in a due process violation, given the ease with which the actual owner of the disputed strip is apparent. It is true that "[p]ractical considerations, as well as unknown owners' due process rights, have to be relevant in determining how far a municipality must search" when attempting to locate an unknown record owner. Christian v. Mooney, 400 Mass. 753 , 761 (1987). Nonetheless, a town's assessor is charged with knowledge of the information contained in the registry of deeds. See Hardy v. Jaeckle, 371 Mass. 573 , 579 (1976). Where "the record owners were ascertainable ... the town's failure to assess taxes to them, to make a tax taking from them, and to list them in any notice concerning the foreclosure proceeding could well have been 'substantial' or 'misleading,' thus invalidating the tax title." Christian, 400 Mass. at 762. The true owner of the disputed strip was here readily ascertainable from the documents recorded at the Registry.

[Note 13] In particular, a deed which mistakenly includes a portion of a neighboring parcel would necessarily run afoul of the rule prohibiting the conveyances of multiple owners' parcels in a single deed. It is also possible that the reference in the Collector's Deed to an unclear assessor's map strips the deed description of its necessary clarity.

[Note 14] Typically, vacating a judgment of foreclosure for a failure to provide notice re-opens the window during which a property owner can redeem their property through payment of the owed taxes. See, e.g., Town of Russell v. Barlow, 24 LCR 404 , 413 (2016) (Foster, J.); Town of Norwell v. Owners Unknown, 15 LCR at 132.