Opinion
23-P-747
07-15-2024
CHARLES CLARK v. JEFFREY JOHNSON, trustee,[1] & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case is before us on the report of a Land Court judge pursuant to Mass. R. Civ. P. 64(a), as amended, 423 Mass. 1403 (1996). The question reported is whether a tax deed dated August 25, 1892 that purported to convey a parcel of about eight acres of land in Yarmouth Port (the property) to Thacher T. Hallet (Thacher) was valid, where the tax deed was not recorded within thirty days of the date of sale as required by St. 1888, c. 390, § 43. We agree with the Land Court judge that the tax deed was not valid.
Background.
We set forth the facts from the judge's report and the summary judgment record, supplemented by our own review of the documentary evidence. The source deed for the property is dated October 24, 1823, conveying it from Hannah Hallet Bassett to Ansel Hallet. Ansel died intestate in 1832, survived by his wife Anna and six children.
Sixty years later, in 1892, eleven heirs of Ansel Hallet, including Thacher, each held a fractional interest in the property. In July 1892, the town of Yarmouth (town) made a demand to one of the heirs, Oliver Hallet, for payment of $1.40 in real estate taxes. The taxes remained unpaid, and the town gave notice that the property would be sold by public auction.
A public auction sale of the property was held on August 16, 1892. The high bidder was Thacher, who bid forty-seven dollars. The town's tax collector executed a deed dated August 25, 1892, purporting to transfer the property to Thacher for forty-seven dollars. At the time, St. 1888, c. 390, § 43, provided, that such a tax deed "to be valid, shall be recorded within thirty days from the day of sale." However, the tax deed was not recorded until September 27, 1892.
As of the date of the auction, Oliver Hallet was still living.
More than a century later, plaintiff Charles Clark petitioned to register the property, to which he claims title through his ancestor, Thacher; alternatively, Clark claimed title by adverse possession under color of title. The petition to register the property was opposed by, among others, defendants Jeffrey Johnson, trustee of Old Hyannis Road Realty Trust; Amanda Seminara; and Andrew R. Seminara (collectively, Johnson), who claim a record interest in the property, as well as by Janice Hallet Hewins and Maryann Landry, who assert that as Hallet heirs they also have ownership interests in the property. The town of Yarmouth also appeared as a defendant seeking to protect certain easement rights.
Clark filed a motion "to Validate the Validity of Tax Taking in 1892," which the judge treated as a motion for summary judgment. On November 29, 2021, the judge denied summary judgment for Clark, concluding that the tax deed did not convey the property to Thacher because it was not recorded within thirty days of the sale. The judge did not reach Clark's claim for adverse possession.
In January, May, and July, 2022, Clark filed additional memoranda and supporting materials, which the judge treated together as a motion for reconsideration, and denied the motion. The judge rejected Clark's argument that anyone who owned a fractional interest in the property prior to the tax sale could have redeemed it within two years afterwards by tendering the purchase price and any taxes paid, as permitted by St. 1888, c. 390, § 57. The judge concluded that because the tax deed did not convey title to Thacher, "[w]hether any of the . . . Hallet heirs attempted to redeem does not change the fact that the tax deed was void."
In the Land Court, Clark continued to maintain that the 1892 tax deed was valid. The judge noted that the question whether the 1892 tax deed was valid was ripe for appellate review, noting that it was an "important" question of law and the facts concerning the tax deed were "undisputed." The judge reported to this court the determination whether the orders denying summary judgment and the motions to reconsider were correct.
Discussion.
Because the issue before us is a question of law and because it was decided on summary judgment, we consider it de novo. See Anderson v. Gloucester, 75 Mass.App.Ct. 429, 432 (2009). The judge concluded that because the tax deed was recorded late, it was "invalid, it was void[,] and [it] did not convey title to Thacher Hallet." We agree.
The statutory authority for a municipality to collect unpaid taxes by means of a tax sale has existed for centuries and "used to be the customary method of tax collection." Tallage Lincoln, LLC v. Williams, 485 Mass. 449, 464-465 (2020). Massachusetts courts strictly construe tax sale statutes, holding that "a failure to comply with the statutory requirements, even in minute particulars, is fatal." Charland v. Home for Aged Women, 204 Mass. 563, 567 (1910). See, e.g., Koch v. Austin, 225 Mass. 215, 216-217 (1916) (tax sale invalid because tax collector charged twenty-cent fee not authorized by law); Shurtleff v. Potter, 206 Mass. 286, 288-289 (1910) (tax sale invalid because notice of sale misstated tax due by fifty cents); Williams v. Bowers, 197 Mass. 565, 567 (1908) (tax sale invalid because notice of sale did not sufficiently describe property); Downey v. Lancy, 178 Mass. 465, 467 (1901) (tax sale deed void because it did not describe demand on owner for payment of taxes).
The statute at issue here, St. 1888, c. 390, § 43, required that the tax deed "to be valid, shall be recorded within thirty days from the day of sale." That statutory requirement was "clear" and "mandatory," and "the [tax] collector's deed does not convey title unless this requirement is complied with." Wood v. Wilson, 256 Mass. 340, 342 (1926) (construing similar language in St. 1909, c. 490, pt. 2, § 44). See also Boston v. De Grasse, 317 Mass. 523, 524 (1945) ("A tax deed not . . . recorded [within statutory time period] conveys no title whatever").
The tax deed dated August 25, 1892 stated that the auction occurred on August 16 and the tax deed was recorded on September 27, which was more than thirty days later. We need not pause to consider whether "the day of sale" in St. 1888, c. 390, § 43 meant the date of the auction (August 16), or the date of the tax deed (August 25), because in any event more than thirty days elapsed after the later date and before the tax deed was recorded on September 27. The documentary record is clear that tax deed was recorded more than thirty days after the day of the sale.
Thirty days from August 25, 1892, was Saturday, September 24. The next business day was Monday, September 26, and so the recording on Tuesday, September 27 was late.
It appears that the tax collector wrote the tax deed on August 25, but then held onto it until Thacher paid the amount due. The tax deed states, "I, . . . in consideration of the said sum of forty seven Dollars to me paid by said Thacher T. Hallet, the receipt whereof I do hereby acknowledge, do hereby give, grant, bargain, sell and convey unto him . . . the [property]" (emphasis added). A 1984 deed through which Clark traces his title describes the property with reference to the 1892 tax sale, stating that Thacher paid the amount due on the sale in two checks. The first check, for five dollars, was dated August 16, 1892, the day of the auction. The second check, for $43.40, was dated September 26, 1892, the day before the tax deed was recorded. The language in the tax deed acknowledging the tax collector's receipt of the consideration did not excuse the failure to timely record the tax deed. See Wood, 256 Mass. at 342 ("The judge of the land court was in error in ruling that the 30 days does not begin to run until the deed is delivered").
Clark argues that the 1892 tax deed must have been valid because it stated that "the sale . . . has, in all particulars, been conducted according to the provisions of law." Certainly there is no dispute that the tax deed set forth the necessary prerequisites to the sale at auction. See Devine v. Nantucket, 16 Mass.App.Ct. 548, 551 (1983) ("The collector, back in 1898, had made demand [St. 1888, c. 390, § 30], given notice by posting and advertisement [St. 1888, c. 390, §§ 35-37], filed and recorded the required affidavit of demand and notification [St. 1888, c. 390, § 39], and bought the property at a public sale [St. 1888, c. 390, § 48]"). But for the tax deed to be valid, it had to have been recorded within thirty days after the sale. It was not.
Alternatively, Clark argues that the August 1892 transaction was not a tax sale under St. 1888, c. 390, § 30, but rather a "redemption" of the property by Thacher under § 57. Clark bases this argument on the language of the tax deed stating that the sale was "subject to the right of redemption by any person legally entitled to redeem the same." (See St. 1888, c. 390, § 43 (tax sale "subject to the right of redemption"). The right of redemption provided that
"The owner of real estate taken or sold for payment of taxes . . . may within two years from the day of taking or sale redeem the estates taken or sold by paying or tendering to the collector, when he exercises the power of taking, the amount of the tax for which said property was taken, with the charges and fees allowed to him, and all intervening taxes; or to the purchaser . . .the original sum and intervening taxes paid by him."
St. 1888, c. 390, § 57. Clark argues that because Thacher was one of the owners of the property sold for payment of taxes at the August 1892 auction, he was entitled under § 57 to redeem the property at any time within two years of the tax sale. The argument is unavailing.
As the judge noted, because the tax deed was not timely recorded, it was never valid and did not convey the property to Thacher. There was no tax sale for Thacher or any of the other owners of the property to redeem. Title to the property remained as it was before the tax deed: in the various heirs of Ansel Hallet who had an interest in the property as of August 16, 1892.
In his motion to reconsider, Clark disputed the validity of the ownership interests of Hewins and Landry in the property and thus their standing to oppose his petition for registration. The judge declined to reach those issues, noting that they were not part of the motion for summary judgment and were not decided in his ruling. To the extent that Clark raises them again here, we too decline to reach them. We express no position on who might have an ownership interest in the property. We leave that issue and Clark's adverse possession claim for the Land Court judge to decide.
We conclude that the Land Court judge properly denied the motions for summary judgment and for reconsideration.
Johnson's request for appellate attorney's fees and costs is denied.
Order entered November 29, 2021, denying motion for summary judgment affirmed.
Order entered January 6, 2023, denying motion for reconsideration affirmed.
The panelists are listed in order of seniority.