16 Mass. App. Ct. 981 | Mass. App. Ct. | 1983
We have here another instance of prospecting among old tax titles for nuggets in the form of procedural flaws. See Devine v. Nantucket, ante 548 (1983).
On August 30,1935, the collector of taxes of Kingston made a tax taking of five lots which had belonged to Marks F. Braunecker. Rather than foreclosing the tax titles, the town applied to the Commissioner of Corporations and Taxation under the “lands of low value” procedure contained in G. L. c. 60, § § 79 and 80, as amended by St. 1935, c. 173, § 1 and 2, respectively. Those proceedings culminated on April 20,1939, in the grant of a deed of the property to Kingston by the treasurer of the town. The town, in turn, conveyed the property to John G. Dixon, Jr., on February 27, 1956. The individual defendants are Dixon’s heirs. The plaintiff is the heir of Braunecker.
Braunecker, who had originally owned the locus, died October 27, 1932. The unpaid taxes for which the property was taken were those assessed as of April 1,1933 (the assessment date until the enactment of St. 1933, c. 254, § 29), and the assessment was to Marks F. Braunecker, who was then dead. Tax bills had been sent to his home in Plymouth, and they were not returned. A demand for the taxes (in accordance with G. L. c. 60, § 16) mailed October 2, 1934, was similarly addressed to Marks F. Braunecker at his home in Plymouth. The fault upon which the plaintiff seizes to attack the tax title was the assessment and demand upon Braunecker after he was dead and his death had become a matter of record. Under G. L. c. 59, § 11, as then in effect, taxes were to be assessed “to the person who is either the owner or in possession thereof on April
The facts in the instant case are altogether different from those in Bartevian v. Cullen, 369 Mass. 819, 821, 824-825 (1976), in which the tax bill was sent simply to “Vera M. Bartevian, Plymouth, Mass.,” a town in which she had never lived or even spent a night, resulting in no bill or demand ever reaching the taxpayer, whose mailing address was easily available to the authorities. Pass v. Seekonk, 4 Mass. App. Ct. 447 (1976), upon which the plaintiff relies heavily, is equally distinguishable. In that case the town failed to introduce evidence as to where the collector of taxes mailed his demand, or to whom. There was evidence of a diligent administrator “aware of the assets of the estate and alert to protect them.” Id. at 451. The failure to serve the demand on him could, from the facts, be found to be a substantial error. In the instant case, by contrast, there was evidence that the administrator, and certainly his agent, were aware of the tax bills and demand; that for the years 1934 and 1935, i.e., prior to the culmination of divestiture of the Braunecker title, bills had been addressed and mailed to the heirs of Braunecker, i.e., correctly; that the estate faced cash claims; and that the administrator had reason to abandon land he thought to be of marginal value.
Notwithstanding the opinion of the United States Supreme Court in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983), decided after
Judgment affirmed.
By St. 1933, c. 254, § 29, this was changed to January.