Quimby v. Quimby

• Decision Date: 29 December 1978
• Docket Number: No. 78-127,78-127
• Citation: 395 A.2d 1247,118 N.H. 907
• Parties: Phyllis E. QUIMBY v. Forest P. QUIMBY et al.
• Court: New Hampshire Supreme Court

Page 1247

395 A.2d 1247

118 N.H. 907

Phyllis E. QUIMBY v. Forest P. QUIMBY et al.

No. 78-127.

Supreme Court of New Hampshire.

Dec. 29, 1978.

Upton, Sanders & Smith, Concord (Ernest T. Smith, III, Concord, orally), for plaintiff.

James Koromilas, Dover, by brief and orally for defendant.

PER CURIAM.

This equity proceeding concerns the ownership of property which Ina E. Perkins, the real defendant in this case, claims through a tax deed, and which purportedly was transferred at an earlier date to the plaintiff Phyllis Quimby, by a divorce decree. We find no error in the trial court's determination that defendant Ina Perkins holds title.

The property in question consists of land and a residence located at 106 Mount Vernon Street in the City of Dover. In 1964, title to the premises passed by devise to Forest P. Quimby, former husband of the plaintiff. At that time the plaintiff and Mr. Quimby were estranged from one another and had not communicated in many years; the plaintiff did know, however, that Forest was living in New York with a woman who called herself Elsie May Quimby. In September 1964, Forest executed a quitclaim deed to the Dover property in favor of Elsie May Quimby. The deed was recorded in Elsie's name at the Strafford County Registry of Deeds, but it bore no seal and was not signed by the plaintiff. In March 1965, the plaintiff filed divorce proceedings against Forest, who, in April of that year, wrote a letter declining appearance and indicating his wish that plaintiff be awarded "any property" he might own in New Hampshire. By decree dated July 6, 1965, the plaintiff was awarded the property free of all claims of Forest. The decree was never recorded. The plaintiff first learned of the purported conveyance to Elsie May in September 1965.

After her divorce the plaintiff took possession of the Dover residence and occupied it as her home. Upon learning of the attempted conveyance to Elsie May, plaintiff commenced a petition to quiet title against both Forest and Elsie May, but it was later dropped by her attorney, ostensibly without plaintiff's knowledge. The bill in equity and the writ in aid of it were recorded in the registry of deeds along with a notation on the deed to Elsie May stating that it was void and of no effect. The notation had been made by plaintiff's attorney.

Defendant Ina Perkins, a stepsister of Forest Quimby, became interested in acquiring the Mount Vernon Street property in 1965. She paid the 1965 taxes on the premises in 1966, and did the same in the years 1968 and 1969. She let the 1970 and 1971 taxes lapse, and in 1973, she redeemed the 1970 taxes and purchased the property at a tax sale. Ina received a deed from the city in July 1974, and thereupon notified the plaintiff of her claim of ownership. Like the quitclaim deed to Elsie May, the deed to Ina bore no seal. After receiving her deed Ina made a demand for rent. When no rent was paid she filed a writ of possession, RSA 540:13, in district court. The plaintiff, in turn, filed a plea of title, RSA 540:17, thus causing the case to be removed to the superior court, and also filed a bill in equity to quiet title in the superior court. Plaintiff's action to quiet title was joined with Ina's cause and tried by the court without a jury. Both Forest and Elsie May defaulted, and the court found in favor of Ina. The court ruled that Ina had good title to the property and that the plaintiff had to pay rent into the court during the pendency of the cause. Plaintiff's exceptions were reserved and transferred by Dunfey, J.

In reaching its decision, the trial court made several findings that were crucial to the outcome. The court found that the plaintiff paid the taxes on the premises only once during the entire time of her residence there, and further that she did this only after happening upon a notice of a proposed tax sale posted in the city hall. That was in 1967. At no time did the plaintiff notify the tax collector that she claimed ownership of the property or that she would consent to being taxed for it. Moreover, the receipt she was given when she paid the taxes in 1967 read "paid by Phyllis E. Quimby," but listed Elsie May Quimby as the property owner. Although the plaintiff already claimed ownership of the property, she attended the tax sale held in 1967 with the professed intent to purchase. The court found, however, that her payment of the taxes constituted neither a purchase nor a redemption. Plaintiff never inquired of her ex-husband why the taxes had not been paid; neither did she notify the city tax collection office of her claimed ownership even though she continued to receive and return tax notices from the collector's office, albeit they were addressed to Elsie May Quimby. Based upon the plaintiff's annual receipt of the tax notices and her knowledge of property tax procedures gained from her...