Town of Lancaster v. Foley

• Decision Date: 24 March 1983
• Citation: Town of Lancaster v. Foley, 446 N.E.2d 1080, 15 Mass.App.Ct. 967 (Mass. App. 1983)
• Parties: TOWN OF LANCASTER v. Adrienne M. FOLEY et al. 1
• Court: Appeals Court of Massachusetts

Page 1080

446 N.E.2d 1080

15 Mass.App.Ct. 967

TOWN OF LANCASTER v.Adrienne M. FOLEY et al.¹

Appeals Court of Massachusetts Worcester.

Argued Feb. 15, 1983.

Decided March 24, 1983.

Willard Ide Shattuck, III, Fitchburg, for Richard W. Beuttel et al.

Mark B. Schmidt, Boston (Salvatore F. DiMasi, Boston, with him), for Adrienne M. Foley et al.

Louis N. Levine, Acton, for plaintiff.

Before HALE, C.J., and CUTTER and KAPLAN, JJ.

RESCRIPT.

The town, on July 3, 1980, filed a petition for registration (G.L. c. 185) of land taken by it many years earlier for nonpayment of taxes.Part had been taken in 1963 from predecessors in title of the Foleys (see note 1) by judicial foreclosure ("1963 foreclosure") under G.L. c. 60, §§ 65, 68 & 69.Another portion was the subject of administrative proceedings (concerning land of low value, G.L. c. 60, §§ 79 to 80B) involving a predecessor of the Wells group (see note 1).These proceedings were completed in 1945("1945 proceedings").

After a report upon the registration petition by a Land Court examiner, an order of notice on that petition, duly published, was issued returnable on April 13, 1981.This named as parties the members of the Wells group which represented the taxpayer whose interests had been the subject of the administrative 1945 proceedings.In accordance with Land Court practice, the notice did not mention the Foleys, whose predecessor's land had been acquired in the judicial 1963 foreclosure.Other parties who seasonably filed answers were defaulted on July 14, 1981, for non-appearance.After further proceedings, an order for decree was entered by a Land Court judge on December 1, 1981.

From January 11, 1982, to March 8, 1982, more than eight months after the return day, four separate motions were filed (one by the Foleys and three by members of the Wells group) for leave to file late answers in the registration proceedings.Either directly or in an accompanying draft of answer or in affidavits, each such motion asserted alleged defects in the 1945 proceedings or in the 1963 foreclosure.Extended claimants' arguments, set out in the record, were heard on at least three different days.Each motion was denied by the Land Court judge as matter of discretion.The present appeal, during which the order for decree has been stayed, is by the persons filing the denied motions.

The judge, in her discretion, could deny the motions if the appellants did not show that the lateness of their answers was due to "excusable neglect."SeeMass.R.Civ.P. 6(b)(2), 365 Mass. 747(1974);Old Colony Bank & Trust Co. v. Tacey Transp. Corp., 10 Mass.App. 825, Mass.App.Ct.Adv.Sh. (1980) 1329, 406 N.E.2d 434, and authorities there cited;Smith & Zobel, Rules Practice, § 6.4(1974& Supp.1981).See also the discretionary powers granted to the Land Court by G.L. c. 185, § 41.In the motions, there was only slight effort to establish facts, as to events after the registration petition was filed, tending to excuse the failure to file timely answers.See4 Wright & Miller, Federal Practice and Procedure, § 1165(1969& Supp.1982).Instead, the appellants relied largely upon alleged defects in the older tax title proceedings.We sustain the Land Court judge's conclusion that, in the circumstances, the delay in filing answers was not excusable, taking into account pertinent considerations.See, e.g., Berube v. McKesson Wine & Spirits Co., 7 Mass.App. 426, 430-435, 388 N.E.2d 309(1979), stating (at 430) that delinquent persons must establish that their claim "has merit."The judge could conclude that each appellant was guilty of such serious laches in testing long completed tax title proceedings as to preclude consideration of his or her claims.

The town officials in 1980 reasonably could suppose that the town owned by tax title part of the land which it sought to register.It had changed position (at least to the extent of expenses of registration) in attempting to make available, for sale to a developer of a shopping center, tax title land acquired many years earlier when of slight value.The shopping center project had received much local publicity.The potential increase in land value unquestionably led to the appellants' sudden interest in the land.

The alleged defects in the 1963 foreclosure were not asserted by the Foleys or their predecessor for about nineteen years.The judge was not required to place much weight on vague statements in affidavits that two Foleys went to the Lancaster town hall in the early 1950's to offer to pay the taxes on land in Lancaster "but were refused ... the opportunity to do so by an unknown official agent ... of the town."These efforts did not lead to other action before the tax title was foreclosed in 1963.No further effort after the early 1950's to pay taxes (known by the affiant Foleys to have been overdue) has been shown.The judge could reasonably regard the delay as laches prejudicial to the town because of the increased difficulties of proof after such a long period.SeeHebda v. O'Brien, 6 Mass.App. 661, 664, 382 N.E.2d 1113(1978), and cases cited.The period, indeed, approached that required for acquisition of title by adverse possession (seeG.L. c. 260, § 21) although the record does not show actual occupation and use of the land by the town.The judge also reasonably could treat the Foleys' claims as barred by the expiration of one year after the judicial 1963 foreclosure.G.L. c. 60, § 69A(and see§§ 64 & 69).SeePark, Real Estate Law, §§ 789-792, especially at 229-230(1981& Supp.1982).See also Nichols, Taxation in Massachusetts, 415-425 (3d ed. 1938andCohen & PikeSupp.1962).

The town's taking of the two parcels of land dealt with in the 1945 proceedings (in 1939, assessed for an aggregate of $300 on which a tax of $11.28 was due) was not the subject of any action by any of the Wells group for almost thirty-seven years.The record shows no effort during that period to pay taxes on that land.The Wells group has initiated (cf.G.L. c. 60, § 68) no definitive steps (other...