Town of Norwood v. Norwood Civic Ass'n

• Decision Date: 10 March 1960
• Citation: 165 N.E.2d 124,340 Mass. 518
• Parties: TOWN OF NORWOOD v. NORWOOD CIVIC ASSOCIATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 124

165 N.E.2d 124

340 Mass. 518

TOWN OF NORWOOD v. NORWOOD CIVIC ASSOCIATION.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 1, 1960.

Decided March 10, 1960.

Charles Higginson, Cohasset, for respondent.

Walter J. Gotovich, Town Counsel, Norwood, for petitioner.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is an appeal by the Norwood Civic Association (the association) from a decision of the Land Court upon the town's petition, filed in 1941, to foreclose a tax title to a parcel of land (the locus) with its buildings on Brook Street, Norwood. This tax title was taken by the town in 1937 and covered a parcel of twelve acres plus 22,040 square feet. In 1957, the association filed an amended answer asserting (in addition to other circumstances no longer in issue) that the tax was void because the real estate of the association 'was and is exempt from taxation' under G.L. c. 59, § 5, Third.

The trial judge found the following facts. The locus was conveyed to the association on March 30, 1934, by Norwood Estates Inc. of which George F. Willett was president. The function of Norwood Estates Inc. 'was to take over properties * * * essential to and used in connection with Willett property.' The locus was part of a twenty-five acre tract of pond beach property, partly in Walpole, partly in Westwood, and partly in Norwood. Real estate taxes were paid on the Westwood land. The locus is adjacent to vacant land of Westover Estates Inc., a corporation controlled by Willett. Willett also had some connection with other organizations, Westover Corporation, Norwood Housing Trust, and Housing Security, used by him in the past in connection with land or housing projects in which he was interested.

The association was a corporation organized in 1914, under a predecessor of G.L. c. 180, to promote 'the welfare of the town of Norwood * * * and to improve the morality, industry, thrift, health, cleanliness, education and good citizenship of its inhabitants.' The association held various parcels of taxable land (although at what period is not clear from the decision) and for some years operated a civic center in Norwood. The civic center burned in 1930 and the association received from fire insurance and the sale of certain land $183,000 in the aggregate, some of which 'went to pay obligations of the Housing Security or Westover Corporation, which were controlled by * * * Willett.'

In 1934, when the association took title to the locus, Norwood Estates Inc. 'was in tax difficulties.' Willett testified 'that the only reason * * * [the] [a]ssociation would have taken title * * * was as a part of the plan to relieve Norwood Estates Inc. of its tax burden and its tax difficulties.'

The locus was assessed to the association in 1934 and in 1935 and in those years 'it was carried on the tax-exempt list.' It was 'first taxed to the * * * [a]ssociation in 1936.'

On September 30, 1936, the association filed an application under G.L. c. 59, § 59, for recognition in that year of the statutory exemption under G.L. c. 59, § 5, Third. See Board of Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 498, 4 N.E.2d 342. In this application the answer 'No' was given to the question 'Does the corporation occupy the real estate upon which exemption is claimed?' The assessors refused to abate the tax and the association appealed to the Appellate Tax Board. On December 14, 1938, the appeal petition was withdrawn. The association has not paid the real estate taxes assessed for 1936 or for any subsequent year and these taxes have not been abated. The record reveals no applications under c. 59, § 59, after 1936 for abatement of taxes or for recognition of the statutory exemption.

The trial judge, without making findings, recited 'testimony that the Red Cross ran the bathhouse, the instructional and swimming programs and the beach during the year 1936 and other years' and that 'even though the Red Cross may have supervised the programs * * * and paid rental for the bathhouse, the * * * [a]ssociation exercised some control over the beach.' The judge found, but did not relate these findings to particular years, that there 'was no direct charge in the operation of the bathhouse erected on the property to those who used it, nor any charge for dressing or undressing in the batthouse. Children under fifteen * * * from Norwood were admitted to the pond premises free.' There were charges for children from elsewhere as well as for adults and for automobiles which entered the pond premises. Charges were made for refreshments. Financial records of the association for 1955 and 1956 showed expenditures for services of the beach manager, lifeguards, and refreshment stand attendants, and for maintenance, supplies, insurance, and 'other expenses whether connected with the operation of the beach or not.' There was a profit in 1955 of $3,099.06 and also a profit in 1956, but apparently a loss in 1957 and 1958. The association had assets in 1955 of $222,690.89 and in 1956 of $168,092.82. These 'assets consisted principally of vacant non-income producing land.' No financial records of the association for years other than 1955 and 1956 were in evidence.

The judge concluded 'upon all the evidence that * * * [the] real estate is not exempt from taxation.' In reaching this conclusion, he seems to have placed weight (a) upon the corporation's answer 'No' to the question on the 1936 application about its occupancy of the taxed land, (b) upon the domination of the association by Willett ('whose principal purpose was to * * * sell houses on some 2,000 acres * * * owned by a business corporation, Westover Estates Inc.') as 'one of several corporations controlled and dominated by' him; (c) upon the existence of evidence, not reported, 'that some of the income * * * of the * * * [a]ssociation was used * * * for * * * purposes other than that of the corporation itself'; and (d) upon Willett's testimony that the reason for the association's acquisition of title was 'to relieve Westover Estates Inc. of its tax burden and tax difficulties.'

The trial judge concluded that the tax title was valid and that the association may redeem upon the payment of $13,453.79, the aggregate amount of the tax title account (which did not include 1958 taxes) with interest to October 27, 1958, plus interest from that date and costs.

1. A motion was presented in this court to require the Land Court to transmit the transcript of evidence to us as part of the record. This proceeding was brought under G.L. c. 60, § 65, ¹ as amended by St.1938, c. 305. See also G.L. c. 60, §§ 66-69 (as amended respectively through St.1935, c. 224, §§ 1, 2; St.1935, c. 414, § 3; St.1945, c. 226, § 1). The Land Court has exclusive jurisdiction. G.L. c. 60, § 64; c. 185, § 1(b), as amended by St.1935, c. 318, § 3. The practice in such a proceeding is to conform to that in land registration. See G.L. c. 60, § 75 (as amended through St.1936, c. 189, § 1); City of Boston v. Lynch, 304 Mass. 272, 273-274, 23 N.E.2d 466, 468, holding (1) that in a petition under § 65 an appeal may be taken by a party aggrieved 'by any order decisive of the case founded upon matter of law apparent on the record' in accordance with G.L. c. 231, §§ 96, ² 142; ³ see G.L. c. 185, § 15; and (2) that '[s]uch an appeal raises only questions of law, but [that] the facts stated in the decision of the Land Court are generally deemed part of the record.' See Harrington v. Anderson, 316 Mass. 187, 192-193, 55 N.E.2d 30. City of Lowell v. Marden & Murphy, Inc., 321 Mass. 597, 602-603, 74 N.E.2d 666, appeal dismissed and certiorari denied 332 U.S. 850, 68 S.Ct. 354, 92 L.Ed. 420, left undecided the question whether, in a proceeding under § 65, the transcript of testimony is a part of the record on appeal. Foreclosure of a tax title, a security title, does resemble in some respects an equitable proceeding to foreclose a mortgage. See Lynn Institution for Savings v. Taff, 314 Mass. 380, 383, 50 N.E.2d 203. See also Wareham Sav. Bank v. Partridge, 317 Mass. 83, 84, 56 N.E.2d 867; Pomeroy, Equity Jurisprudence (5th ed.) §§ 240, 1227, 1413. Nevertheless, we find nothing to indicate that St.1915, c. 237, §§ 4-14, which gave to the Land Court jurisdiction of tax title foreclosures, was intended to grant to that court equitable jurisdiction. The legislative history indicates that no 'novel proceedings' were contemplated. ⁴ We think that the present appeal is governed by the usual procedure at law under c. 231, § 96 (see also c. 185, § 15), despite some provisions (§§ 5-7) in the 1915 statute which have the appearance of equitable proceedings. See G.L. c. 60, §§ 68-70, as amended; c. 185, § 25 (as amended by St.1931, c. 387, § 2). See also McCarthy v. Lane, 301 Mass. 125, 127, 16 N.E.2d 683; Humphrey v. Walker, 314 Mass. 552, 553, 50 N.E.2d 783; Marshall v. Francis, 327 Mass. 702, 703, 100 N.E.2d 840. Cf. as to matters within the Land Court's concurrent equity jurisdiction, Cowden v. Cutting, 339 Mass. ----, 158 N.E.2d 324.

2. It is not clear that the Land Court judge could properly pass upon whether the locus was exempt under G.L. c. 59, § 5, Third, ⁵ for the record does not establish that the locus was the only real estate in Norwood owned by the association in each of the years covered by the tax title account. If the association owned any taxable real estate in Norwood, then inclusion of this land (even if it was exempt under cl. Third) in the basis of the tax made the tax merely excessive. For relief against an excessive tax the remedy is by application for abatement under G.L. c. 59, § 59, as amended. See St. James' Educational Institute v. City of Salem, 153 Mass. 185, 186, 26 N.E. 636, 10 L.R.A. 573; Harrington v. Glidden, 179 Mass. 486, 491-494, 61 N.E. 54; Sears v. Inhabitants of Nahant, 221 Mass. 435, 436, 109 N.E. 373; Whitney v. Tax Com'rs, 234 Mass. 188, 191, 125...