Town of Sharon v. Kafka

• Decision Date: 14 September 1984
• Citation: Town of Sharon v. Kafka, 468 N.E.2d 656, 18 Mass.App.Ct. 541 (Mass. App. 1984)
• Court: Appeals Court of Massachusetts
• Parties: TOWN OF SHARON v. Bertha KAFKA. (and a companion case).

Page 656

468 N.E.2d 656

18 Mass.App.Ct. 541

TOWN OF SHARON v.Bertha KAFKA. (and a companion case).

Appeals Court of Massachusetts Suffolk.

Argued May 9, 1984.

Decided Sept. 14, 1984.

James E. Coppola, Lynn, for plaintiff.

Burton L. Schafer, Natick, for defendant, submitted a brief.

Before GREANEY, C.J., and CUTTER and DREBEN, JJ.

DREBEN, Justice.

General Laws c. 60, § 69A, provides that "[n]o petition to vacate a decree of foreclosure entered under section sixty-nine ... shall be commenced except within one year after the final entry of the decree."¹Two decrees foreclosing and barring all rights of redemption in certain land taken for nonpayment of taxes by the town of Sharon entered on October 19, 1976.Those decrees were vacated without findings or opinion by a judge of the Land Court on petitions to vacate filed on March 5, 1981.The town appeals from the orders vacating the decrees.We vacate those orders and remand the cases for further proceedings.

The petitions to vacate alleged the following reasons for vacating the decrees: "[T]hat prior to and subsequent to the taking for taxes Respondent was an elderly widow and suffering from severe physical disabilities and had several prolonged hospitalizations and was subjected to brain surgery and was incapable of handling her personal affairs; and died in 1980...."Other allegations are set forth in the margin.²

This record does not show a basis for the judge's vacating of the decrees.Even before the passage of G.L. c. 60, § 69A, in 1945, the Supreme Judicial Court had stated that a petition to vacate a prior decree foreclosing the right of redemption under a tax title is "extraordinary in nature and ought to be granted only after careful consideration and in instances where ... [it is] required to accomplish justice."Lynch v. Boston, 313 Mass. 478, 480, 48 N.E.2d 26(1943).

By enacting St.1945, c. 226(inserting G.L. c. 60, § 69A), which is entitled "An Act relative to the conclusiveness of decrees foreclosing tax titles,"the Legislature obviously intended to limit the time during which a decree could be challenged ³ and the limitation period was "designed to limit the right as well as the remedy."Whitehouse v. Sherborn, 11 Mass.App. 668, 673, 419 N.E.2d 293(1981).Wine v. Commonwealth, 301 Mass. 451, 455-456, 17 N.E.2d 545(1938), and cases cited.

What we said in Whitehouse, supra11 Mass.App. at 671, 419 N.E.2d 293 with regard to eminent domain statutes applies with equal force to takings for nonpayment of taxes."Underlying the statutes are important public policy considerations, the most obvious of which is the need for an efficient and final determination of any dispute regarding a public landtaking, so that title to the land taken can be settled."See generallyPark, Real Estate Law§ 792(1981& Supp.1982).SeeEldredge v. Selectmen of Brewster, 18 Mass.App. 502, 506-507(1984).The Legislature appears to have determined that the public interest in marketable titles for tax takings "outweighs considerations of individual hardship" after one year.SeeHardisty v. Kay, 268 Md. 202, 208, 299 A.2d 771(1973).

Incapacity or mental illness might serve as a ground for a judge's exercise of discretion to vacate a judgment where a petition is brought within the one-year limit.SeeHerlihy v. Kane, 310 Mass. 457, 459, 38 N.E.2d 260(1941).Under the statutory language we think the judge here was given no power to exercise such discretion after that time.SeeLancaster v. Foley, 15 Mass.App. 967, 969, 446 N.E.2d 1080(1983).

There may be, however, circumstances which justify vacating the decrees and, in the absence of findings, which we think are necessary in this case, we do not know the reason for the action taken by this experienced trial judge.Accordingly, we reverse and remand for findings.The judge may hold such hearings as he deems appropriate and may in his discretion permit the petitioners to file amended petitions if they can, consistently with S.J.C. Rule 3:07, DR7-102, 382 Mass. 785(1981), show that they come within the rule of Covey v. Somers, 351 U.S. 141, 146-147, 76 S.Ct. 724, 727, 100 L.Ed. 1021(1956), or within the rule of other decisions involving the denial of due process of law in analogous circumstances.In the Covey case a factual showing that the petitioner was "incompetent" and "without the protection of a guardian," and that "the town authorities knew her to be an unprotected incompetent" when notice was sent to her permitted the vacating of a decree on due process grounds.CompareStubbs v. Cummings, 336 So.2d 412, 415-416(Fla.Dist.Ct.App.1976), withIn re Consolidated Return of Tax Claim Bureau of the County of Delaware, 75 Pa.Commn. 108, 461 A.2d 1329(1983)(knowledge by town apparently not required).SeeGoldmyrtle Realty Corp. v. Woellner, 36 A.D.2d 968, 969, 321 N.Y.S.2d 654(N.Y.1971).Cf.Commonwealth v. Olivo, 369 Mass. 62, 69, 337 N.E.2d 904(1975).If there was a denial of due process, the stricture of § 69A would not apply.SeeChapin v. Aylward, 204 Kan. 448, 455, 464 P.2d 177(1970), holding that a provision somewhat similar to G.L. c. 60, § 69A, "must give way ... where the facts clearly establish a denial of due process of law."

The orders vacating the decrees are vacated and the cases remanded for further proceedings consistent with this...