Vee Jay Realty Trust Co. v. DiCroce

• Citation: 277 N.E.2d 690,360 Mass. 751
• Parties: VEE JAY REALTY TRUST CO. v. Robert N. DICROCE et al.
• Decision Date: 11 January 1972
• Court: United States State Supreme Judicial Court of Massachusetts

Page 690

277 N.E.2d 690

360 Mass. 751

VEE JAY REALTY TRUST CO. v. Robert N. DICROCE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1971.

Decided Jan. 11, 1972.

Victor G. Fields, Brockton, for plaintiff.

Augustus P. Vitali, Dedham, for defendant DiCroce.

Before TAURO, C.J., and CUTTER, REARDON, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

The plaintiff appeals from a final decree entered in the Land Court dismissing its bill in equity in which it soulght to have determined its ownership in a certain parcel of land located in the town of Whitman. The case is before us on a stipulation of facts and a partial report of the evidence. The judge made detailed and voluntary findings of fact.

The land in question was owned by one Alexander AcDonald and was mortgaged by McDonald to one Max Garelick on September 9, 1958. On July 29, 1960, the locus was taken by the town for taxes unpaid in the year 1959. The taxes had been assessed to McDonald and demand for payment was made upon him. No personal notice of the proposed taking was given to the mortgagee Garelick. Subsequent to the taking and after the issuance and recording of an affidavit of low value under G.L. c 60, § 79, the locus was sold on December 19, 1962, to one Rebecca Dame who has since conveyed the locus to DiCroce (the defendant). There was evidence that prior to the low value sale, notice was given to McDonald and notices of sale were posted in the town hall and the local post office. The plaintiff bases its claim of title to the locus upon a foreclosure deed dated November 9, 1962, and executed after foreclosure proceedings by Garelick against McDonald. After the sale to Dame, the plaintiff recovered $4,300.41 in an action against the town under G.L. c. 60, § 79, which provides for the recovery of surplus funds resulting from the sale of low value land.

The plaintiff alleges that the taking of July 29, 1960, by the town 'was improper and a nullity' because it was made 'without proper notice to nor the naming of all owners known to the Collector'; that Garelick, as mortgagee of the property, was entitled to notice of the taking; that the deed to Dame was defective in that it did not contain an adequate description of the locus; and that the low value sale to Dame was improper because the land in question was sold 'as a unit' together with two other parcels of land separately assessed to third parties. The judge ruled that the mortgagee was not entitled to notice of the taking, and that the low value sale and deed to Dame complied with the requirements of G.L. c. 60, § 79. There was no error.

1. The first issue raised by this appeal is whether the plaintiff's predecessor in title, as mortgagee, was entitled to notice of the taking. General Laws c. 60, § 53, as appearing in St.1933, c. 164, § 3, governs the procedure to be followed in taking land for nonpayment of taxes. It provides that '(i)f a tax on land is not paid within fourteen days after demand therefor and remains unpaid at the date of taking, the collector may take such land for the town, first giving fourteen days' notice of his intention to exercise such power of taking, which notice may be served in the manner required by law for the service of subpoenas on witnesses in civil cases or may be published, and shall conform to the requirements of section forty. He shall also, fourteen days before the taking, post a notice so conforming in two or more convenient and public places.' Section 40 provides, in part, that '(s)uch notice shall contain . . . the names of all owners known to the collector.'

This court has consistently held that a mortgagee has legal title to the mortgaged real estate. Harlow Realty Co. v. Cotter, 284 Mass. 68, 70, 187 N.E. 118. However, we have also said that 'as to all the world except the mortgagee, a mortgagor is the owner of the mortgaged lands, at least till the mortgagee has entered for possession.' Dolliver v. St. Joseph Fire & Marine Ins. Co., 128 Mass. 315, 316. Delano v. Smith, 206 Mass. 365, 369, 92 N.E. 500. A review of our prior decisions, and especially an examination of the general statutory scheme for the assessment and collection of real property taxes, leads us to the conclusion that a mortgagee not in possession is not entitled, as a matter of right, to notice of a taking under G.L. c. 60, § 53. The general rule as stated in G.L. c. 59, § 11, as amended through St.1958, c. 549, § 2, is that '(e)xcept as provided in the three following sections, mortgagors of real estate shall for the purpose of taxation be deemed the owners until the mortgagee takes possession, after which the mortgagee shall be deemed the owner.' See Farnum v. Buffum, 4 Cush. 260, 265.

The sections to which the exception applies deal with the assessment of the mortgagee's interest in the property and are not applicable to the present case. We do observe however, that one of those sections places the burden on the mortgagee to file a statement indicating the extent of his interest and that '(w)henever . . . such statement is not brough in, no tax on . . . (mortgaged) real estate . . . shall be invalidated for the reason that a mortgagee's interest therein has not been assessed to him.' G.L. c. 59, § 13. See Worcester v. Boston, 179 Mass. 41, 49, 60 N.E. 410. Similarly, our reading of the statutes dealing with the collection of taxes convinces us...