MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2016 ME 38
Docket:   Fra-14-469
Argued:   November 3, 2015
Decided:  March 8, 2016

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
                HUMPHREY, JJ.



                                    TOWN OF CARTHAGE

                                                   v.

                           FRIENDS OF MAINE’S MOUNTAINS

SAUFLEY, C.J.

         [¶1] This appeal arises from a complaint filed by the Town of Carthage in

2010 seeking to quiet title to two 160-acre parcels of undeveloped land. The Town

based its claim of ownership of the land on its uninterrupted possession of the land

for over a hundred years. Friends of Maine’s Mountains (FOMM) filed an answer

and counterclaim, claiming to have recently acquired an interest in the parcels

through a descendent of the parcels’ last known owner.

         [¶2]     After hearing arguments, the Superior Court (Franklin County,

Murphy, J.) granted a summary judgment for the Town and entered a declaratory

judgment in favor of the Town. FOMM appeals,1 arguing that the Superior Court

   1
       The Town of Carthage cross-appeals from the court’s denial of summary judgment on other
grounds, including laches, Friends of Maine’s Mountains’s standing, and adverse possession. Because we
affirm the court’s grant of summary judgment pursuant to the municipal delinquent tax title statute, we do
not reach the Town’s alternative arguments.
2

erred in determining that the undisputed facts demonstrated that the Town obtained

title to the two parcels of property through a tax sale that took place over 110 years

ago in 1905.2 We affirm the judgment.

                                      I. BACKGROUND

        [¶3] Viewed “in the light most favorable to the party against whom the

summary judgment has been granted,” the following facts are drawn from the

statements of material facts and are undisputed unless expressly stated otherwise.

Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484 (quotation marks

omitted).

        [¶4] The Town of Carthage is a municipality that was incorporated in 1826,

located in Franklin County. Within the Town are two 160-acre parcels of land,

identified as Lot 8 in Range 4 and Lot 8 in Range 5. The ownership of these

parcels of land forms the basis of the dispute before us.

        [¶5] Available documentation of ownership of the parcels begins with the

Town’s 1826 Tax Valuation and Commitment Book listing Benjamin Weld as the

1824 “non-resident owner” of Lots 8 in Ranges 4 and 5. In a deed recorded in the

Cumberland County Registry of Deeds and dated December 19, 1843, land owned

by Benjamin Weld, deceased, was transferred from Caroline Weld, as

    2
     We are not persuaded by FOMM’s arguments that the court erred or abused its discretion in entering
a default and default judgment against FOMM’s predecessors in title or in denying its motion to
reconsider the summary judgment.
                                                                                   3

administratrix, to Joseph McKeen, Esq.          On December 21, 1843, McKeen

transferred the property back to Caroline Weld. No records have been found in the

Franklin County, Oxford County, or Cumberland County Registries of Deeds

showing a transfer of the lots after the transfer from McKeen to Caroline Weld in

1843.

        [¶6] Approximately sixty years after that transfer, in 1902, 1903, and 1904,

the tax commitment books for the Town listed the owners of Lots 8 in Ranges 4

and 5 as “owners unknown.” In 1902, the Town valued Lot 8 in Range 4 at $75

and Lot 8 in Range 5 at $50, and listed each lot as containing 160 acres. In 1903

and 1904, the Town valued each lot at $75.

        [¶7] In 1903, the Town published a notice that the two lots would be sold

for unpaid taxes on the first Monday in December at 9:00 a.m. at the old

schoolhouse. The 1903 notice was published in the October 21, October 28, and

November 4, 1903, editions of the Farmington Chronicle. The 1903 notice stated

that the owners of the two lots were “unknown.” It also specified that the lots were

Lot 8 in Range 4 and Lot 8 in Range 5, that the lots were valued at $75 and $50,

respectively, and that each lot contained 160 acres.

        [¶8] Also in 1903, the Carthage tax collector filed a Collector’s Certificate

with the town regarding the purchase of Lots 8 in Ranges 4 and 5 “[f]or the
4

inhabitants of Carthage” for $7.62. No deeds appear to have been recorded at the

Franklin County Registry of Deeds.

         [¶9] In 1905, the Town again placed a notice in the Farmington Chronicle

for three consecutive weeks—October 18, October 25, and November 1, 1905—

that Lots 8 in Ranges 4 and 5 would be sold for unpaid taxes. The parties agree

that the tax collector’s “Collectors Return to Town Clerk of Tax Sales” lists the

sale of the two parcels to the Town of Carthage and states an amount of taxes,

interest, and charges of $10.74 ($5.37 per lot). FOMM, however, argues that there

is no indication that the Town actually paid anything for either lot, whereas the

Town asserts that the document itself is evidence that the Town paid $10.74 for

both lots. No deed appears to have been recorded by the Town in the registry of

deeds.

         [¶10] From 1905 to 1938, the Town consistently listed the lots in the

“Resources” section of the Annual Town Reports, meaning that it was property

belonging to the Town and not included as taxable property in the valuation to the

State. Eventually, the Town stopped listing “Resources” in the Annual Town

Reports but continued a handwritten Tax Valuation and Commitment Book until

1993, when records were digitized. There were a few years in which the Town did

not identify Lot 8 in Range 4 as Town property in its Tax Valuation and
                                                                                    5

Commitment Book. The Town map of 1907 shows Lots 8 in Ranges 4 and 5 as

Town lots.

      [¶11] From 1980 to the present day, the lots have been included in the tax

evaluation reports sent to the State as tax-exempt Town-owned properties. In

1989, the lots were again identified as belonging to the Town on a map. The Town

has also included the lots in its Inventory and Valuation of the Polls and Estates for

the Town of Carthage. For over 100 years, the Town has listed and claimed the

lots as Town-owned tax-exempt property in its valuation reports to the State.

      [¶12] In March 2010, the Town filed a complaint to clear title to the two

160-acre parcels of land and for a declaratory judgment against “[a]ll those persons

unknown claiming [title to the land] by, through and under Caroline Weld, last

known of Brunswick, County of Cumberland, State of Maine.” The Town asserted

four counts in its amended complaint, including a claim for equitable relief

pursuant to the municipal delinquent tax title statute, 36 M.R.S. § 946 (2015).

      [¶13]   FOMM filed an answer and counterclaim for quiet title and a

declaratory judgment, asserting that it obtained an interest in the land by a

quitclaim release deed executed by William A. Potter, an alleged descendant of

Caroline Weld—the last known owner of the property before the tax sale.

      [¶14]   After the court denied the Town’s motion to dismiss FOMM’s

counterclaim for lack of standing, determining that the issue of standing was
6

inextricably intertwined with the merits, the Town moved for a summary

judgment. On May 5, 2014, the court granted a summary judgment in favor of the

Town pursuant to the municipal delinquent tax title statute. The court entered a

default and default judgment against Warwick Potter III, William A. Potter, and all

other possible claimants, excluding FOMM, and a declaratory judgment in favor of

the Town, declaring that it owned the two 160-acre lots in fee simple absolute.

This appeal followed.

                                II. DISCUSSION

A.    Standard of Review

      [¶15] “We review the grant of a motion for summary judgment de novo,

and consider both the evidence and any reasonable inferences that the evidence

produces in the light most favorable to the party against whom the summary

judgment has been granted in order to determine if there is a genuine issue of

material fact.” Budge, 2012 ME 122, ¶ 12, 55 A.3d 484 (quotation marks omitted).

“A fact is material if it has the potential to affect the outcome of the suit, and a

genuine issue of material fact exists when a fact-finder must choose between

competing versions of the truth, even if one party’s version appears more credible

or persuasive.” Angell v. Hallee, 2014 ME 72, ¶ 17, 92 A.3d 1154 (quotation

marks omitted). When the material facts are not in dispute, we review de novo the

trial court’s interpretation and application of the relevant statutes and legal
                                                                                                       7

concepts. See Blue Yonder, LLC v. State Tax Assessor, 2011 ME 49, ¶ 7, 17 A.3d

667.3

B.       Relevant Statutory Provisions

         [¶16] Title 36 M.R.S. § 946 provides,

         A municipality which has become the purchaser at a sale of real estate
         for nonpayment of taxes or which as to any real estate has pursued the
         alternative method for the enforcement of liens for taxes provided in
         sections 942 and 943, whether in possession of such real estate or not,
         after the period of redemption from such sale or lien has expired, may
         maintain an action for equitable relief against any and all persons who
         claim or may claim some right, title or interest in the premises adverse
         to the estate of such municipality.

FOMM asserts that irregularities in the Town’s actions in 1905 precluded the

transfer of title to the Town. It is therefore necessary to review the relevant

statutory authority in effect at the time of the sale.

         [¶17] The relevant provisions in effect in 1905 provided the following:

“There shall be a lien to secure the payment of all taxes legally assessed on real

estate.” R.S. ch. 9, § 3 (1904). Taxes “shall be assessed . . . to the owner or person

in possession thereof,” or, in the case of a deceased owner, “may be assessed” to

the owner’s heirs or devisees. R.S. ch. 9, §§ 8, 21 (1904). In addition, if property

changed ownership and no notice of the change in ownership was given to the


     3
       Although FOMM originally challenged the court’s judgment on the basis of its claim that it was
unprepared for argument on the validity of the Town’s title, it ultimately withdrew that challenge in its
brief.
8

municipality, property assessments made to the person to whom the property was

last assessed were valid. R.S. ch. 9, § 24 (1904). The statute did not specify the

procedures to be followed when a municipality was unable to discern the owner of

real estate located in the municipality.

      [¶18] Where taxes remained unpaid, the collector was directed to “sell at

public auction so much of such real estate or interest as is necessary for the

payment of said tax, interest, and all the charges.” R.S. ch. 10, § 73 (1904). After

property had been sold, a redemption procedure was available to protect

landowners. See R.S. ch. 10, § 77 (1904) (stating when real estate was sold for

taxes the deed would not be delivered to the grantee until “one year from the day

of sale in the case of lands of non-resident owners, if the owner does not within

such time redeem his estate from the sale”); R.S. ch. 10, § 79 (1904) (stating

“[a]fter the deed of land of a non-resident owner is so delivered, the owner has six

months within which to redeem his estate, by paying to the purchaser the sum by

him so paid”).

      [¶19] The statute directed the collector, within thirty days after a sale, to

“make a return, with a particular statement of his doings in making such sale, to the

clerk of his town; who shall record it in the town records.” R.S. ch. 10, § 80

(1904). It also provided,
                                                                                    9

      In the trial of any action at law or in equity, involving the validity of
      any sale of real estate for non-payment of taxes, it shall be sufficient
      for the party claiming under it, in the first instance, to produce in
      evidence the collector’s or treasurer’s deed, duly executed and
      recorded, which shall be prima facie evidence of his title, and if the
      other party claims and offers evidence to show that such sale was
      invalid and ineffectual to convey the title, the party claiming under it
      shall have judgment in his favor so far as relates to said tax title, if he
      then produces the assessment, signed by the assessors, and their
      warrant to the collector, and proves that such collector or treasurer
      complied with the requirements of law in selling such real estate; and
      in all such actions involving the validity of sales made after April
      twenty-six, eighteen hundred and ninety-five, the collector’s return to
      the town clerk, the town clerk’s record, or if lost or destroyed, said
      clerk’s attested copy of such record, as provided in section eighty,
      shall be prima facie evidence of all facts therein set forth.

R.S. ch. 10, § 87 (1904) (emphasis added).

C.    Analysis

      [¶20] FOMM contends that the Superior Court erred in determining that the

undisputed facts demonstrate that the Town obtained title through the tax sale in

1905. FOMM makes three primary arguments to support this contention: (1) the

Superior Court misinterpreted section 87 in determining that the tax collector’s

return constitutes prima facie evidence that the Town purchased the parcels at the

1905 tax sale without the production of additional evidence, including a deed;

(2) the tax collector exceeded his authority when he sold all 320 acres of the

property, valued at $150, in fee simple absolute for $10.74; and (3) the Town’s

1904 assessment of the property to “owners unknown” violated the statute.
10

       [¶21] We first address FOMM’s contention that the statute requires the

Town to produce a deed, an assessment signed by the assessors, and the warrant to

the tax collector, and to prove that the collector complied with all requirements in

executing the sale, before the collector’s return constitutes prima facie evidence of

the sale and its validity.

       [¶22]   The statute provided two methods of demonstrating prima facie

evidence of title. See R.S. ch. 10, § 87. First, the production of a deed was prima

facie evidence of title; if the prima facie evidence was rebutted, title could be

proved by production of the assessment, the warrant, and proof of the collector’s

compliance. Id. Second, for sales effected after April 1895, the collector’s return

was prima facie evidence of “all facts therein set forth.” Id. Therefore, although

the statute’s first clause referred to the production of the documents that FOMM

argues are required to prove title, the relevant portion treating the collector’s report

as prima facie evidence was a separate clause that was not dependent on the

production of any documents or additional proof. See id. Thus, the collector’s

return offered by the Town constituted prima facie evidence that the Town of

Carthage purchased both parcels at the 1905 tax sale for the amount due of $10.74.

       [¶23] Once the Town produced prima facie evidence that it purchased the

parcels at the 1905 tax sale, the burden was on FOMM to rebut that showing. See

Gray v. Hutchins, 150 Me. 96, 104, 104 A.2d 423 (1954). Because FOMM did not
                                                                                   11

assert or prove any facts contrary to those asserted in the collector’s return, the

prima facie evidence becomes undisputed conclusive evidence of the sale. See

Town of Blue Hill v. Leighton, 2011 ME 103, ¶ 12 n.5, 30 A.3d 848.

      [¶24] We next address FOMM’s argument that the tax collector exceeded

his authority. Here, the collector’s return also constituted prima facie evidence that

the sale complied with the statutory procedures for the sale and that the tax

collector did not exceed his authority in selling both parcels for a total of $10.74.

See R.S. ch. 10, §§ 73, 87. Aside from arguing about the value of the property

compared to its sale price, FOMM has presented no evidence contrary to the

collector’s return that would rebut the showing that the collector did not exceed his

authority.    Therefore, the prima facie evidence again becomes undisputed

conclusive evidence that the collector did not exceed his authority. See Town of

Blue Hill, 2011 ME 103, ¶ 12 n.5, 30 A.3d 848.

      [¶25]    As to FOMM’s last argument concerning the validity of the

assessment, the 1904 assessment of the property by the Town to “owner unknown”

was not a positive violation of law and did not invalidate the 1905 sale. Although

the statute provided for several ways to assess property, it provided no guidance

when the Town was unable to discern the property owner or possessor, and no

action had been taken concerning the particular parcels in over sixty-one years.
12

        [¶26] Ultimately, to the extent that any infirmity did exist regarding the

1905 tax sale, any individuals claiming title to the land forfeited any challenge to

the sale by their failure to act. See 36 M.R.S.A. § 946-A (Supp. 1993) (“A person

may not commence an action against the validity of a governmental taking of real

estate for nonpayment of property taxes upon the expiration of a 15-year period

immediately following the expiration of the period of redemption.”), repealed and

replaced by P.L. 2014, ch. 521, §§ D-1, D-2 (codified at 36 M.R.S. § 946-B(3)

(2015) (“For a tax lien recorded on or before October 13, 1993, a person must

commence an action against its validity no later than 15 years after the expiration

of the period of redemption or no later than July 1, 1997, whichever occurs

later.”)).

        The entry is:

                           Judgment affirmed.



On the briefs and at oral argument:

        Sarah A. McDaniel, Esq., Douglas McDaniel Campo & Schools
        LLC, PA, Westbrook, for appellant Friends of Maine’s
        Mountains

        Jennifer F. Kreckel, Esq., Kreckel Law, P.A., Rumford, for
        appellee Tow of Carthage


Franklin County Superior Court docket number RE-2010-12
FOR CLERK REFERENCE ONLY
