Allen v. Allen
86 Mass. App. Ct. 295
| Mass. App. Ct. | 2014Background
- Siblings Deborah and Harold dispute title to a Lexington house formerly owned by their parents; Harold produced a July 23, 2001 deed from their mother Ethel conveying the house to Harold and Ethel as joint tenants, recorded August 10, 2001.
- On November 30, 2001, Ethel executed and later recorded (Feb 8, 2002) a deed conveying the property to the Allen Realty Trust, of which Deborah was a cotrustee (Ethel reserved a life estate).
- Deborah sued after Ethel’s death (Dec. 20, 2009), alleging the July deed was forged and/or invalid; trial in Land Court was tried without a jury.
- The judge found Ethel’s signature on the July deed authentic but concluded the deed was not acknowledged before the notary (Attorney Maloy) as the certificate claimed; judge found Ethel instead signed in front of Harold and Harold then brought it to Maloy for notarization.
- Because the acknowledgment was defective and the deed thus was not properly recordable, the recorded July deed did not provide constructive notice to Deborah; judgment awarded title consistent with that conclusion.
Issues
| Issue | Plaintiff's Argument (Deborah) | Defendant's Argument (Harold) | Held |
|---|---|---|---|
| 1) Effect of latent defect in certificate of acknowledgment on constructive notice | July deed was not properly acknowledged/recordable so it cannot give constructive notice; recorded defective certificate can be contradicted | The facially correct recorded certificate should be sufficient to give Harold priority | Court held a latent (actual) failure to acknowledge prevents the deed from being recordable and it cannot give constructive notice (McOuatt/G raves principles apply) |
| 2) Whether Deborah qualifies as an exception to recording requirement (heir/devisee) | Recording statute protects subsequent grantees like Deborah; her status as heir/devisee of other property does not negate protection | Deborah was Ethel’s heir/devisee, so recording was unnecessary to be effective against her | Court held Deborah’s heir/devisee status did not exempt her from protections of the recording statute; recording required to provide constructive notice to third parties |
| 3) Applicability of 10-year safe-harbor (G. L. c. 184, § 24) | Safe harbor does not apply because a proceeding challenging the defect was commenced within ten years and relief was granted in due course | Even though challenged within ten years, the suit challenged forgery not the acknowledgment; alternatively, safe harbor should cure the defective acknowledgment now | Court held safe harbor did not apply: a proceeding on account of the defect was timely commenced and relief was granted in due course, so defect not cured by §24 |
| 4) Scope of pleadings, evidentiary sufficiency, and denial of counterclaim amendment | Issues around acknowledgment and forgery were tried by implied consent; judge’s factual findings on signing/acknowledgment were supported by testimony and credibility determinations | Judge exceeded pleadings; findings were clearly erroneous; denial to amend counterclaim was abuse | Court held the acknowledgment issue was tried by implied consent, the judge’s factual findings were not clearly erroneous, and denial of late amendment was not an abuse of discretion |
Key Cases Cited
- McOuatt v. McOuatt, 320 Mass. 410 (holding a facially correct certificate of acknowledgment may be contradicted and a lack of actual acknowledgment defeats recordability)
- Graves v. Graves, 6 Gray 391 (recording without required acknowledgment is improvident and does not provide constructive notice)
- Dole v. Thurlow, 12 Metc. 157 (acknowledgment or proof by subscribing witness required as prerequisite to recording)
- Howson v. Crombie St. Congregational Church, 412 Mass. 526 (discussing ten-year curing provision for defective acknowledgments)
- Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (permitting reliance on circumstantial evidence and credibility determinations in upholding trial findings)