GREGORY P. PLUNKETT & another [Note 1] vs. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BOSTON & another. [Note 2]

CUTTER, J. Adam M. Foti and Gregory P. Plunkett on October 30, 1968, joined in a limited partnership, Copley Associates (the partnership), of which Foti was the only general partner. Foti was charged with managing the partnership affairs. Plunkett was the only limited partner. Plunkett and Foti, initially at least, each had an equal half beneficial interest in the partnership assets. The partnership by its terms was to expire on December 31, 1971. [Note 3] The original contribution of each partner was a half beneficial interest in property at 573-575 Boylston Street (the locus) in Boston, until then wholly owned by Foti. On October 30, 1968, Plunkett paid Foti (for the one-half share in the locus to be contributed by Plunkett to the partnership) $15,000 in cash and Plunkett's note for $35,000. On that day also, Foti conveyed the locus to Mr. Robert A. Trevisani as trustee of a so-called "nominee" trust, the Copley Realty Trust (the trust), under a declaration of trust. See Birnbaum and Monahan, The Nominee Trust in Massachusetts Real Estate Practice, 60 Mass.L.Q. 364, 368 et seq. (1976). This deed and the declaration of trust were recorded in the registry of deeds. The declaration of trust did not disclose the names of the beneficiaries but recited that the property was held in trust for the benefit of persons who had filed with the trustee a schedule (never recorded) of beneficiaries in the proportions therein stated. The trust declaration expressly permitted transfer of the beneficial interests in the trust assets to a limited

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partnership [Note 4] (also not identified in the trust declaration). Relevant provisions of the trust are set out in Appendix 1 to this opinion.

The partnership agreement contained broad powers and purposes, but apparently was formed primarily to deal with the locus. A certificate of the formation of the limited partnership was filed in the office of the Secretary of the Commonwealth on November 20, 1968, but was not recorded in the registry of deeds. On October 3, 1969, a certificate of an amendment to the partnership agreement was filed in the office of the Secretary of the Commonwealth, [Note 5] but was not recorded in the registry of deeds.

The foregoing background facts and the subsequent events are stated as set forth in the careful and complete findings of the trial judge who heard on the merits the litigation later mentioned. The evidence is largely documentary, and it does not appear to be contended that the trial judge's findings (as opposed to his interpretations of documents and his legal conclusions) are in dispute.

A. On August 25, 1970, Plunkett, because concerned about the partnership's affairs, sought in the Superior Court an accounting and winding up of the partnership. On September 8, 1970, Mr. Trevisani resigned as trustee of the trust and his resignation was recorded in the registry of deeds. From Mr. Trevisani's

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resignation until August, 1972, apparently no designation of a new trustee was attempted.

B. On May 8, 1972, the Plunketts and Foti signed a settlement agreement which was annexed to and "made a part of" a final decree of the same date, dismissing the equity proceedings "with the consent of all parties." The agreement recited that it was the intention of the parties to terminate the partnership agreement and for the Plunketts [Note 6] to "divest themselves . . . of any interest of any . . . nature in" the partnership, the trust, or the locus "except as specifically stated" in the agreement. Article 9 of the agreement provided that the Plunketts "shall assign . . . [to Foti] all of their interest, fully and completely in" the partnership, the trust, and the locus, "upon the execution of this [a]greement and shall resign in writing whatever positions they . . . have in the same" (emphasis supplied). Other pertinent provisions of the agreement are mentioned in Appendix 2 to this opinion.

C. Plunkett and his then attorney met with Foti on May 26, 1972, for a "closing." Plunkett, in accordance with the agreement, delivered certain partnership records and property to Foti. Foti delivered a check for $5,000 payable to Mrs. Plunkett, and Plunketts' earlier $35,000 note (held by Foti), presumably for cancellation. The Plunketts were then prepared to deliver to Foti instruments conveying their interests in the partnership, the trust, and the locus (apparently as required by art. 11 of the agreement, see Appendix 2). Foti, however, on May 26, 1972, did not deliver to the Plunketts (as required by the agreement) other promissory notes and a mortgage of the locus to secure Foti's obligation under the final decree and the agreement to pay a note, held by New England Merchants National Bank, which had been guaranteed by Mrs. Plunkett and a mortgage (apparently of the locus) to secure this undertaking.

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D. Foti had applied, some weeks earlier, to First Federal Savings and Loan Association of Boston (First Federal) for a loan (see par. E, infra) to the trust to be secured by a mortgage of the locus. First Federal on April 28, 1972, agreed to make such a loan. The facts of Foti's mortgage application and of First Federal's action upon it were not known to the Plunketts until March, 1975.

E. On August 1, 1972, Foti filed a certificate in the registry of deeds declaring that the partnership was the sole beneficiary of the trust, that he was the general partner, and that Dennis C. Stackhouse was appointed by him as trustee of the trust (in succession to Mr. Trevisani, who had resigned in 1970). On August 1, 1972, Stackhouse, purporting to act as trustee of the trust, gave a mortgage of the locus to First Federal to secure a note for $1,300,000 signed by Stackhouse in behalf of the trust and also by Foti. This mortgage was recorded.

F. In the latter part of 1972, Plunkett got in touch with his own attorney, with Foti's attorney, and with Foti in an unsuccessful effort to obtain performance by Foti of his unperformed obligations under the decree and agreement of May 8, 1972. A petition to have Foti adjudicated in contempt was filed by Plunkett on February 1, 1973. On March 5, 1973, Foti was adjudged in contempt and, after proceedings which need not be stated in detail, Foti was determined on January 27, 1978, to be indebted to the Plunketts in the sum of $145,346.36. The order of that date directed Foti to transfer to the Plunketts certain assets in reduction of Foti's liability. The order expressly then made "no determination . . . regarding [the Plunketts' previous] allegations . . . that the mortgages held by First [Federal] . . . should be set aside but" reserved those issues for later determination.

G. No action ever was taken in behalf of the Plunketts to file a lis pendens in the registry of deeds until October 20, 1975. Then such a lis pendens was recorded, after the Plunketts first had become aware of the 1972 mortgage to First Federal. Shortly after that discovery, Plunkett notified First Federal that

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he questioned the validity of the 1972 appointment [Note 7] of Stackhouse as trustee of the trust and also the validity of the 1972 mortgage to First Federal executed by Stackhouse as trustee. [Note 8]

H. On March 12, 1976, Plunkett obtained leave of court to amend his contempt complaint to join Stackhouse and First Federal as parties defendant in order to attempt to pursue the trust assets into the hands of First Federal. In September, 1980, the contempt proceeding again came before the Superior Court. By agreement of counsel, arrangements were made for the Plunketts to proceed on the merits on the Plunketts' substitute amended complaint (and various responsive pleadings) as if those documents had been filed in an independent proceeding against Foti and First Federal. The case was then heard jury-waived by a District Court judge sitting by designation in the Superior Court.

The Trial Judge's Conclusions.

On the basis of his findings the judge reached the conclusions of law summarized below.

(1) The Plunketts, so the judge ruled, have no present legal or equitable interest in the locus, but may seek specific performance of Foti's obligations under the settlement agreement and

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final decree. The judge seems to have regarded the agreement and the decree essentially as self-executing, and as ending the Plunketts' "involvement in the partnership . . . in return for a[n] . . . adjudication of . . . [their] claims against Foti," although the agreement remained subject to the continuing jurisdiction of the Superior Court to compel specific performance. [Note 9]

(2) Foti's liability to the Plunketts is set forth in the agreement and decree of May 8, 1972, as further adjudicated by the order of January 27, 1978.

(3) Plunkett could not challenge (a) an alienation of Foti's interest in the locus, except as a transfer in fraud of creditors, or (b) the validity of the mortgage to First Federal of the locus in August, 1972.

(4) First Federal (so the judge concluded) received a good security title under the mortgage of August, 1972. [Note 10]

(5) The Plunketts had accepted satisfaction from Foti of some part of his obligations under the 1972 agreement, and then had consistently sought until 1978 to compel specific performance of the agreement, without filing any lis pendens until 1975. This

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led the trial judge to conclude that the Plunketts were estopped to assert in March, 1976, any equitable interest in the locus.

(6) The Plunketts, so the judge concluded, are barred (a) by laches (1972 to 1976) from asserting any equitable interest in the locus, and (b) by the doctrine of "clean hands" [Note 11] from seeking to invalidate the 1972 mortgage to First Federal. The trial judge then concluded that, as between Plunkett (whose conduct, in many respects, exposed his interest to possible abuse by Foti) and First Federal "which at all times acted in good faith, the equities on the side of" First Federal have the greater weight. Accordingly he ordered judgment for First Federal on the Plunketts' action against it. Judgment entered accordingly. The Plunketts have appealed.

1. The Plunketts first contend that the agreement and decree of May, 1972, did not divest them of their indirect ownership interest in the locus. They argue that the agreement was executory and that they were to transfer their indirect equity interest in the locus to Foti in return for his actual payments and for certain indemnification of the Plunketts by Foti against possible liabilities. Although the final paragraph of the preamble of the agreement states the intention that the Plunketts' interest in the partnership, the trust, and the locus shall be divested, the time of such divesting is not stated. The obligations of par. 1 of the agreement speak of payments to be made by Foti in the future and refer to a "closing" to take place on a date certain after the entry of the decree. It is not made clear, however (see Appendix 2), whether the "closing" mentioned relates only to Foti's obligations under art. 1. Article 9, already quoted (see summary of the trial judge's findings, par. B, supra), and

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art. 11 (see Appendix 2) both suggest that the Plunketts' acts there specified were to take place in the future, presumably at some closing. Consequently, despite the words of arts. 9 and 11 of the agreement that the Plunketts were to "effectuate full and complete ownership" in Foti of their interests in the partnership, the trust, and the locus "upon" or "at the execution of this agreement," we do not accept the trial judge's conclusion that the agreement and decree of May, 1972, in effect were wholly self-executing. The strongest indication to that effect, of course, is the phrase "at the execution of this agreement." [Note 12] We, of course, recognize that the 1972 agreement and decree contained serious ambiguities. [Note 13]

The interpretation of the agreement and decree of May 8, 1972, in some degree may be affected by the later conduct of the parties. See Martino v. First Natl. Bank of Boston, 361 Mass. 325, 332 (1972). The fact (see note 9, supra) that the Plunketts, after 1972, did not use in tax returns the income and possible tax deductions related to the locus may be some indication that the Plunketts regarded the agreement as releasing all their interest in the locus. This indication has been considered in our different interpretation of the 1972 agreement.

The Plunketts, of course, never had title to the locus, so no deed from them would have been required. Nevertheless, appropriate assignments of their partnership and trust interests (against Foti's performance) would have been usual and seem called for by arts. 9 and 11 of the 1972 agreement.

There is no question that the Plunketts at first pressed for performance by Foti of the agreement through their and Foti's

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counsel and took no action to set aside the 1972 agreement and decree, which at least had been partly performed by Foti at the closing on May 26, 1972. The contempt petition in March, 1973, and the Plunketts' efforts to obtain adjudication of the amount due to them, culminating in the Superior Court order of January 27, 1978, are acts to enforce the 1972 agreement and decree rather than to set them aside. All of these efforts, however, took place after the mortgage of the locus on August 1, 1972, had been given by Stackhouse to First Federal. Thus the Plunketts' efforts could not have misled First Federal into any belief that the Plunketts were treating the agreement of May 8, 1972, as transferring in and of itself to Foti their interest in the locus. [Note 14] We perceive no change of position by Foti resulting from the Plunketts' efforts to enforce the 1972 agreement which should estop them in 1976 to attempt to set aside the 1972 mortgage as an alternative remedy by way of substitution for or amendment of their earlier contempt complaint.

2. The Plunketts contend that the limited partnership was dissolved as matter of law on December 31, 1971, by virtue of the statement to that effect reflected in the certificate filed in 1968 with the Secretary of the Commonwealth (see note 5, supra, and the related text of this opinion). See G. L. c. 109, Section 2(1)(a)(V), as it read prior to the amendment by St. 1982,

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c. 202, Section 1; but see now the Revised Uniform Limited Partnership Act, G. L. c. 109, Section 8(a)(11). The trial judge found (as has been stated in note 3, supra), that the tone of the agreement of May, 1972, suggested that the partnership was treated by Foti and Plunkett as still then in existence. [Note 15]

3. The trust (see Appendix 1, to this opinion) provides (art. 4) only one method of appointing a new trustee to fill a vacancy, viz., "upon request of the [b]eneficiaries by instruments in writing signed by the remaining [t]rustee . . . then acting" (emphasis supplied). On August 1, 1972, when Foti filed in the registry of deeds (see par. E, summary of findings, supra) his certificate (as to the beneficial interests in the trust) and purported to appoint Stackhouse as trustee, there was no remaining trustee of record. There thus was no compliance with the trust instrument which seems to us explicit on the point, even if it (see note 11, supra) could have been less "inartfully drawn." The validity of the purported appointment of Stackhouse (without prior resort to the procedure under G. L. c. 203, Section 5) was placed at the least seriously in doubt. See Restatement (Second) of Trusts Section 108 (1959); 2 Scott, Trusts Sections 108.2-108.4 (3d ed. 1967 & Supp. 1983). See also Park, Real Estate Law Section 163 (1981); Davis, Massachusetts Conveyancers' Handbook Section 5 (2d ed. 1967 & Supp. 1983). [Note 16] The Plunketts contend that First Federal, from the recorded trust, had notice of the trust's provisions and should have known that a mortgage from Stackhouse to it could convey no security title. See G. L. c. 203,

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Section 2. [Note 17] See also Baker v. James, 280 Mass. 43, 46-47 (1932); Swartz v. Sher, 344 Mass. 636, 642 (1962). The Plunketts or their counsel reasonably could have believed in 1970 and thereafter that no transfer of the locus by the trust could be undertaken without a court appointment of a new trustee involving notice to them. See Dexter v. Cotting, 149 Mass. 92, 95-96 (1889); Waitt v. Harvey, 312 Mass. 384, 391 (1942). See also the last sentence of note 17.

4. The situation presented is one where First Federal has taken and foreclosed a mortgage signed by Stackhouse purporting to act as trustee. First Federal had constructive notice from the registry record that Stackhouse's appointment did not conform to the method designated in the trust. First Federal also probably should be regarded as having constructive notice that the term of the partnership had expired and that a mortgage, except as a step in liquidation of the partnership, in any event was of doubtful propriety.

The Plunketts made no representations to First Federal, for they were not informed of the proposed mortgage and did not know of it until 1975. Prior to 1970 Plunkett had placed in Foti (see notes 4, 5, 10, and 11, supra) strong indicia of authority to act for the partnership, at least while it was conducting the partnership enterprise. He had permitted legal title to the partnership's principal asset to be in a nominee trust without any disclosure on the registry record of the beneficial ownership. The Plunketts had been parties to the 1972 agreement with Foti which was in various respects ambiguous. They had not been diligent in pursuing Foti or in protecting their interests, but we perceive no respect in which they had been guilty of laches in any manner affecting First Federal or of unconscionable

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conduct which should bar them from relief because of the "clean hands" principle. 2 Pomeroy, Equity Jurisprudence Sections 397-404 (5th ed. 1941). Their failure to file in the registry of deeds, prior to 1975, any lis pendens had no tendency to mislead First Federal into taking a mortgage in August, 1972, from one who was not a validly appointed trustee after the term of the partnership had expired in accordance with its certificate on file with the Secretary of the Commonwealth.

As between two parties, First Federal and the Plunketts, each acting in good faith, we perceive no reason for barring the Plunketts from relief on any of the grounds relied on by the trial judge (see note 11 and related text, supra). We hold that the Plunketts may move to set aside the mortgage and to reach the locus or its proceeds in efforts to obtain satisfaction of their claims.

The judgment is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

APPENDIX 1.

Pertinent Provisions of the Copley Trust.

Such provisions include the following:

"2. The Trustee shall have full . . . authority to take . . . all and only such lawful and proper action with respect to the Trust Estate (including . . . deeds, mortgages, . . . which may . . . extend beyond the termination of this Trust) as may be directed in writing by all of the Beneficiaries . . . . 3. All persons dealing with or claiming under any action taken by the Trustee may rely conclusively upon a certificate signed by any Trustee as to any fact or facts concerning . . . this Trust, including without limitation, directions or notices given or other actions taken by the Trustee or the Beneficiaries pursuant hereto; and every instrument executed and delivered by the Trustee shall of itself be conclusive evidence that the Trustee was directed by all of the Beneficiaries to execute and deliver the same and that this Trust was then in full force and effect . . . . 4. Any Trustee may . . . resign by an instrument in writing, mailed . . . to the Beneficiaries . . . and

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successor or additional Trustees shall be appointed . . . upon request by the Beneficiaries by instruments in writing signed by the remaining Trustee or Trustees then acting hereunder. Upon every appointment of a new or additional Trustee, the title to the Trust Estate shall, without more, vest in such Trustee jointly with the remaining Trustee or Trustees. [Paragraph 5 omitted.] 6. This Trust Agreement shall be recorded with the Suffolk Registry of Deeds and the Trustee shall from time to time record with said Registry certificates signed by him as to any resignation, removal or appointment of Trustee, and upon termination, the Trustee shall likewise file or record a certificate thereof. Any person dealing with the Trust Estate may rely conclusively upon any certificate by the Trustee of the kind described above, which is signed by a person who, according to the records of such Registry, appears to be a Trustee hereunder. In addition, any person dealing with the Trust Estate may rely conclusively upon a certificate signed by persons, who, according to the records of such Registry, appear to be the Beneficiaries hereof, to the effect that any successor Trustee hereunder has been validly appointed and is authorized to act with respect to the Trust Estate and possesses full powers and authority granted to the Trustee hereunder. [Paragraph 7 omitted.] 8. . . . . The word "Trustee" as used in this Declaration of Trust shall refer to the Trustee or Trustees from time to time acting hereunder . . . ." (Emphasis supplied.)

APPENDIX 2.

Certain Provisions of the Settlement Agreement of May 8, 1972.

Articles (in addition to those mentioned in the body of this opinion) of the agreement of May 8, 1972, provided for certain payments to be made by Foti to the Plunketts or to creditors of the partnership, and for indemnification of the Plunketts by Foti against various claims. Article 1 expressly provided that "[t]he closing shall be held no later than by the close of that business day which occurs on the 10th calendar day after the date of entry of" a decree, in the case then being settled. It is not clear, however, whether the term "[t]he closing" referred only (a) to obligations of Foti under art. 1 of the agreement or (b) to all obligations of Foti and the Plunketts under other provisions of the agreement, including art. 11, requiring the Plunketts to "execute and deliver [to Foti] all documents necessary . . . to effectuate . . . complete ownership in" the partnership, the trust, and the locus "at the execution of this Agreement, and thereby any and all claims by the parties to each other relating to . . . [the trust, the partnership, and the locus] whatever, directly or indirectly shall terminate." Article 13 of the agreement referred to a note of Foti and one or the other of the Plunketts to New England Merchants National Bank against liability on which Foti was to indemnify the Plunketts, and to secure this indemnification Foti agreed to give a suitable mortgage and note "upon the execution of this Agreement or within such time as the parties do agree in writing."