Plaintiff, James Dowd, as Successor Trustee under the will of Richard Johnson, commenced this action on October 9, 2007, seeking to partition, pursuant to G.L. c. 241, § 1, two parcels of real property with two dwellings, known as and numbered 15 and 19 Emmons Road in Bourne. Defendants, Judith Stebbins, Robert G. Johnson, and Karen Newsom, filed an Answer and Counterclaim on November 28, 2007. On December 17, 2007, plaintiff filed a reply to the defendants Counterclaim. Plaintiff claims that Richard Johnson held a one-quarter interest in the property as a tenant in common, that this interest is properly included in Richards probate estate, and that it is now controlled by plaintiff, as Successor Trustees of Richards estate. Defendants disagree, contending that Richard conveyed his interest to the BIJ Beach Trust and, therefore, was not the owner at the time of his death.
On November 28, 2007, defendants filed a Motion for Joinder of Persons Needed for Just Adjudication, seeking to join Richards children, Derek C. Johnson and Meredith A. Johnson, as defendants-in-counterclaim. The motion was argued before the Court (Trombly, J.) on December 17, 2007, and allowed, thus joining Derek and Meredith as defendants-in-counterclaim to this action. On January 30, 2008, defendants-in-counterclaim filed a reply to the defendants Counterclaim.
On April 13, 2009, plaintiff filed a Motion for Summary Judgment and a Memorandum in support thereof. Defendants opposed the motion on May 13, 2009. On May 19, 2009, the Court took a view of the Property in the presence of counsel. On May 21, 2009, plaintiff filed an Omnibus Motion to Strike (1) the defendants Memorandum of Law in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment; (2) the defendants Statement of Material Facts; (3) the Affidavit of Judith Iris Stebbins; and (4) the Affidavit of Robert Kip G. Johnson. Defendants opposed the plaintiffs Omnibus Motion to Strike on May 26, 2009. The motions were argued on May 26, 2009, and are the matters presently before the Court.
After reviewing the record before the Court, I find that the following facts are not in dispute:
1. This action concerns two parcels of land with two dwellings, known as and numbered 15 and 19 Emmons Road in Bourne (the Property).
2. Prior to March 29, 1990, Barbara I. Johnson (Ms. Johnson), held fee title to the Property. By deed dated March 29, 1990, and recorded in the Barnstable County Registry of Deeds in Book 7110, Page 239, Ms. Johnson conveyed the Property to her four children, Richard Johnson (Richard) and defendants, Judith Stebbins, Robert G. Johnson (Kip), and Karen Newsom (Ms. Newsom) (collectively the Children), as joint tenants, retaining a life estate to herself.
3. By deed dated May 4, 1995, and recorded in Book 9645, Page 58, the Children conveyed their remainder interest in the Property to themselves as tenants in common.
4. On July 21, 1995, Richard initiated divorce proceedings against his wife Linda Johnson (Linda) in Worcester Probate Court. On November 4, 1996, Richard and Linda executed a marked-over separation agreement, which was retyped and re-executed on November 12, 1996 (the Separation Agreement).
5. Exhibit D to the Separation Agreement provides, in relevant part: The Husband will insure that his 1/4 interest in the Cape Cod real estate shall pass to his children, Derek and Meredith Johnson.
6. On November 4, 1996, the Probate Court approved the Separation Agreement and entered a Judgment of Divorce Nisi in the action, incorporating the agreement.
7. In the meantime, on May 21, 1996, Ms. Johnson passed away. At that time, fee title vested in the Children, each holding an equal, undivided, one-quarter (1/4) interest in the Property, as tenants in common.
8. The Children believe that Ms. Johnsons wish was that the Property remain in the family for future generations to enjoy.
9. Prior to October 11, 1997, Ms. Newsom began having some form of financial difficulty.
10. On or about October 11, 1997, the Children executed the Agreement of BIJ Beach Trust (the BIJ Agreement).
11. The BIJ Agreement creates an organization named the BIJ Beach Trust.
12. The Children contend that the purpose of the BIJ Beach Trust is to protect the Property against partition, and to preserve and maintain it for future generations of the family.
13. The BIJ Agreement states that its purpose is to own, rent, lease, repair, alter and otherwise deal in and with real estate and personal property of all types and descriptions, and to engage in such other business as the General Trustees shall determine.
14. The Children have stated that the BIJ Beach Trust is a partnership as well as a trust for the benefit of future generations of the family.
15. The BIJ Agreement was drafted using as an example an existing partnership agreement, which had been drawn up and used earlier by a neighbor for his land.
16. The BIJ Agreement uses the terms trustee and partner, and trust and partnership, interchangeably.
17. The BIJ Agreement names the four Children as trustees.
18. The BIJ Agreement defines the term trustee as one of the original four partners.
19. Exhibit A attached to the BIJ Agreement lists the Partners Capital Contributions as each of the Childrens one-quarter, undivided interests in the Property.
20. By deed dated October 11, 1997, the Children conveyed the Property to themselves as Trustees of the BIJ Beach Trust (the 1997 Deed).
21. The 1997 Deed was not immediately recorded.
22. Since the BIJ Agreement, the Children have cooperated in the management and maintenance of the Property, including its rental, from time-to-time.
23. The Children have stated that the BIJ Beach Trust is not a business.
24. Section 16(a) of the BIJ Agreement provides:
On the death of a Trustee, his/her twenty-five percent (25%) (or other existing) share in the Trust will revert back to the Trust as a whole. Direct offspring of the deceased Trustee will assume their share as long as said offspring are willing to sign the Trust Agreement in effect at the time of the death . These terms and conditions include the right to withdraw and to be paid compensation as indicated in Exhibit B of this Agreement.
25. Section 15(a) of the BIJ Agreement provides:
Any Trustee shall have the right to withdraw from the Trust at any time. Written notice of intention to withdraw shall be served upon the other Trustees at least sixty (60) days before the withdrawal . The Withdrawing Trustees interest (share) will be divided equally among the remaining Trustees and Exhibit B amended.
26. Section 15(c) of the BIJ Agreement provides:
When a Trustee withdraws from the Trust, the value of his/her interest (share) as set forth in Exhibit B will be paid to the Withdrawing Trustee by the Trust (consisting of the remaining Trustees) within six months from the effective date of the withdrawal. Any outstanding amounts in the withdrawing Trustees Financial Contribution Account will be deducted from the value shown in Exhibit B prior to payment.
27. On March 31, 1999, Richard passed away, leaving two children: defendants-in-counterclaim, Derek C. Johnson (Derek) and Meredith A. Johnson (Meredith).
28. It is undisputed that Richards will created a testamentary trust. Under the terms of this trust, his estate was to be held for the benefit of his children Derek and Meredith until their respective twenty-fifth birthdays, when the share of each was to be handed-over to them.
29. Kip was named Executor of Richards estate. Kip considered Richards interest in the Property to have been conveyed to the Trust by the 1997 Deed and, therefore, did not include it in the accounting of Richards estate.
30. Kip was also named trustee of Richards testamentary trust. However, at some point, Kip resigned as trustee and was replaced by plaintiff, James Dowd.
31. Kip filed the estate tax return for Richards estate and, again, did not include the Property in this valuation. In support of this omission, Kip attached certain relevant pages of the BIJ Agreement with the return filings.
32. In or about 2001, Attorney Anne Yates, attorney for Richards estate, forwarded the estate tax return to Attorney Michael D. Brockelman, attorney for Linda, Derek, and Meredith. Attorney Brockelman reviewed the included pages of the BIJ Agreement and notified his clients. He did not object to the treatment of the Property as part of the BIJ Beach Trust.
33. On April 17, 2002, the Worcester Probate Court accepted Kips First and Final Account of Richards estate and entered Judgment in the action.
34. It is undisputed that Derek and Meredith never objected to Kips accounting of Richards estate, in this manner.
35. By letter dated May 19, 2005, and again on December 28, 2005, Mr. Dowd, on behalf of Derek and Meredith, expressed Derek and Merediths wish to disclaim any ownership in the Property and requested information on how to proceed to affect that result.
36. By two checks dated August 2, 2006 and August 7, 2006, defendants made payment to Derek and Meredith jointly, of $1,300.51 and $7,000.00.
37. On February 16, 2006, Derek turned twenty-five years old.
38. On January 23, 2009, Meredith turned twenty-five years old.
39. Derek Johnson and Meredith Johnson never signed the BIJ Agreement.
40. The Settlement Agreement was recorded on January 31, 2008.
41. It is undisputed that Derek and Meredith have not made financial or labor contributions to the Property since 2004.
I. ORDER DENYING THE PLAINTIFFS OMNIBUS MOTION TO STRIKE
As an initial matter, plaintiff moves to strike (1) the defendants Memorandum of Law in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment; (2) the defendants Statement of Material Facts; (3) the Affidavit of Judith Iris Stebbins; and (4) the Affidavit of Robert Kip G. Johnson. After reviewing the record, it is hereby:
ORDERED that the plaintiffs Omnibus Motion to Strike is DENIED;
Defendants challenge whether plaintiff has standing to bring this case. General Laws chapter 241, § 1 provides that the right to partition is that of [a]ny person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption. Defendants argue that that plaintiff is the successor trustee under the will of Richard Johnson and that the purpose of the testamentary trust has been fulfilled, thereby terminating the trust and, along with it, the plaintiffs duties and rights, including the right to bring this case. [Note 1] It is undisputed that upon his death on March 31, 1999, Richards will created a testamentary trust through which his estate was to be held for the benefit of his children, Derek and Meredith, until their respective twenty fifth birthdays, at which time the share of each was to be handed over. Derek turned twenty-five on February 16, 2006, and Meredith on January 23, 2009. Any property properly in the testamentary trust should have been handed over to Derek and Meredith on those dates, and plaintiffs duties and rights concluded. Nonetheless, if plaintiff is correct in his contention that the Property should have been included in the probate estate and, specifically, in the testamentary trust, his duties and rights as successor trustee remain and he would have standing to bring this case.
It is undisputed that Judgment was entered by the Worcester Probate Court on the estate of Richard. Neither Derek nor Meredith ever objected to the accounting of Richards estate, which did not include the Property. On April 17, 2002, the Probate Court accepted the final account of Richards probate estate in this form and entered Judgment in that action. There is no allegation that plaintiff was not properly noticed of the accounting of the probate estate, or that other procedural defects occurred in the probate of Richards estate. Therefore, Richards probate estate, and including the testamentary trust, have been finalized, and this Court is bound by that judgment and is without jurisdiction to review it. See G.L. c. 206, § 24; Svenson v. First Natl Bank of Boston, 5 Mass. App. Ct. 440 , 447 (1977). Accordingly, I rule that plaintiff does not have standing as trustee to now claim that the interest in the Property is properly included in the probate estate. Nonetheless, even if plaintiff did have standing, Richards prior interest in the Property is not properly part of the probate estate.
III. SUMMARY JUDGMENT
Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews the evidence in the light most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).
In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Commr of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.
With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case, or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).
When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts. Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from pleadings, [Note 2] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with affidavits, if any. Mass. R. Civ. P. 56(c).
In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.
a. Form of the BIJ Beach Trust
i. Whether the BIJ Beach Trust is a partnership.
Defendants are certain that the BIJ Beach Trust is a partnership and conclude that property held by a partnership is not subject to partition. General Laws chapter 108A, § 6 defines a partnership as an association of two or more persons to carry on as co-owners a business for profit . Whether a partnership exists is a question of intent, which may be proved either by an express agreement or inference drawn from the acts or conduct of the parties. See Fenton v. Bryan, 33 Mass. App. Ct. 688 , 691(1992); Shain Inv. Co., Inc. v. Cohen, 15 Mass. App. Ct. 4 , 7 (1982); John Alden Transp. Co., Inc. v. Bloom, 11 Mass. App. Ct. 920 , 921 (1981). In determining whether a partnership exists the Court considers, among others factors, whether there is (1) an agreement by the parties manifesting their intention to associate in a partnership, (2) a sharing by the parties of profits and losses, and (3) participation by the parties in the control or management of the enterprise. Fenton, 33 Mass. App. Ct. at 691; Boyer v. Bowles, 310 Mass. 134 , 138 (1941); Shain Inv. Co., Inc., 15 Mass. App. Ct. 7 -10.
In the instant case, on October 11, 1997, the Children executed the BIJ Agreement, creating an organization named the BIJ Beach Trust. [Note 3] It is clear that the Children did not fully understand the legal distinction between a partnership and trust, and lacked the experience necessary to draft an unambiguous legal document. The Children contend that the BIJ Beach Trust is a partnership of owners but, in order to abide by their mothers wishes, simultaneously considered themselves trustees of the Property for the benefit of their children. Stebbins Dep. 152:6-17, Mar. 21, 2008, attached to Pl.s App. Supp. Summ. J. Ex. 4. Circumstantially, the BIJ Beach Trust was created in response to the financial difficulties faced by one of the Children, Ms. Newsom. Although the stated purpose of the BIJ Beach Trust is the management of real estate, personal property, and other business, the Children have stated that the purpose was to prevent the partition of the Property and, thereby, preserve it for future generations of the family. The BIJ Agreement was drafted using as an example an existing partnership agreement. The BIJ Agreement names the Children as trustees, but uses the terms trustee and partner, and trust and partnership, interchangeably. The BIJ Agreement defines the term trustee as one of the original four partners.
Plaintiff argues that BIJ Realty Trust is not a partnership at all because the Children did not intend to carry on a business for profit. The existence of a partnership is a question of the intent of the parties; whether a partnership arises depends upon their intent to associate as such. Shain Inv. Co., Inc., 15 Mass. App. Ct. at 7; Cardullo v. Landau, 329 Mass. 5 , 8 (1952); Ross v. Health & Ret. Properties Trust, 46 Mass. App. Ct. 82 , 85 (1998). Although, on its face, the BIJ Agreement could be viewed as establishing a partnership, the terms are ambiguous. In addition, the intent of the Children was clearly to protect the Property from partition, and not to conduct a business. See Stebbins Dep. 146:4-9 and 12-14. This is not activity constituting a business for profit. See Boyer, 310 Mass. 134 . While the Children may have intended to create an organization identified as a partnership, they employ this term in its familiar, rather than legal, usage. Their intent was to work cooperatively as owners and siblings, but not to carry on a business for profit. Defendants allege that the BIJ Beach Trust has been used since its inception to manage the property and share profits and losses realized from renting the Property. Plaintiffs counter-argue that such rental activity has always been intermittent and infrequent and is not reasonably characterized as a business. Although I agree with defendants that evidence that an enterprise does not regularly realize a profit is not determinative against partnership status, the fact remains that the Children did not ever have any intention of creating a business for profit. Accordingly, I rule that the BIJ Beach Trust is not a partnership.
ii. Whether the BIJ Beach Trust is a trust.
Defendants argue in the alternative that the BIJ Beach Trust is a trust. Generally, a trust is a device by which property is held by one person for the benefit of another. S.M. Dunphy, Probate law and Practice § 37.1 (2d ed. 1997); see Weaver v. Wood, 425 Mass. 270 , 274 n. 8 (1997) (quoting Restatement (Second) of Trusts § 348 (1959)). Generally, the creation of a valid express trust requires (1) an intent to create a trust, (2) a clearly identifiable trust res; and (3) sufficiently identifiable beneficiaries. Tretola v. Tretola, 442 Mass. 1109 (2004); Druker v. State Tax Commn, 374 Mass. 198 (1987); Bucklin v. Natl Shawmut Bank, 355 Mass. 338 (1969); Russell v. Meyers, 316 Mass. 669 (1944); Slattery v. Wason, 151 Mass. 266 (1890); Nichols v. Allen, 130 Mass. 211 (1881). The declaration of trust must be sufficiently clear so as to demonstrate the intent of the settlor to create a trust and the present time by separating legal and equitable titles. The language must contain sufficient detail so as to allow it to be properly enforced and administered. See Cooney v. Montana, 347 Mass. 29 (1964); Ventura v. Ventura, 407 Mass. 724 (1990); Pond v. Pond 424 Mass. 894 (1997).
In the instant case, although inartfully drafted, the BIJ Agreement manifests the Childrens intent to create an organization possessed of legal title and charged with the disposition of equitable title. The BIJ Agreement creates the BIJ Beach Trust, names the Children as the trustees, and states that the purpose of the trust is to manage the trust res. Exhibit A to the BIJ Agreement lists each of the one-quarter, undivided interests in the Property of the Children as capital contributions to the organization. In addition, the 1997 Deed, executed the same day, conveyed the Property to the BIJ Beach Trust. The BIJ Agreement does, however, fail to identify the beneficiaries of the trust. The Children have stated that the trust is for the benefit of future generations of the family; however, this opinion is too indefinite to create an open class of beneficiaries. Therefore, a resulting trust arises in favor of the settlors, in this case, the Children. See Nichols v. Allen, 130 Mass. 211 (1881).
Plaintiff argues that the BIJ Beach Trust is not a valid trust because the BIJ Agreement was never acknowledged or recorded. There is no legal basis for this argument. There is no requirement that a trust be acknowledged or recorded to be valid. See G.L. c. 203, § 2; G.L. c. 183, § 29. Plaintiff notes that an unacknowledged trust does not comport with the statue of wills. However, this argument confuses the issue; the BIJ Beach Trust is not a testamentary trust, but an inter vivos trust created by the BIJ Agreement during Richards lifetime.
It is likely that plaintiff intends to argue that the 1997 Deed conveying the Property into the BIJ Beach Trust is not a valid conveyance because it was not acknowledged or recorded. This argument similarly lacks a legal basis. Acknowledgement of a deed is required only to record the deed, not to make it valid. See G.L. c. 183, § 29. Moreover, G.L. c. 183, § 4 provides that recordation of a deed is required to make it valid as against any person, except the grantor , his heirs and devisees and persons having actual notice of [the conveyance] . Here, plaintiff, as trustee, stands in the shoes of Derek and Meredith, heirs and devisees of Richard. In addition, it is undisputed that Michael Brockelman, attorney for Derek and Meredith, had several pages of the BIJ Agreement and other documents, which served to put him, and thereby Derek and Meredith, on notice of the conveyance of the Property to the BIJ Beach Trust. I conclude, therefore, that the October 11, 1997 deed is valid as against plaintiff.
Plaintiff argues also that the BIJ Realty Trust is not a valid trust because it contained no corpus at the time of its execution. However, the Property is clearly identified in the BIJ Agreement. The BIJ Agreement states that its purpose is to manage real property and Exhibit A lists each of the one-quarter, undivided interests in the Property of the Children as capital contributions to the organization. Moreover, the trust was created and, on the same day, the Property was conveyed to the trust. Although the documents are not ideally coordinated, plaintiff cites no authority that persuades me that they are not sufficient to place the Property in a valid trust. Accordingly, I rule that the BIJ Agreement created a trust.
Trust property is not subject to partition. Rolland v. Hamilton, 314 Mass. 56 , 60 (1943); see G.L. c. 241, § 1. A trust estate is not of the type of estate contemplated by G.L. c. 241, § 1. Moreover, the Land Court does not, generally, have jurisdiction to terminate a trust. See G.L. c. 185, § 1. Accordingly, the Court does not have jurisdiction to grant the relief sought by plaintiff.
b. Effect of the Separation Agreement.
Plaintiff argues that the Separation Agreement between Richard and Linda created a life estate in Richards interest in the Property with the remainder interest conveyed to Derek and Meredith. Plaintiff concludes that Richard could convey no more than this life estate to the BIJ Realty Trust, when he executed the 1997 Deed, and that Derek and Meredith are, therefore, the owners in fee of the one-quarter, undivided interest in the Property. However, this argument runs into still another standing problem for plaintiff. If plaintiff were to succeed in this contention, the Separation Agreement operated to convey a future interest in the Property to Derek and Meredith. Upon Richards death, the remaining present interest held by Richard would have passed automatically to the remaindermen, Derek and Meredith. The Property would never have been part of either the probate estate or the testamentary trust. For that reason, plaintiff does not have standing as trustee of the testamentary trust to seek title to the Property. Instead, Derek and Meredith would have to bring suit, themselves, to assert this right.
Even if plaintiff did have standing to bring this claim, the Separation Agreement did not create a life estate. The relevant part of the Separation Agreement reads: The Husband (Richard) will insure that his 1/4 interest in the Cape Cod real estate (the Property) shall pass to his children, Derek and Meredith Johnson. It is basic property law that a life estate is created by dividing an estate in property by its present and future interests. These divided interests are held in separate ownership. The rights of the holder of the present interest are limited in duration by the measuring life and to certain use of the property, because the future interest in the property is held by a remainderman or retained by the grantor. See G.L. c. 184, § 5; A.L. Eno & W.V. Hovey, Real Estate Law § 5.61 (4th ed. 2004) (and cases cited). This estate then requires a transfer of an interest in the property. Here, the provision of the Separation Agreement is not such a transfer, but rather a promise by Richard to provide that the Property is inherited by Derek and Meredith, in some way, at some time. This language is not reasonably construed as a conveyance of a future interest in the property to Derek and Meredith.
Plaintiff argues in the alternative that this provision of the Separation Agreement must create a trust for the benefit of Derek and Meredith. This is clearly not the case; as discussed previously, the provision is not a conveyance of any kind: either future interest or legal title. The provision is one sentence in length and expresses no overt declaration or intent to create a trust. Each element of a trust would have to be inferred from this general statement of promise, and I decline to impute such meaning where none is due.
Plaintiff argues also that the Separation Agreement requires Richard to provide that his interest in the Property passes to Derek and Meredith and therefore, binds him from otherwise transferring that interest. While this may be true, this obligation on Richard has no effect on the conveyance of his interest in the Property to the BIJ Beach Trust. Again, the Separation Agreement does not constitute a conveyance of Richards interest in the Property. Richards action contrary to the Separation Agreement, then, can only be a breach of the contract between Richard and Linda and in contempt of the Probate Court Judgment of Divorce Nisi.
Even if the Separation Agreement were a conveyance, it was not recorded prior to the execution of the 1997 Deed and the other Children did not have actual knowledge of the relevant provision. The effect of G.L. c. 183, § 4, the recording statute, is to give priority to a bona fide purchaser over a previous, unrecorded conveyance. Lamson & Co. v. Abrams, 305 Mass. 238 , 244 (1940) ([t]he purpose of the recording statute, G.L.(Ter.Ed.) c. 183, § 4, is to show the condition of the title to a parcel of land and to protect purchasers from conveyances that are not recorded and of which they have no notice) (and cases cited). There is nothing on the record to indicate that the other signatories of the BIJ Beach Trust had notice of the relevant provision of the Separation Agreement.
Plaintiff argues that the Separation Agreement was attached to the Judgment of Divorce Nisi and therefore public record. In the context of conveyance of real property, [t]he statutory requirement of actual notice has been strictly construed. Knowledge of facts which would ordinarily put a party upon inquiry is not enough. Gen. Builders Supply Co. v. Arlington Coop. Bank, 359 Mass. 691 , 697 (1971). In this case, a Probate Courts Judgment in a divorce proceeding is simply not sufficient to charge the grantees with constructive notice. There is nothing on the record to indicate that a title search of the Property would reveal anything suggesting that a diligent search includes an examination into Richard and Lindas divorce, and even less on the face of the Separation Agreement that it might serve to encumber the Property. It is undisputed that the Separation Agreement was not recorded until January 31, 2008. Therefore, the Separation Agreement does not operate against the 1997 Deed, and the relief available to a party on this claim is not within the authority of the Land Court.
Plaintiff argues that the Settlement Agreement was recorded prior to the recording of the 1997 Deed and, therefore, takes priority. However, as previously discussed, the Separation Agreement is not a conveyance of property. Its recording at the registry serves only as notice that Richard may be bound by an agreement; it does not solidify any property rights in Derek and Meredith. Derek and Meredith are, at most, third-party beneficiaries to a contract between Richard and Linda.
In any event, the issue is moot; Derek and Meredith had knowledge of the BIJ Beach Trust and its provision for the option of heirs to take over the interest of a trustee. However, instead of exercising that option, Derek and Meredith voluntarily waived their right to Richards BIJ Beach Trust interest. By letter dated May 19, 2005, and again on December 28, 2005, Mr. Dowd, on behalf of Derek and Meredith, expressed Derek and Merediths wish to disclaim any ownership in the Property and requested information on how to proceed to affect that result. In response, the trustees paid Derek and Meredith, jointly, $1,300.51 and $7,000. Derek and Meredith, therefore, exercised Richards right of withdrawal from the BIJ Realty Trust and were paid the fair value of his interest, pursuant to the terms of the trust.
Plaintiff argues lastly that Derek and Meredith are due some form of equitable relief, including in the form of a constructive trust. I disagree; plaintiff has shown no grounds for such relief.
For the foregoing reasons, this Court concludes that plaintiff does not have standing to bring this action. Accordingly, the plaintiffs Motion for Summary Judgment is hereby DENIED and Summary Judgment is GRANTED in favor of defendants. The Complaint is hereby DISMISSED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Dated: July 6, 2009
[Note 1] Although Derek and Meredith, as heirs of Richard, may have standing to bring an action concerning an interest in the Property, they are not named as plaintiffs in this action, nor have they been joined as parties. Derek and Meredith have been joined as defendants-in-counterclaim by defendants, and although plaintiff, in his Motion for Summary Judgment, has attempted to include Derek C. Johnson and Meredith A. Johnson as plaintiffs by way of the case caption, this is an inappropriate and ineffective characterization of their status in this case. Plaintiff has never filed a motion to join Derek and Meredith or otherwise amend the Complaint. Therefore, Derek and Meredith are parties to this case as defendants-in-counterclaim only.
[Note 2] A motion for summary judgment can rest in whole or in part on facts set forth in the moving partys pleadings if, but only if, they are conceded in the opposing partys pleadings. Cmty. Natl Bank, 369 Mass. at 557 n.6. It may also rest on the allegations contained in the opposing partys pleadings. G. L. c. 231, § 87 (in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them).
[Note 3] Plaintiff contends that there exist different versions of the BIJ Agreement, signed at different times by the Children. Plaintiff argues that these different versions contain different dispositive provisions, but does not state how this materially affects this case. Defendants explain that the incomplete copies of the BIJ Agreement are drafts, signed by the parties, which differ primarily only by cosmetic and typographic corrections. I do not grasp the plaintiffs purpose in this foray; he may or may not raise an issue of fact, but it is not material. Plaintiff does not dispute that a version of this agreement was signed, containing the provisions relevant to this litigation. Therefore, I consider the October 11, 1997 version of the BIJ Agreement to be the final and complete version.