ELIAMISE A. ZAMOR v. KARL H. BEAUBRUN

Plaintiff Eliamise A Zamore ("Eliamise") filed her unverified complaint on February 22, 2010, pursuant to the provisions of G. L. c. 240, § 6-10, seeking to remove a cloud on title on property purportedly owned by Eliamise and located at 147 Franklin Street, Haverhill, Massachusetts ("Locus"). A case management conference was held on April 26, 2010. A pre-trial conference was held on October 13, 2010, and a continued pre-trial conference was held on February 16, 2011. A trial was scheduled for May 12, 2011, but was continued to June 27, 2011, and then to July 27, 2011, when it was held at the Land Court in Boston, MA. [Note 1] Defendant Karl Beaubrun ("Beaubrun") filed his post trial brief on August 12, 2011. Eliamise filed her post trial brief on August 29, 2011. The matter was then taken under advisement.

At trial, testimony for Eliamise was given by Bruce Linsky ("Linsky") (attorney for Mortgage Master, Inc.), Eliamise, and Pierre Zamor ("Pierre") (husband of Eliamise). [Note 2] There were no witnesses for Beaubrun. There were seventeen exhibits submitted.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. By deed dated May 31, 2005, Milton H. Taylor, Jr. conveyed Locus to Tamara Zamor ("Tamara") for $249,900. The deed was recorded with the Essex County South District Registry of Deeds (the "Registry") at Book 24367, Page 4.

2. By deed dated August 3, 2007, Tamara conveyed Locus to herself and Eliamise, as joint tenants with rights of survivorship ("Deed 1"). [Note 3] This deed was recorded with the Registry on August 7, 2007, at Book 27085, Page 280. On the same day, Tamara and Eliamise executed a mortgage on Locus with Mortgage Master, Inc. (the "Mortgage") to secure a note in the amount of $257,500. Both Deed 1 and the Mortgage were notarized by Linsky. [Note 4]

3. By deed dated October 10, 2007, Tamara and Eliamise purportedly conveyed Locus to Tamara and Beaubrun, as joint tenants with the right of survivorship ("Deed 2"). This deed was recorded with the Registry on February 5, 2008, at Book 27500, Page 583. Deed 2 was notarized by Denise E. Hamel ("Hamel"). [Note 5]

4.Tamara died on January 20, 2008. The Death Certificate stated that Tamara's husband was Beaubrun and that her parents were Pierre Zamor and Eliamise (Eliamise did not have a last name listed on the death certificate). [Note 6]

5.Tamara and Beaubrun were in a dating relationship from 2005 until Tamara's death in 2008. They lived together at Locus. Eliamise also lived at Locus. Eliamise has contributed to the upkeep and maintenance of Locus.

6.A report from McCann Associates, Inc. (certified document & handwriting examiners) dated April 14, 2011 (the "McCann Report"), in comparing Eliamise's signature on Deed 2, the Mortgage, and nine provided signature samples stated "the authenticity of the questioned signature ... is inconclusive at this time," although the report also states "[t]he size, slant, style of execution and production of nearly all the letter forms contained within the [Mortgage] are not similar to the questioned signature on [Deed 2]." [Note 7]

7.On July 10, 2009 Beaubrun brought an eviction action against Eliamise in Haverhill District Court. Eliamise testified she first learned of Deed 2 during this eviction proceeding. Beaubrun dismissed the eviction case on the same day, July 10, 2009.

8.On September 3, 2009, Eliamise sought a restraining order against Beaubrun in Haverhill District Court (09-RO-0336). In that action, Hamel testified upon direct examination, with respect to the notarization of Deed 2, that she had lost her 2007 Notary log and had not made a copy of identification papers. She also testified that she did not remember the notarization of Deed 2. [Note 8]

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The central issue in this case is the validity of Deed 2. Eliamise argues that Deed 2 is not valid because her signature was forged, thus never delivered. Beaubrun argues that Deed 2 is valid.

Forgery

There are two elements to forgery: 1) the falsification, alteration, or addition to a written instrument, and 2) a purpose to deceive or defraud. Commonwealth v. Baldwin, 77 Mass. 197 , 198 (1858). "The writing falsely made must purport to be the writing of another party than the person making it." Id. However, the entire document need not be forged; forgery includes the fraudulent insertion of words. Commonwealth v. Boutwell, 129 Mass. 124 , 124 (1880). The intent to defraud may be inferred from circumstances, and the intent to injure or defraud does not need to be directed at a particular person. Commonwealth v. O'Connell, 438 Mass. 658 , 664 (2001). Additionally, "where signatures ... have been admitted in evidence as genuine ... they may be used as a standard against which ... [to] compare the disputed signature and decide the question of authorship without the need for expert testimony." O'Connell, 438 Mass. at 662; Levi v. Rubin, 241 Mass. 40 , 41 (1922); see Commonwealth v. O'Brien, 254 Mass. 86 , 90 (1925). [Note 9]

Deed 2 was executed in October 2007 but not recorded until February of 2008, one month after Tamara died. Eliamise first became aware of Deed 2 in July 2009 during an eviction proceeding brought by Beaubrun. Eliamise testified that she never executed Deed 2 and that she does not know how to read or write; whenever she executes a document, she does it with the help of someone else guiding her hand, which could indicate that her signature might look different on different documents. The notary public Hamel testified at the district court proceeding that Eliamise presented a Massachusetts drivers license as her form of identification when she signed Deed 2; she also testified she had lost record of the transaction and does not remember the transaction. Eliamise testified at this trial that she has never been issued a drivers license because she is unable to read or write; Eliamise presented a green card when she signed Deed 1. Eliamise also testified that Tamara never told her that Tamara had executed Deed 2. Linsky testified that he prepared Deed 2 and mailed it to Tamara, but never saw it executed. [Note 10] Beaubrun did not testify. It appears that the undisputed evidence is that Eliamise never executed Deed 2. [Note 11] Furthermore, Eliamise only became aware of Deed 2 during eviction proceedings in which Beaubrun tried to remove her from Locus, evidence that Beauburn intended the altered document to injure her. Case law indicates the trier of fact can draw his own inferences as to whether the signature was forged (See O'Connell, supra) and based on writing samples submitted without objection, I find that the deed was forged.

Acknowledgment and Delivery of Deeds

A deed must be acknowledged before a notary public or justice of the peace prior to its recording. G.L. c. 183 § 29 (2011). An acknowledgment is a formal statement that the instrument's execution was made by the signer's own free act and deed. McOuatt v. McOuatt, 320 Mass. 410 , 413 (1946). However, the acknowledgment only entitles the deed to be recorded and "is not conclusive proof of its execution." O'Neil v. Webster, 150 Mass. 572 , 573 (1890). A copy of a deed from the registry is competent but not conclusive proof of its validity. Id.

However, delivery of a deed is essential to its validity, and a deed becomes effective only at the time of its delivery. See Lexington v. Ryder, 296 Mass. 566 , 568 (1937); Eno & Hovey, Real Estate Law § 4:47 (1995). Delivery occurs when the grantor intends the deed to effect a present transfer of the property conveyed, and the grantee assents to the conveyance. See Frankowich v. Szczuka, 321 Mass. 75 , 77 (1947). "The date shown on the deed ... is prima facie evidence of the date of delivery." Graves v. Hutchinson, 39 Mass. App. Ct. 634 , 640 (1996). "[T]hat presumption may be overcome ... by evidence of extrinsic facts or circumstances." Id.

The deed conveying Locus from Tamara and Eliamise to Tamara and Beaubrun is dated October 10, 2007. The extrinsic facts and circumstances surrounding the conveyance are the following: Eliamise's claim that Deed 2 is forged; the notary was unable to locate her 2007 log and as a result had no record of notarizing Deed 2; the notary had no recollection of the circumstances surrounding the signing of Deed 2; the notary was unable to be located as a witness for this proceeding; Deed 2 states Eliamise presented a Massachusetts driver's license as her form of identification but she has never been issued a driver's license; and Eliamise states she did not convey Locus to Beaubrun. I have found that Eliamise's name was forged on Deed 2. As a result, she did not intend to convey the property to Beaubrun. Because there was no intent to presently convey the property from Tamara and Eliamise to Tamara and Beaubrun, I find that Deed 2 was not delivered.

As a result of the foregoing, I find that Deed 2 is not a valid deed. Deed 1 remains the valid deed of record. When Tamara died, Eliamise took valid title to Locus by right of survivorship.

Judgment to enter accordingly.

By the court.