MISC 65762

June 30, 1975

Norfolk, ss.

Sullivan, J


This is a Writ of Entry brought by John D. Simeone, of Walpole in the County of Norfolk (the "demandant") against Judith F. Cyr and Brenda Eakers, both of Foxborough in said County (the "tenants" to recover an estate in land in said Foxborough claimed by the demandant from which he allegedly had been disseized by the tenants. At a hearing on a motion made by the tenants to dismiss the writ an agreement of counsel was made in open court that a decision be made by this Court on the pleadings and on the instruments recorded in the Norfolk Registry of Deeds and submitted to the Court which relate to the property described in the writ. On all the evidence I find the following facts:

On July 14, 1969 an action of contract was brought by Domenic E. Morganti against Donald E. Cyr (husband, or former husband, of one of the tenants) in the District Court of Western Norfolk; thereafter on July 22, 1969 an attachment of the property of said Donald E. Cyr in said district court proceedings was filed for record with said Deeds in Book 4607, Page 392; by deed dated July 21, 1969, but not recorded until after said attachment) on July 24, 1969, in Book 4607, Page 702, Donald E. Cyr and Judith F. Cyr conveyed the premises described in the writ of entry to Brenda Eakers; on July 10, 1970 judgment for the plaintiff Morganti was entered in said action of contract brought by him against Donald E. Cyr; on August 27, 1970 a writ of execution was issued by the District Court of Western Norfolk which execution was recorded on September 4 of said year with said Deeds in Book 4686, Page 399; and on November 30, 1971 the sheriff sold the premises pursuant to the execution to the demandant, the deed being recorded with said Deeds in Book 4802, Page 331.

The sole issue in the case is whether the execution relates back to the recording of the attachment so that the sale by virtue of said execution takes precedence over the intervening conveyance from Mr. and Mrs. Cyr to Ms. Eakers.

G. L. (Ter.Ed.) c. 223, §59, as amended, [Note 1] provides that "property which has been attached in conjunction with an action in the district court shall be held for thirty days after final judgment for the plaintiff or claimant so that it may be taken on execution, unless the attachment is sooner dissolved." Section 4 of Chapter 236 of the General Laws further provides "If land was attached on mesne process, a copy of the execution with a memorandum as aforesaid shall be deposited by the officer in the registry of deeds for the county or district where the land lies, within forty days after the judgment in the action, and the attachment shall become void forty days after said judgment unless the copy is so deposited."

There seems to be some inconsistency between the provisions of Section 59 and Section 4 as to the length of time during which an attachment remains effective so that the execution in the action relates back to the time of filing the attachment for record rather than from the time the execution itself is so filed. In any event the period of relation back expires no later than forty days after the judgment. In the present proceedings the judgment was entered on July 10, 1970 and the execution was not filed for record until September 4, 1970, a period well after the forty days provided by the applicable section of Chapter 236. I therefore find that the attachment made by Domenic E. Morganti against Donald E. Cyr became void forty days after judgment was entered by the district court; that on August 27, 1970 when the execution was issued and on September 4 when it was recorded with said Deeds, Donald E. Cyr no longer had any interest of record in the premises; and that the tenants have not disseized the demandant.

Judgment accordingly.


[Note 1] Section 59 was most recently amended in respects not material to district court proceedings by St. 1973, c. 1114, §102.