REG 5711-S

May 22, 1978

Randall, J.


This matter comes before the Court on plaintiff's complaint to have certificate of title No. 149066 standing in the name of Carl F. D'Elia revived and reinstated and to have certificates of title 85653, 85654 and 94514 revoked.

A hearing was held on May 4, 1978. The parties presented no witnesses or evidence but agreed to have the matter decided by this Court on the basis of the pleadings and exhibits attached thereto plus the stipulations entered into during the course of the hearing. Briefs were submitted by plaintiff bank and by defendant Rosaria D'Elia.

The background to the dispute follows. The defendants Guisseppe D'Elia and Rosaria D'Elia, formerly husband and wife, owned the premises at 166 Russell street, Woburn, Massachusetts (hereafter referred to as locus) as described in Land Court Certificates of title numbered 85653, 85654 and 94514. Apparently some marital disharmony developed which culminated in a divorce decree. The probate court, by warrant dated November 4, 1975, appointed two commissioners to partition locus between defendants Guisseppie and Rosaria by sale. (Exhibit A). The partition warrant directed that the sale be at private sale for a sum of eighty thousand dollars or more or at public auction. Pursuant to this warrant, the premises were sold at public auction to Carl F. D'Elia for $15,500 on April 29, 1976. On June 8, 1976 the commissioners conveyed the property by their deed to defendant Carl F. D'Elia. At the same time plaintiff took a mortgage on said premises for $21,OOO. The Land Court then issued Certificate of Title No. 149066 covering the premises to Carl F. D'Elia. Noted on the certificate in accordance with the mandate of G. L. c. 185, §92 were the words "This certificate is entered in pursuance of Partition Proceedings, Chapter 185, Section 92." Noted on the encumbrance sheet of said certificate was the plaintiff's mortgage.

After the sale was completed, the commissioners, pursuant to the warrant, submitted their report and account to the probate court. A hearing was held before the probate judge on whether the commissioner's report and account should be allowed. The plaintiff, while it had entered an appearance in the probate court proceedings, received no notice of the hearing and did not appear thereat. (Defendant Rosaria D’Elia agreed at the present hearing before the Land Court that the plaintiff had not received notice of the probate court hearing and did not participate therein). By decree dated January 5, 1977 the probate judge ruled that

"The foregoing report and account having been examined and considered, it is decreed that the same not be accepted and the partition not be confirmed and established." (Exhibit A).

No appeal was taken from this decree.

On July 14, 1977 defendant Rosaria D’Elia petitioned the Land Court to cancel certificate of title no. 149066 (in the name of Carl D'Elia) and to reinstate certificates of title nos. 85653, 85654 and 94514 in the names of Rosaria & and Giuseppe D'Elia. (Exhibit B). This petition was allowed on July 19, 1977. (Exhibit C). No notice of this Land Court proceeding was given to the plaintiff bank even though its mortgage stood as an encumbrance upon the certificate to be cancelled, no. 149066. Thus, the plaintiff's mortgage does not now appear as a lien on the premises according to the presently outstanding certificates of title, 85653, 85654, 94514.

The plaintiff then brought this proceeding to have the Court revoke its order of July 19, 1977 and to reinstate certificate of title no. 149066 in the name of Carl F. D'Elia.

At the hearing on this matter, plaintiff argued that defendant Rosaria D'Elia's Land Court petition 5711-S of July 14, 1977 contained a misstatement which may have influenced the Court's decision to cancel certificate of title no. 149066. In such a posture, this action might be analogous to a motion under Mass. R. Civ. P. 60b(3) to set aside a judgment. (The Rules of Civil Procedure do not apply to matters within the exclusive jurisdiction with one exception not material here. Mass. R. Civ. P. 1). The misstatement of which plaintiff complains is contained in paragraph 4 of Rosaria D'Elia's complaint. (Exhibit B). It states in material part that the "Commissioner's sale on Partition...was disallowed by (a judge of) the Middlesex Probate Court on January 5, 1977." (emphasis supplied). The plaintiff argues this characterization that the sale was disallowed is incorrect as the probate decree merely states that the commissioner's report not be accepted and the partition not be confirmed and established. It appears to the Court that the probate judge intended, by his decree, to void the partition sale. Thus the defendant's characterization of the decree as a disallowance of the sale is not misleading. In any event, attached to Rosaria D'Elia's complaint in the Land Court was a certified copy of the probate court decision, and so the Land Court was not mislead.

The Court now turns to plaintiff's request for relief and concludes it is powerless to effectuate it. This is because the Land Court's function in issuing certificates of title in partition proceedings is largely ministerial. G. L. c. 185, §92 directs the Land Court to issue a certificate of title to the purchaser at a sale pursuant to a partition proceeding upon the purchaser's "presenting the deed of the commissioners for registration." However, the certificate must "contain a reference to the final decree of partition." The purpose of this notation is to put interested persons on notice of the probate proceedings. The certificate thus issued is conclusive as to title "to the same extent and against the same persons as (the probate) decree is made conclusive by the laws applicable thereto." Thus, Land Court action under G. L. c. 185, §92 is controlled by and contingent upon the probate proceedings. Conversely, it follows that once the probate court has disallowed the partition sale, the purchaser is no longer entitled to a certificate of title. Hence, the court cannot reinstate certificate of title number 149066.

Conceding for the purpose of this decision that the plaintiff should have been given notice and an opportunity to be heard on defendant Rosaria D'Elia's petition in the Land court to cancel certificate of title no. 149066 (issued in the name of Carl D'Elia) and to reinstate certificates in the names of Rosaria and Gilisseppe, the court does not see that the outcome would have been different. No action of the probate court of which the Court is aware has occurred since the Land Court's decree of July 19, 1977. Hence the issue now is the same as it was on July 19, 1977 and the Court's ministerial function remains unaffected.

Much of the parties argument before the Land Court and in their briefs centers on whether the Probate Court judge had the authority to enter his order of January 5, 1977 that the "partition not be confirmed and established." However, the Land Court cannot sit in judgment upon the propriety of the probate court's action; it is bound by that court's decree. If the probate judge erred, the remedy was appeal. The plaintiff cannot collaterally attack that judgment here. Cf., Bell v. Eames, 310 Mass. 642 (1942).

The Court is not convinced by plaintiff's argument that as it was not a party to the probate proceedings it had no remedy before the probate court. Plaintiff was on notice of the partition proceedings by virtue of the notification under G. L. c. 185, §92 on certificate of title no. 149066. While plaintiff may not technically have been a party to the partition proceedings under c. 241, §6, it appears plaintiff may have had a right to intervene under the last sentence of c. 241, §6 or under Mass. R. Civ. P. 24(a). But be that as it may, the short answer to plaintiff's predicament may be that it acted at its peril in granting an unconditional mortgage before the commissioner's report was accepted and the partition sale confirmed by the probate court.

However, the state of affairs at the present moment merits consideration. The defendants Guisseppe and Rosaria D’Elia have three certificates of title in their names as tenants common, and not encumbered by a mortgage to the plaintiff bank as was the case prior to the partition proceeding. The plaintiff bank has a note for $21,000 from defendant Carl D'Elia but without any mortgage to secure it, since the sale to defendant Carl D'Elia was set aside by the probate court. The commissioners appointed by the probate court are still holding $15,500 paid to them by Carl D'Elia, this being part of the money he borrowed from the plaintiff bank. Most of the balance of the funds so borrowed have been invested in the premises according to the said Carl D'Elia. It is patently unfair to leave the situation in limbo; it should be resolved. The place to resolve it is in the probate court where the partition proceedings are still pending and where presumably the commissioners have filed a bond.

The Land Court thus will forbid the registration of all voluntary instruments affecting the three certificates of title until such time as the matter is resolved in the probate court. Upon a subsequent petition filed after such resolution the Land Court will order a new certificate of title to be issued, subject, of course, to such encumbrances as are designated by the probate court.

Judgment accordingly.