JOSEPH E. WHITE v. LOUISE DESTEFANO.

There is of record in the Middlesex North District Registry of Deeds in Book 2081, Page 671, a purported deed dated August 9, 1973 from Joseph E. White, the plaintiff, to Joseph DeStefano, the grantor's uncle, now deceased, conveying certain land, with the buildings thereon, situated on Nabnassett Lake in Westford, in the County of Middlesex. The plaintiff claims that he purchased the property with his own funds and those borrowed from other relatives, that he never executed and delivered a deed thereto, that he may have signed at his uncle's request a blank paper which subsequently was completed as a deed by others, and that the deed in question is a fraudulent instrument. The plaintiff prays that this Court adjudicate the title to the property. A temporary restraining order was issued on June 9, 1978 which prohibited the defendant "from entering, occupying, transferring, selling or taking any action regarding ••• 13 Moore Place in ••• Westford."

A trial was held at the Land Court on October 26, October 27 and October 30, 1978 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The property in question was purchased in 1968 from the devisees named in the will of Eva E. Hanson. Possession of the premises was delivered as of June 1, but papers were not in fact passed until August 9 (Exhibit No. 28E). The deed dated June 24, 1968 from Harold W. Hanson, et al. to Joseph E. White was recorded on August 16, 1968 in Book 1854, Page 694.

2. The decedent, Joseph DeStefano, learned of the availability of the premises from his brother-in-law, Clarence Borden, who had a residence across the lake and subsequently brought the premises to the plaintiff's attention. The plaintiff testified that at this time he did not even know where Westford was located.

3. In 1968 and continuing to the present the plaintiff was, and is, a captain in the Revere fire department. His uncle and godfather was a Revere entertainment entrepreneur and over the years owned or had an interest in various establishments in that city. From the time he was a youngster, the plaintiff worked for him, and it is unclear whether he was paid for the full value of his services. The plaintiff frequently made out checks for his uncle which the latter then signed. In turn the plaintiff customarily signed instruments at his uncle's behest without explanation as to what they might be.

4. The evidence did not establish whose funds were used to purchase the cottage from the Hanson family. The receipt for a deposit in the amount of $1,000 ran to the plaintiff (Exhibit No. 3), but the closing statement prepared by Robert Sheinfeld, attorney for Joseph DeStefano, who is also deceased, indicates that the total deposit was $3,000 (Exhibit No. 28D). The plaintiff testified that he furnished the balance of the purchase price by borrowing $2,000 each from his son and his brother-in-law with the remainder coming from his own funds. Sheinfeld's files refer to two checks of $4,000 and $2,500 which with a $3,000 deposit constituted the purchase price of $9,500 (Exhibit No. 28D). Neither the purchase and sale agreement nor the cancelled checks were introduced into evidence. The only documentary evidence as to the source of the funds was the receipt for $1,000, but this proves only that the deposit was delivered by or on behalf of the plaintiff.

5. In the summer of 1968 the plaintiff renovated the cottage, and thereafter he and his family consistently used the property during the summer months. If his uncle wished to use the cottage or to have friends do so, he let his nephew know, and the Whites stayed home.

6. From the beginning the uncle paid the real estate tax bills on the property, and he apparently also generally paid the fire insurance premiums. While there is some problem in tying utility bills introduced by the plaintiff with the location to which the services relate, it would seem that the plaintiff paid the charges for electricity, water and telephone furnished to the cottage. He joined the Nabnassett Lake Shores Improvement Association (Exhibit No. 8) and was issued a fire arms permit as a resident (Exhibit No. 7). He treated the property as his own, was considered by the neighbors to be the owner, and his uncle not only concurred in this result but furthered the impression of the plaintiff's ownership.

7. In 1971 Joseph DeStefano's first wife died, and in February, 1973 he married the defendant. On August 22, 1973 Exhibit No. 13 was filed for record. There is no evidence of the actual mechanics of the recording, i.e., by whom it was mailed to the Registry of Deeds or alternatively by whom it was presented at the counter, but the reverse side of the instrument does bear the return mailing address printed in ink of the decedent at 53 Goodwin Avenue in Revere. The signature of the grantor admittedly is that of the plaintiff although there is no explan- ation for what appears to be a second "J" preceding the signature and obviously written by a different hand. The plaintiff contends that he never signed an instrument which had been fully typed as a deed nor did he acknowledge the instrument. It seems clear from the evidence that the deed originally was dated August 9, 1968, the date of the closing, that the date of both the deed and the acknowledgment was changed by a notary public, presumably to conform to the date on which he completed the Certificate of Acknowledgment. The notary testified that the decedent came to his office in an effort to see his then attorney, Russell L. Mahony, as Mr. Sheinfeld had died, that because Mahony was out, DeStefano asked the witness to take the acknowledgment of the plaintiff, that the witness saw someone sitting in the waiting room whom he never identified at the trial as the plaintiff and to whom he did not pose the question as to whether Exhibit No. 13 was the grantor's free act and deed. The acknowledgment therefore was invalid.

8. In addition to Exhibit No. 13, a copy thereof bearing the plaintiff's signature, dated August 9, 1968 and without a completed acknowledgment was introduced as Exhibit No. 14. Also introduced were Exhibits No. 13A and 14A in which counsel for the plaintiff marked in ink similarities between Exhibits No. 13 and 14. Exhibit No. 14 was typed by Rosalind Burnett, who was a witness at the trial and who was able to identify the typewriting as her work. At the time of the trial she was secretary to Mr. Mahony, but in 1968 when I find the deed was drawn, she was Mr. Sheinfeld's secretary. Mrs. Burnett brought with her an office folder of Mr. Sheinfeld's which had been in her custody and that of Mr. Mahony and on which Sheinfeld had written "DeStefano from Hanson." In the file on the reverse side of an old check, Sheinfeld had made a memorandum "Make Deed Joe White to Joseph DeStefano" (Exhibit No. 28C). The witness testified that if Mr. Sheinfeld asked her to draft a deed, she would get the forms and prepare a deed from a previous instrument. The witness had no specific recollection of typing the instrument in question, but she was able to identify her work from certain peculiarities in her style. She did not remember ever having been asked to complete a blank deed form to which a signature had already been affixed, but when asked if she would have typed a deed under such circumstances, she replied, "I probably would if I were asked to do it, but I have no memory of ever having done it."

9. Joseph DeStefano died on March 13, 1977, his will was allowed on June 2, 1978, and the defendant was appointed executrix (Exhibit No. 31). In the will the locus was specifically devised as follows:

16. My real estate at 31 Moore Place [sic), Westford, to my dear wife, Louise DeStefano, but it is my wish that she make provision that upon her death, it passes to my nephew, Joseph White.

(Exhibit No. 32).

The complaint in the present proceeding was filed on June 9, 1978. The defendant argues that the infirmities in the deed are immaterial since DeStefano paid the consideration for the purchase of the cottage and that therefore it was held by the plaintiff on a resulting trust for his uncle. He and his successor in interest then would have been entitled to a conveyance of the title from the plaintiff, the trustee. See Aronian v. Asadoorian, 315 Mass. 274 , 275 (1943).

"A resulting trust is created by operation of law and arises when the purchase money for property is paid by one and the legal title is taken in the name of another." Liberty Trust Co. v. Hayes, 244 Mass. 251 , 254 (1923); accord, Meskell v. Meskell, 355 Mass. 148 , 150-51 (1969); Williams v. Commercial Trust Co., 276 Mass. 508 , 517-18 (1931); Brady v. Brady, 238 Mass. 302 , 304-05 (1921); McDonough v. O'Niel, 113 Mass. 92 , 95-96 (1873). The fact that the named grantee actually tenders the purchase price to the grantor is immaterial when the money belonged to the person for whom a resulting trust is imposed. Brady v. Brady, supra at 304- 05.

While a natural inference based on the facts which I have found is that the purchase price was paid by the decedent and that therefore the doctrine of resulting trust is applicable, the evidence which was introduced fell short of establishing who in fact paid the purchase price. There was no documentary evidence of this, and there was no identification in Mr. Sheinfeld's records regarding the checks which were used to complete the transaction with the Hanson family. Therefore, I find and rule that no resulting trust has been shown.

However, despite the fact that no such trust was established, it cannot be doubted from the evidence that it was Mr. DeStefano who found the property, who arranged for its purchase, whose lawyer handled the transaction, who was the moving force behind the acquisition, and who had the resources to acquire it. It is a common occurrence for persons situated as was the decedent to take title to real properties in the name of a straw. On all the evidence I find and rule that such was the case here and that title ran to the plaintiff as nominee for the decedent. It is, of course, arguable that Mr. DeStefano intended to make a gift to his nephew of whom he unquestionably was very fond. The constant use of the premises by the plaintiff and his family certainly is some indication of a gift from the godfather to his favorite nephew-godson, but the evidence as a whole does not compel this conclusion. One claiming by way of gift

must demonstrate a settled donative intent on the part of the donor, together with an actual or symbolic delivery of the subject matter of the gift to him or to someone in his behalf in such manner as completely to transfer the dominion and control of it.

Silverman v. A. & L. Heel Corp., 353 Mass. 108 , 110 (1967). Intent is determined at the time of the transfer and the property must be placed beyond the donor's recall. Robinson v. Robinson, 366 Mass. 582 , 586 (1974); Kobrosky v. Crystal, 332 Mass. 452 , 460 (1955); Iantosca v. Iantosca, 324 Mass. 316 , 322-23 (1949); Monaghan v. Monaghan, 320 Mass. 367 , 369-70 (1946). The rule that '"when the person paying the consideration for real estate is under a natural or legal obligation to provide for the person who takes the title, there is a presumption of a gift and no presumption of a resulting trust,'" Dwyer v. Dwyer, 275 Mass. 490 , 494 (1931), quoting Edgerly v. Edgerly, 112 Mass. 175 (1873), is inoperative here.

The specific devise of the property in the DeStefano will is inconsistent with a gift theretofore completed from uncle and nephew. While it is arguable that the gift was made on the acquisition of the cottage in 1968 and revocation was subsequently attempted by Mr. DeStefano after his second marriage, I do not so find. The alacrity with which any request by the uncle to use the cottage was fulfilled may only have been the natural result of deference to one's benefactor, but it seems more likely that it was a recognition of the uncle's superior claim to the cottage on the occasions he chose to exercise his prerogative. Finally, there is the deed from the plaintiff to his uncle, Exhibits No. 13 and 14. I have found that the deed was not validly acknowledged. However, on all the evidence I do find that the deed was signed by the plaintiff at the time title was taken in his name in August of 1968, that the deed was not signed in blank and that the form had been completed by Mr. Sheinfeld's secretary prior to signature.

It follows from the pattern here that as the dominant force in both the relationship with the plaintiff and in the family's financial resources, Mr. DeStefano might prefer to take title in his nephew's name but as a matter of prudence would at the same time obtain a deed back from his straw to be filed for record at the appropriate time. I conclude that this is what happened. Since, however, the deed was not validly acknowledged, it is not entitled to record. As between the parties, however, the deed, even though not properly acknowledged, was good. The plaintiff failed to prove any fraud in its execution or delivery.

A deed executed and delivered is sufficient to convey land and is good against the grantor, his heirs and devisees, and persons having actual notice thereof. G.L. c. 183, §§1 and 4; see Dole v. Thurlow, 12 Met. 157 , 162-63 (1846). Neither acknowledgment nor recording is essential to a valid conveyance, and an acknowledgment is merely a prerequisite to recording. Jacobs v. Jacobs, 321 Mass. 350 , 350-51 (1947); Aronian v. Asadoorian, supra at 276. As was said in McOuatt v. McOuatt, 320 Mass. 410 (1946), at pages 413-14:

The certificate of acknowledgment furnishes formal proof of the authenticity of the execution of the instrument when presented for recording. The certificate of acknowledgment is of evidentiary character, and the taking of the acknowledgment has always been regarded in this Commonwealth as a ministerial and not as a judicial act and the recitals contained in the certificate may be contradicted ....

It follows that ordinarily an acknowledgment is not an essential part ofa deed; but if it is desired to record the deed in order to charge the world with notice of the conveyance, then it is necessary that the deed be acknowledged and that a certificate reciting this fact be attached to the deed. Doubtless, that is the principal function of a certificate of acknowledgment.

Since this case involves no bona fide purchaser for value, the deed would be valid between the parties herein.

The date in the deed was changed by the notary public, but such a change is not material. The date in any event may be contradicted by other recitals in the deed or by extrinsic facts and circumstances. Lexington v. Ryder, 296 Mass. 566 , 568 (1937); Dresel v. Jordan, 104 Mass. 407 , 417 (1870). Testimony at the trial was to the effect that the typewriter on which the deed was typed was removed after Mr. Sheinfeld's death in 1972. I conclude that the deed was prepared and executed at or very close to the August 9, 1968 closing. The plaintiff denies that he delivered the deed, and there was no direct evidence that he did so. Recording a deed is, by statute, "conclusive evidence" of delivery in favor of purchasers for value without notice (see G.L. c. 183, §5), but there are no such persons in the present case. Nonetheless, when the facts are viewed in the perspective which I have taken, it seems inescapable that at his uncle's request the plaintiff signed Exhibit No. 14 and delivered it to his uncle directly or to Mr. Sheinfeld. Whether there has been a delivery of a deed is ordinarily a question of fact. "The factors essential to delivery are that the grantor intend the deed to effect a present transfer of the property and that the grantee by his conduct assent to the conveyance." Frankowich v. Szczuka, 321 Mass. 75 , 77 (1947). Merely handing the deed to the grantee without the requisite intent is insufficient to constitute a legal delivery. Tewksbury v. Tewksbury, 222 Mass. 595 , 597 (1916); Bianco v. Lay, 313 Mass. 444 , 447-48 (1943); Sullivan v. Hudgins, 303 Mass. 442 , 447 (1939). At the time the events transpired the plaintiff had the requisite intent, but as events unfolded, doubtless the plaintiff regretted the execution of the deed if he even remembered it.

The plaintiff further asserts that this Court should impose a constructive trust to remedy the fraud and breach of trust practiced by DeStefano. A constructive trust is imposed

in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was obtained by fraud or in violation of a fiduciary relation or where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information.

Barry v. Covich, 332 Mass. 338 , 342-43 (1955); accord, Kelly v. Kelly, 358 Mass. 154 , 156 (1970); Meskell v. Meskell, supra at 151; Coelho v. Coelho, 2 Mass. App. Ct. 433 , 435 (1974). The fraud necessary to create a constructive trust must occur at the time the property was transferred. Meskell v. Meskell, supra at 151. Thus the plaintiff must prove that he had been induced by his uncle to sign the deed form in blank and that his uncle had the material parts typed in later thus effecting a transfer to himself. The plaintiff has not sustained this burden.

Although the plaintiff has attempted to establish that the relationship of nephew and uncle was more like one of father and son, and that he reposed confidence in the uncle, "'[m]ere respect for the judgment of another or trust in his character is not enough to constitute ... a [confidential] relation.'" Meskell v. Meskell, supra at 151-52, quoting Comstock v. Livingston, 210 Mass. 581 , 584 (1912). Furthermore, under Massachusetts decisions, the mere existence of a family relationship has been held an insufficient basis for impressing a constructive trust. Samia v. Central Oil Co., 339 Mass. 101 , 112 (1959).

The defendant has sought damages in a counterclaim set forth in her answer for the occupation of the premises by the plaintiff and the exclusion of the defendant. No damages are awarded since the question as to title was not settled until this decision was rendered. The defendant also argues that the plaintiff's complaint is barred by the statute of limitations and laches. I find other wise.

It would seem unfair to the parties to conclude without a reference to the proper procedure to be followed to cure the problems occasioned by the invalid acknowledgment. The remedy would seem to be found in the applicable provisions of Chapter 183 of the General Laws.

The plaintiff requested that this Court consider and grant forty-seven requests for findings of fact. The Court makes the findings requested in paragraphs 5, 6, 13, 14 (with the correction of the word "renewed" to "obtained"), 17, 22, 23, 24, 25, 27, 28, 29, 31, 33, 36, 42 and 43,and denies those in paragraphs 1, 2, 8 to 12 inclusive, 15, 16, 18 to 21 inclusive, 26, 30, 32, 34, 35, 37, 38, 39, 40, 41, 44 to 47 inclusive. As to paragraph 3 I find that the plaintiff was the nominal purchaser only and acted as a straw for his uncle; I therefore deny this request. I read paragraphs 4 and 5 together and grant them only if they are so joined. It is unclear whether Robert Sheinfeld physically was present at the "passing", but I find he represented the buyer from the Hanson Estate.

The Court grants the plaintiff's requests for rulings of law numbers 2, 3, 5, 7, 8, 10, 12 to 15 inclusive, 17, 18, 19, 21 to 27 inclusive, and denies numbers 1, 4, 6, 9, 11, 16 and 20 (the latter being an incomplete statement).

Finally, the Court grants the defendant's requests for rulings of law numbers 1 to 15 inclusive, 18 and 19 and denies numbers 8, 16, 17, 20 and 21.

Judgment accordingly.