REG 15345-S

May 7, 1980

Randall, C. J.


Petitioner, having acquired by a sheriff's deed dated August 19, 1975 the partial interest of Daniel DeVasto in a parcel of land on Washington Street in Canton described in Certificate of Title 92029, prays that a memorandum of an attachment against Daniel DeVasto's interest recorded May 2, 1978 be stricken from the aforesaid certificate of title.

Respondent Paul Scanlon denies that petitioner acquired good title by the sheriff's deed and says that "petitioner sued Daniel DeVasto individually [for goods sold and delivered to Canton Public Market, Inc.] thereafter DeVasto defaulted and the petitioner sought to execute a default judgment against the real property interests of Daniel DeVasto. As such, said default and execution creates a fraud upon other creditors of Canton Public Market, Inc., including the respondent herein." Respondent prays that the petition be denied.

Respondent Daniel DeVasto answered admitting all of the allegations in the petition and further saying that at no time did he have any intention to defraud creditors of the Canton Public Market, an entity unknown to him.

Respondent Arthur DeVasto answered admitting all of the allegations in the petition. He further says that $4,800.00 due him from a sale of the locus is being held in escrow pending the striking of the memorandum of attachment from certificate of title 92029. He prays that the memorandum of attachment be stricken and that an order be entered directing James R. Kelly, Esq., 102 Main Street, Mansfield "to pay over to Arthur DeVasto the sum of $4,800.00 plus interest held by him in escrow from July 20, 1978 as attorney for the Canton Institution for Savings."

A hearing was held on the matter December 21, 1979 and January 10, 1980. Four witnesses testified. Three exhibits were introduced and are incorporated herein for the purpose of any appeal.

From all of the evidence the Court finds the facts to be as follows:

1. Certificate of Title 92029 describing the land and buildings located on Washington Street in Canton, stands in the name of Arthur J. DeVasto, Daniel DeVasto and Joseph Lombardi.

2. Daniel DeVasto operated a retail grocery store and market called the "Canton Public Market" on the premises for many years.

3. On June 23, 1955 Canton Public Market, Inc. was incorporated with Daniel DeVasto, Arthur DeVasto and Frank DeVasto being members of the Board of Directors. Only Daniel DeVasto took an active part in managing the store business.

4. Petitioner James Ferrera and Sons, Inc. were wholesale provisioners and supplied the Canton Public Market, Inc. doing business with Daniel DeVasto for several years.

5. On October 11, 1974 Petitioner James Ferrera and Sons, Inc. obtained a judgment by default in the Boston Municipal Court against Daniel DeVasto individually.

6. On December 9, 1974 an execution was issued thereon and the sheriff of Norfolk County seized all of Daniel DeVasto's interest in the land described in certificate of title 92029 held by him on September 10, 1974, the date the land was attached (Ex. 1).

7. On August 19, 1975 after notice of the time and place of the sale had been advertised, the land was sold by the sheriff at public auction to Petitioner James Ferrera and Sons, Inc. for the sum of $1,949.00 and a sheriff's deed to Petitioner was duly recorded August 27, 1975 as Document No. 353235 noted on Certificate of Title No. 92029 at the Registry District of Norfolk County (Ex. 1).

8. In May 1978, before a new certificate of title had been issued to Petitioner James Ferrera and Sons, Inc., Paul Scanlon was issued an attachment in the amount of $4,800.00, against the goods and estate of Daniel DeVasto on a complaint filed in Norfolk District Court to collect on a note signed by Daniel C. DeVasto to respondent Paul F. Scanlon on March 21, 1961 for $3,000 dollars. (Ex. 3).

9. On May 2, 1978 a copy of the said attachment was filed as Document No. 379783 and a memorandum thereof noted on certificate of title 92029, at the Norfolk Registry District. (Ex. C attached to petition).

The question to be decided is whether or not this memorandum of attachment of Respondent Scanlon should be stricken from the certificate of title 92029.

The sheriff's deed (Ex. 1) was issued to petitioner on August 19, 1975 and recorded in the Norfolk Registry District on August 27, 1975 as document 353235. Under the provisions of G. L. c. 236, Section 33, DeVasto had a right to redeem for one year after the sale of the property. The one year expired August 19, 1976.

Respondent Scanlon seeks to have this Court upset the 1974 judgment of the Boston Municipal Court obtained against Daniel DeVasto and to set aside the subsequent sheriff's sale of DeVasto's interest in the locus to petitioner. This is sought to be done on the theory that the default judgment was obtained against Daniel DeVasto personally for what was a corporate obligation. He claims that to allow petitioner to collect on his judgment is a fraud upon the other creditors of Canton Public Market, Inc. But the validity of the judgment of the Boston Municipal Court, which had jurisdiction of the cause and parties in the earlier case, cannot be attacked or impeached by the parties to this collateral proceeding. See Savage v. Welch, 246 Mass. 170 , 176 (1923). "The entry of [that] judgment imports a determination that no cause exists which makes the entry improper. This determination cannot be contradicted nor its propriety questioned except by exception, report or appeal in the same case or by new proceedings for the purpose of vacating judgment, or by writ of error...." Bremner v. Hester, 258 Mass. 425 , 426 (1927). The Court refused to admit evidence to go behind the judgment of the Boston Municipal Court. It will not upset this judgment.

Respondent Scanlon obtained and recorded his attachment against the real interests of Daniel DeVasto long after DeVasto's right to redeem the locus after the sheriff's sale had expired. G. L. c. 236, ยง33. DeVasto then had no interest in the locus which Respondent Scanlon could attach.

The Court orders that the notation of the attachment filed as Document No. 379783 in the Norfolk County Registry of Deeds be stricken from Certificate of Title 92029 and a new certificate of title be issued to reflect the ownership by James Ferrera and Sons, Inc. of the right, title, and interest in the locus formerly held by Daniel DeVasto.

Respondent Arthur DeVasto seeks the Court to direct payment to him of certain funds held in escrow, plus accrued interest thereon, from a sale of his interest in the locus apparently held July 20, 1978. The details of this sale of the locus are unclear from the evidence, but apparently funds due Arthur DeVasto were held in escrow pending the striking of the Scanlon attachment on certificate of title 92029. The Court presumes that once the memorandum of attachment is stricken Respondent Arthur DeVasto can then perfect his right to payment of the funds held in escrow. Accordingly the Court sees no reason to issue an order directing such payment.

Decree accordingly.