REG 245-S

May 7, 1980

Randall, C. J.


This is a petition to amend Certificate of Title 83050 by expunging therefrom a reference to a mortgage in favor of Joseph F. Antanelis listed on the memoranda of encumbrances on the land described on the certificate.

The Respondent filed an answer denying that the note for $3,500.00 secured by the mortgage has been paid. She seeks to have petitioner prove any payments made thereon and prays that the certificate be not amended by striking the mortgage; and that the petitioner be ordered to pay the principal amount and interest due according to the terms of the mortgage.

The case came on for trial on April 24, 1980 with a stenographer and witnesses being sworn. Both petitioner and respondent called one witness. Five exhibits were introduced into evidence, all of which are incorporated for reference herein for the purpose of any appeal

The sole question to be decided herein is whether or not the mortgage should be stricken under the provisions of G. L. c. 240, ยง15.

The Court finds the facts to be as follows:

1. On November 18, 1945 Apolonia Antanelis, a widow and the mother of petitioner Myra Alukonis and Joseph F. Antanelis, granted a mortgage (Exhibit 1) on the land and building on Story Street, South Boston to the said Joseph F. Antanelis. This mortgage, noted on certificate of title 14304 issued by the Registry District of Suffolk County, recites that it is to secure payment of a note for $3,500.00 for three years with 4 per cent interest per annum as provided.

2. Joseph F. Antanelis died intestate in 1961 and his wife Anna G. Antanelis, one of the respondents herein, was the administratrix of his estate. She in turn filed an inventory in the estate with the Suffolk Probate Court on January 25, 1962 (Ex. 5) which did not list the mortgage set forth in paragraph 1 above in the personal estate, nor did it list the premises as real estate.

3. Apolonia Antanelis lived on the premises on Story Street from 1923 until retiring to a rest home. From 1940 on petitioner managed the property at Story Street collecting the rents and paying the bills for her mother. The premises consisted of a 3 family house, the mother living on one floor with the other two floors being rented.

4. From 1940 until she took title to the property in December of 1971 no monies were ever paid by petitioner on behalf of the mother to Joseph F. Antanelis on account of the mortgage.

5. Apolonia Antanelis had a will in which the property was left half to her brother, Joseph F. Antanelis. This will was torn up by the mother at the time the Story Street property was conveyed to the petitioner in December of 1971.

6. Apolonia went to a nursing home in December of 1971 from a hospital and while at the nursing home conveyed the premises on Story Street in South Boston to her daughter, the present petitioner, by deed dated December 8, 1971, being Document No. 308952 filed at the Suffolk Registry District (Ex. 2).

7. Certificate of Title 83050 covering the Story Street premises was issued to Myra Alukonis dated June 7, 1972 and listed on the memoranda of encumbrances thereon was a mortgage being Document No. 171120 running in favor of Joseph F. Antanelis, the terms being $3,500.00 for three years with 4 per cent interest dated November 18, 1945, date of registration being January 15, 1946 at 12:30 p.m. (Ex. 3).

8. Respondent became aware of the mortgage on being contacted by petitioner's attorney within the past six months. She was married to Joseph F. Antanelis on December 25, 1937, had lived in the Story Street house for four and one-half years until moving to her father's house and then her own home when her first child arrived. Apolonia and respondent, husband Joseph F. Antanelis, had a very close relationship and respondent would not necessarily have known about any financial dealings between the two.

The Court finds and rules that the title to the land at the premises on Story Street in South Boston is encumbered by an undischarged mortgage given to Joseph F. Antanelis dated November 18, 1945, registered as Document No. 121120 on Certificate of Title No. 83050 proposing to secure a note for $3,500.00 payable in three years with 4 per cent interest, said note being dated November 18, 1945; and that Apolonia Antanelis until a transfer and petitioner since the transfer have been in uninterrupted possession of the land for more than 20 years after the expiration of the time limiting the mortgage, namely November 18, 1948, and that no payment was made on the mortgage or other recognition given to said mortgage for more than 20 years on the maturity date thereof, namely November 18, 1948.

As a result the Court orders that the said certificate of title being No. 83050, Registry District of Suffolk County, Massachusetts, be amended by striking therefrom on the memoranda of encumbrance all reference to the above mortgage.