MISC 93774

June 2, 1980

Essex, ss.

Sullivan, J.


The plaintiff, James Higgins, purchaser at a sheriff's sale, pursuant to the provisions of G. L. c. 237 seeks possession of premises in Groveland in the County of Essex owned of record by the defendant, David Ryan, Jr., and his wife, as tenants by the entirety. The defendant answered and set forth eight affirmative defenses in his pleading. Two of these were grounded on the interest of the defendant's wife in the premises, and a third on a declaration of homestead recorded after the attachment of the defendant's premises but prior to the date on which the execution issued. A fourth defense was that the action was time barred. The other defenses have not been pressed.

A trial was held at the Land Court on May 6, 1980 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The parties submitted the case upon an agreed statement of facts which is as follows:

1. Plaintiff JAMES HIGGINS is a resident of 52 London Road, Quincy, Norfolk County, Massachusetts.

2. Defendant DAVID RYAN, JR. is a resident of 44 Seven Star Road, Groveland, Essex County, Massachusetts.

3. On September 15, 1972, a deed was recorded in Book 5905 Page 588 of the Essex County Registry of Deeds by which the Defendant DAVID J. RYAN, JR. and NANCY RYAN took title as tenants by the entirety to a parcel of property as follows:

Said property at 44 Seven Star Road, Groveland, Essex County, Massachusetts, is bounded and described as follows:

Beginning at an iron pipe at the Southerly corner thereto and running

N 35° 37' W a distance of 140.0 feet, more or less, along said Seven Star Road, to an iron pipe, thence S 54° 33' E by other land of the grantor, a distance of 299 feet, more or less, to land now or formerly of Stocker, thence

S 54° 33' W by other land of the grantor, 292.8 feet, more or less, to the point begun at. Being shown as lot 2 on a plan entitled Land in Groveland, Massachusetts, June 27, 1961, Scale 1"=40', Raymond C. Presley, Inc., Reg. Land Surveyors 1113 Monroe Street, Lynn, Massachusetts and containing 41,400 square feet more or less, and said Plan is recorded with Essex County (South) District Registry of Deeds on July 6, 1961, Plan 400 of 1961.

4. On or about July 8, 1975, Defendant DAVID J. RYAN, JR. executed a Promissory Note dated July 8, 1975 in the principal amount of $25,000.00 by which he agreed to pay Plaintiff JAMES HIGGINS said principal sum plus interest at the rate of nine (9%) percent payable in monthly installments.

5. On or before March 6, 1978, Plaintiff filed a Complaint in the Norfolk County Superior Court, docket No. 89199, seeking to have a Judgment enter against the Defendant for his failure to pay said promissory note. At the date that said action was filed Defendant DAVID J. RYAN, JR. owed the Plaintiff JAMES HIGGINS the sum of $18,287.06.

6. On March 6, 1978, DAVID J. RYAN, JR. was sent notice of an application by the Plaintiff JAMES HIGGINS for a Real Estate Attachment of all his interest in the real property described in Book 5905 Page 588 of the Essex County Registry of Deeds.

7. On March 20, 1978, the Plaintiff JAMES HIGGINS was permitted by order of court to attach the interest which the Defendant DAVID J. RYAN, JR. had in the real property at 44 Seven Star Road, Groveland, Massachusetts. The said attachment was duly recorded at the Essex County Registry of Deeds on March 23, 1978.

8. On March 21, 1978, the Defendant DAVID J. RYAN, JR. filed a Declaration of Homestead concerning the property at 44 Seven Star Road, Groveland, Massachusetts described in Essex County Registry of Deeds, Book 5905 Page 588.

9. On June 27, 1978, an execution issued on a Judgment of the Norfolk Superior Court in the action of JAMES HIGGINS v. DAVID J. RYAN, JR., No. 89199, in favor of JAMES HIGGINS, in the amount of $19,137.37.

10. On July 27, 1978, the Plaintiff JAMES HIGGINS had Charles Reardon, Deputy Sheriff of Essex County, levy on the attachment of March 23, 1978.

11. On July 27, 1978, the Deputy Sheriff posted public notices in the following public places:

12. On August 2, 1978, Charles Reardon, the Deputy Sheriff of Essex County gave notice to DAVID J. RYAN, JR. of the date and time of public sale by mailing postage prepaid and addressed to him a copy of said notice with a true and attested copy of the execution.

13. On August 2, 1978, Charles Reardon, the Deputy Sheriff of Essex County caused a copy of the time and place of sale be given by having same published in the public newspaper called The Haverhill Gazette published in the City of Haverhill and circulated in the Town of Groveland, Essex County, Massachusetts.

14. On September 28, 1978 at 10:00 at the office of Charles Reardon, the Deputy Sheriff of Essex County, the time and place of sale appointed as aforesaid, sold the right, title and interest of DAVID J. RYAN, JR. in the real estate at 44 Seven Star Road, Groveland, Essex County, Massachusetts by publication to JAMES M. HIGGINS of 52 London Road, Quincy, Massachusetts for $19,518.99, he being the highest bidder.

15. On September 28, 1978, Charles Reardon, Deputy Sheriff of Essex County issued a Sheriff's Deed to the property described above to JAMES HIGGINS which was recorded on November 7, 1978 in Book 6536, Page 286 of the Essex County Registry of Deeds.

16. On February 21, 1979, Plaintiff JAMES HIGGINS commenced an action for possession under the provisions of M.G.L. Ch. 237. Defendant DAVID J. RYAN, JR. denies Plaintiff JAMES HIGGINS is entitled to possession.

The plaintiff also introduced by agreement a copy of the $25,000 promissory note dated July 8, 1975 from the defendant, as maker, to the plaintiff, as payee (Exhibit No. 1), the sheriff's deed to the plaintiff dated September 28, 1978 and recorded with Essex South District Deeds, Book 6536, Page 286 (Exhibit No. 2), and the original execution issued by the Norfolk County Superior Court dated June 27, 1978 with the sheriff's return affixed thereto (Exhibit No. 3). [Note 1] The plaintiff called no witnesses, but the defendant, in addition to offering an instrument entitled "Declaration of Homestead" dated March 21, 1978 and recorded with said Deeds, Book 6452, Page 602 (Exhibit No. 4) called the defendant as a witness. He testified that he was unemployed, that his most recent employment had been by the City of Haverhill in a CETA position which was victim to a lack of funding, that he was married with four children, one of whom went to a private school, the others to public school, that his wife was employed, that the mortgage on the premises was about two months in arrears, that he had made substantial improvements to the premises, that he did not dispute his obligations to the plaintiff, and that he had been unable to find alternative housing for his family.

The plaintiff is entitled to prevail in this action since none of the defenses relied on by the defendant can defeat the plaintiff's action. It is only in a case where record title fraudulently stands in the name of a third party that the creditor must commence his proceedings within one year of the sale. General Laws, Chapter 236, section 47. In a case like this the usual period of limitations for suits to recover land is applicable, which is twenty (20) years. General Laws, Chapter 260, section 21. It clearly has not run so the defense that the plaintiff's action is time barred must fail.

The defendant recorded a Declaration of Homestead on March 21, 1978, which was after the attachment, but prior to the execution, in the Superior Court proceedings. The promissory note on which the latter were grounded was executed in 1975. The cause of action obviously arose prior to the execution of the Declaration of Homestead, and therefore the defendant's estate is not exempt from attachment, levy on execution and sale. General Laws, Chapter 188, section 1, provides

••• such estate shall be exempt from the laws of conveyance, descent and devise and from attachment, levy on execution and sale for the payment of his debts or legacies, except

(1) Sale for taxes.

(2) Attachment, levy and sale in the following cases:

(a) For a debt contracted previous to the acquisition of said estate of homestead.

So far as the interest of Mrs. Ryan is concerned, the law has long been settled that when husband and wife hold title as tenants by the entirety, the husband's creditors may reach his interest. Accordingly the plaintiff is entitled to possession of the premises and to a life estate for the joint lives of the defendant and his wife with the remainder in fee should the defendant survive his wife. Quinlan v. Weeks, 332 Mass. 482 (1955). As I recently wrote in a ruling on a motion for summary judgment in Hannon, Executrix v. Sweeney, Miscellaneous Case No. 94556,

The estate by which the defendants hold record title, that is the tenancy by the entirety, has been attacked as unconstitutional both by wives and for completely different reasons by their creditors. The enactment of the Massachusetts Equal Rights Amendment (Article 106 of the amendments to the Massachusetts Constitution, amending Declaration of Rights, Article 1) has led to the argument with which I am sympathetic that this estate discriminates against women and can no longer be permitted. Admittedly the rights of a husband in a tenancy by the entirety are superior to those of the wife since he has the exclusive right to possession and income during their joint lives, and his creditors alone may levy on his interest to satisfy his debts whereas the wife's mere expectancy of title is neither alienable nor subject to execution by her sole creditors. It should be remembered, however, that this method of holding title is not imposed by the Commonwealth, but is a matter of choice selected by the marital parties. Absent some holding to the contrary by the Supreme Judicial Court or the Appeals Court, it would appear that the Equal Rights Amendment was not self executing but requires implementation by the general court. If this is so, then the law remains the same as to the nature and validity of a tenancy by the entirety.

It is true that since the above decision was reached, St. 1979, c. 727, [Note 2] has legislatively changed the incidents of a tenancy by the entirety in such a way that a different result would be reached in the present case. However, the rights of all parties appear to have vested at the expiration of one year from the date of the sale. For that reason the new statute [Note 3] which ultimately may be applied retrospectively in instances where the sale had not been had at the time of its adoption cannot affect the result here.

Judgment accordingly.


[Note 1] The sheriff's return contains the words "The consideration of this transaction of (sic) $40,960.00," which it was agreed in open court did not refer to the dealings between the parties nor was it applicable thereto.

[Note 2] Chapter 209 of the General Laws is hereby amended by striking out section 1, as most recently amended by section 14 of chapter 423 of the acts of 1971, and inserting in place thereof the following section:-

Section 1. The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if such person were sole. A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety.

The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.

[Note 3] The parties did not argue the applicability of said Chapter 727.