LILLIAN C. CAPPELLO and CURTIS A. NEWCOMB vs. BYRON WILLIAMS.

Plaintiffs bring this action seeking a judgment for possession and for rent and profits deriving from the occupation by the defendant of premises at 7 Route 28, Orleans, Massachusetts (hereinafter locus).

On September 3, 1980, plaintiffs filed a motion for the allowance of an attachment in the amount of $12,000. against land of the defendant and the attachment was allowed by the Court on September 5, 1980.

The defendant set forth some thirteen defenses in his answer which seem to boil down to a claim that defendant is the rightfulowner of the locus by virtue of a purchase and sale agreement and because plaintiffs acted in an unfair, oppressive and fraudulent manner. On December 11, 1980, plaintiffs brought a motion for summary judgment which was denied on February 24, 1981.

A trial was held on July 8, 1981. A stenographer was sworn to record and transcribe the testimony in the case. Seven witnesses testified and 17 exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. All references to recordings are to Barnstable County Registry of Deeds.

On all the evidence the Court finds the following facts:

1. Title to locus was in Claude W. Hopkins who died December 27, 1947 in Boston, leaving as his only heir his uncle, John Hopkins, of Wellfleet, Massachusetts. Wilton I. Hopkins, a first cousin of Claude W. Hopkins petitioned for administration of the latter's estate at the requests of John Hopkins and was subsequently appointed Administrator (Exhibit 6).

2. On January 21, 1948, John Hopkins conveyed all his "right, title and interest and expectancy which I may have or be entitled to in the estate of Claude W. Hopkins" to Wilton I. Hopkins (Exhibit 7) by deed dated January 21, 1948. This deed was acknowledged before Charles E. Frazier, Jr. on January 21, 1948 but was not recorded until July 24, 1958.

3. On July 14, 1950 Wilton I. Hopkins conveyed locus to Lillian C. Joyce by warranty deed acknowledged before John D. Bodfish and recorded on the same date in Book 757, Page 168. (Exhibit 8).

4. On February 11, 1957, Wilton I. Hopkins conveyed locus to a straw, Natalie V. Fletcher [Note 1] by a deed dated February 11, 1957 and recorded on July 23, 1958 in Book 1010, Page 310. It should be noted that the recording date is one day prior to the deed in to Wilton I. Hopkins - see paragraph 2 above.

5. On November 25, 1957 Lillian C. Joyce died intestate leaving two daughters, plaintiff Lillian C. Cappello and Loraine S. Newcomb.

6. On July 23, 1958, Natalie V. Fletcher conveyed locus to Wilton I. Hopkins and Esther L. Hopkins as tenants by the entirety by deed recorded on July 23, 1958 in Book 1010, Page 309.

7. On July 24, 1958 the deed from John Hopkins to Wilton I. Hopkins (Exhibit 7 - see paragraph 2 hereof) was recorded in Book 1010, Page 309.

8. On May 14, 1968 Loraine S. Newcomb died, see Barnstable Probate No. 45653, - leaving a husband Cecil E. Newcomb, Jr. and nine children.

9. On October 31, 1969 the said Cecil E. Newcomb, Jr. died, see Barnstable Probate No. 45358, leaving the above said nine children.

10. Sometime in 1972 Wilton I. Hopkins and his wife Esther filed a petition for a Declaratory Judgment, being Equity No. 251, in the Barnstable Probate Court, to clear a supposed defect in their record title. This petition named Lillian C. Cappello and Curtiss A. Newcomb, (The plaintiffs in this present action) and the eight brothers and sisters of Curtiss A. Newcomb, they being all the heirs of Lillian C. Joyce who deceased in 1957 as defendants.

11. Sometime before May 1, 1974, Wilton I. Hopkins died leaving his widow Esther Hopkins as the surviving tenant by the entirety and hence with whatever title the Hopkinses had in locus. In this same month, the defendant, in the company of Mr. C. Peters of Peters Real Estate, North Eastham, Massachusetts, saw locus and believed it would be suitable for his use as a music store and as personal living quarters. Mr. Peters made inquiry of Mrs. Esther Hopkins and informed the defendant that she would sell the property for $35,000. The following day defendant made an offer of $27,500. and was informed that his offer was accepted.

12. On May 31, 1974, Peters drafted a Purchase and Sale Agreement (not in evidence) which was signed by the defendant and his wife Joan Williams (Defendant and Joan Williams were subsequently divorced) and Esther L. Hopkins. The agreement provided for a down payment of $2,750 dollars (10% of the purchase price) which was given by defendant to Peters, the real estate agent. The Purchase and Sale Agreement provided that the property would be "conveyed on or before July 15, 1974 by sufficient quitclaim deed."

13. In June, 1974, a meeting was set up between the defendant, his wife and Esther Hopkins' attorney, Charles E. Frazier, Jr. Financing was discussed and defendant asked Attorney Frazier if Mrs. Hopkins would take back a mortgage for $22,000. to which she subsequently agreed.

14. On July 18, 1974, defendant and his wife without independent counsel went to Attorney Frazier's office to pass papers.Defendant gave Attorney Frazier two checks, one a bank treasurer's check for $2,700. and a personal check for $50.00. Defendant and his wife signed a mortgage note (Exhibit 16) and a mortgage to Esther Hopkins who was not present at the passing. (Exhibit 15). Attorney Frazier showed defendant and his wife a deed signed by Esther Hopkins (Exhibit 17) but did not deliver the deed to defendant and his wife, informing them that he would hold the same in escrow until a "minor problem" was resolved. When asked what the "minor problem" was Frazier replied that it was "nothing that you have to worry about. It is something we will have to resolve." Attorney Frazier gave defendant permission to move into the house immediately and begin renovations.

15. On July 19, 1974, defendant began to renovate the property with the help of a crew of electricians, plumbers, and construction workers. The renovations were extensive, including the addition of a large room, the insulation and panelling of the interior walls, new plumbing and electrical systems, and a rebuilt and enclosed porch, all done at an estimated cost of $18, 000.

16. For the next year and a half to two years defendant periodically called Attorney Frazier to see when the "minor problem" would be taken care of so he could have his deed. When Frazier did take defendant's phone calls he informed him that he was still trying to resolve the problem. When defendant tendered his first mortgage payment, Attorney Frazier told him to hold on to his mortgage payments until things were resolved. Defendant never received a tax bill for the property and never paid taxes thereon.

17. Approximately 2 years after defendant took possession of the premises, and still had received no deed to it, he asked the advice of a Collis Peters, a real estate broker, who suggested he call Attorney Richards. This the defendant did and was informed by the latter that Mrs. Hopkins was involved in the law suit set forth in paragraph 8 to clear title to the locus that defendant thought he owned. This was the first time that defendant had knowledge of the litigation involving locus and the possible flaws in his title thereto.

18. Defendant was never joined as a party in the Equity Case No. 251 in the Barnstable Probate Court. Exhibit 14 is a copy of the "Settlement Agreement" filed in Case No. 251 wherein defendants therein - and plaintiffs in the present action - agreed to pay "Wilton I. Hopkins, his administrators, lega1 representatives and/or duly established legal heirs" the sum of $16,750.00 in return for the conveyance of all their right, title and interest in locus. In paragraph 3 of this settlement agreement the Hopkinses acknowledged that the locus was occupied by a tenant at will and that they would cooperate in his removal. In paragraph 4 thereof the Hopkinses represented that "there were no binding contracts, agreements or understandings between the plaintiffs and the said tenant with reference to the purchase of said property at the present time." This was signed by Esther L. Hopkins as Plaintiff and the plaintiffs in the present case as defedants therein.

19. On October 25, 1978 a "Final Decree" was entered in Equity Case No. 251 in accordance with the settlement agreement declaring the plaintiffs in the present case to be the owners of locus. (Exhibit 12)

20. On July 1, 1979 Lillian C. Cappello, the daughter of Lillian C. Joyce was appointed Administratrix of the latter's estate. Barnstable Probate No. 58505 (Exhibit 9).

21. On December 27, 1979 a license to sell locus was granted (Exhibit 9) to Lillian C. Cappello, Administratrix.

22. By deed dated April 15, 1980 and recorded in Book 3094, Page 34, Lillian C. Cappello individually and as administratrix of the estate of Lillian C. Joyce together with the other named heirs of Lillian C. Joyce granted locus to Lillian C. Cappello and Curtiss A. Newcomb as trustees under an agreement of trust recorded in Book 309, Page 32 (Exhibits 10 and 11).

23. The Treasurer's check for $2,700. and the personal check for $50.00, the deed signed by Esther Hopkins, the Mortgage and note signed by defendant and his former wife to Esther Hopkins were produced in Court by Attorney Frazier who had held them since the supposed passing of papers on July 18, 1974.

24. Defendant has been in possession of locus since July 18, 1974 and has been both living and operating a music store thereon since that date. He has paid no additional money other than the $2,750. paid at the time of closing to Mr. Frazier and the initial $2,750. paid to C. Peters upon his signing of this purchase and sale agreement. [Note 2]

1. Do plaintiffs have title to locus?

The answer to this question is yes. Plaintiffs trace their title back to a warranty deed from Wilton I. Hopkins to Lillian C. Joyce on July 14, 1950 (paragraph 3). At the time of this conveyance Wilton I. Hopkins was the owner of locus having received title to it by deed from John Hopkins, the heir of Claude W. Hopkins (see paragraph 2) even though on July 14, 1950 this deed from John Hopkins had not been recorded. As between these parties, Lillian C. Joyce had whatever title Wilton I. Hopkins had, even though his title was subject to being cut off by a conveyance from the estate or heirs of Claude W. Hopkins to a bona fide purchaser for value without notice. No such conveyance was made of record prior to the recording of the deed from John Hopkins, the heir of Claude W. Hopkins - see paragraph 2 herein - on July 24, 1958. This recording put the record title in Lillian C. Joyce from this time forward.

In the interim from the date of the deed to Lillian C. Joyce from Wilton I. Hopkins on July 14, 1950 until the recordation of the deed in to Wilton I. Hopkins on July 24, 1958 from John Hopkins, the various conveyances of Wilton I. Hopkins were of no avail. Wilton I. Hopkins had no title to convey after his conveyance to Lillian C. Joyce and its recording on July 14, 1950. Wilton I. Hopkins attempted to convey locus to Natalie V. Fletcher - see paragraph 4 -, purportedly a straw. Even conceding that she had no actual notice and was not acting for the said Wilton she had constructive notice of his conveyance to Lillian C. Joyce on July 14, 1950 because of the recording of this deed. Thus Natalie took nothing and could convey nothing to Wilton I. Hopkins and his wife Esther by her deed on July 23, 1958. See paragraph 4. The Hopkinses acquired no interest by virtue of this deed and on Wilton's death in 1974 Esther's survival as a tenant by the entirety brought her nothing.

The recording of the deed from John Hopkins to Wilton I. Hopkins on July 24, 1958, the day after the deed in to Wilton I. and Esther L. Hopkins from the straw, cured any problem with the conveyance in to Lillian C. Joyce henceforth (paragraph 4). From this time forward, the title to locus comes down to plaintiffs in a straight forward manner. The release deed from Esther Hopkins as part of the settlement of Case No. 251 gave nothing to plaintiffs that they did not already have.

Thus, the Court finds and rules that the plaintiffs herein have title and that they and their predecessors have had it since July 14, 1950. When Esther L. Hopkins signed the purchase and sale agreement with defendant and his wife, she had no title to give to defendant and his wife.

Defendant has occupied the premises since July 18, 1974 and during that time has paid no rent. He never received a real estate tax bill and of course never paid one. Even though defendant attempted to make payments on the mortgage note that he signed the attorney for Esther L. Hopkins told him to keep his money until it was straightened out. (Paragraph 16). Hence, he paid no mortgage payments. Thus, defendant should be liable for his use and occupancy of the premises for the eighty-six months of his occupation to the present time. From evidence given by a real estate appraiser called by the plaintiff the Court finds that a fair average rent would be $250. per month, or a total of $22,100. for the period in question. The Court finds and rules that the defendant owes the plaintiffs this amount.

However, the defendant put in some $18,000. plus to renovate and improve the premises almost immediately on moving in, in July, 1974. He has lost any interest he might have had on this sum. The Court finds and rules that this amount off sets any amount due to plaintiffs for use and occupancy, cancelling out the same.

The Court leaves open any question of loss of appreciated value that may have been sustained by the defendant and of course any other actions the defendants may have against Esther L. Hopkins et al.

The Court orders that judgment issue accordingly.