MISC 101651

April 2, 1981

Middlesex, ss.

Randall, C. J.


Plaintiff, Ann V. Newell, wife of Gary P. Newell, brought this complaint to enjoin the foreclosure of a second mortgage held by defendants Russell St. Peter and Deborah Riel. Defendants' answer consists of general denial and a claim of lack of knowledge of certain allegations in the complaint. On February 11, 1981, the Land Court issued an Interlocutory Order for a Preliminary Injunction enjoining foreclosure of the mortgage in question herein. The case was tried on March 19, 1981 with plaintiff and defendants both having two witnesses testify for them. Ten exhibits were admitted into evidence all of which are incorporated by reference herein for the purpose of any appeal.

The complaint basically alleges that the plaintiff Ann V. Newell, is not bound by a certain mortgage purportedly given by Gary P. Newell and Ann V. Newell to defendants Russell St. Peter and Deborah Riel dated March 17, 1980 and recorded in the Middlesex North District Registry of Deeds, in Book 2412, Page 2011 [Note 1] for the reason that she never signed the mortgage instrument, introduced into evidence as Exhibit 1.

Thus, the sole question presented in this case is whether or not Ann v. Newell did in fact sign this mortgage. The Court finds the following facts:

1. Janet L. Bouchard conveyed a parcel of land at 11 Blossom Street, Tyngsboro, to Gary P. and Ann V. Newell by deed dated August 15, 1975, recorded in Book 2161, Page 491 (Exhibit 2).

2. On the same date, August 15, 1975, the said Gary P. Newell and Ann V. Newell granted a mortgage on the above property to the United States of America, Farmer's Home Administration, recorded in Book 2161, Page 492, which is still outstanding. (Exhibit 3)

3. In July, 1979, Gary P. Newell bought a retail business from defendant St. Peter which he operated with some help from his wife, Ann V. Newell. The business did not flourish and debts were incurred to St. Peter and, presumably to Deborah Riel.

4. On March 17, 1980, Gary P. Newell executed a second mortgage note and mortgage to Russell St. Peter and Deborah Riel to secure these debts in the amount of $25,772.00. (Exhibit 1) A signature, purporting to be that of Ann V. Newell, is affixed to the second mortgage instrument. The instrument further contains a recital that the same was acknowledged to be the free act and deed of Gary P. Newell and Ann V. Newell before one Martin Ames, a Notary Public, on March 17, 1980.

5. The Plaintiff Ann V. Newell separated from her husband, Gary P. Newell, shortly after she discovered the existence of this second mortgage in October, 1980 (Exhibit 1). Plaintiff resides with her children on the property, her husband having moved out.

6. Plaintiff testified under oath that she did not sign the mortgage instrument nor did she appear before Martin Ames, the notary public, and acknowledge the signature to be hers. (Exhibit 1) In addition, she testified that she never gave anybody permission to sign her name and never ratified her signature on the mortgage.

7. Miss Elizabeth McCarthy, a handwriting expert, testified, with comparison charts, (Exhibit 10), that the signature on the mortgage was not that of Ann V. Newell.

8. Gary P. Newell, called by the defendants, testified that Ann V. Newell did not in fact sign the mortgage but that her name was signed by an employee of his, one Deborah Hammell and that both acknowledged their signatures before Martin Ames, the notary public, as those of Gary P. Newell and Ann V. Newell.

9. The notary public, Martin Ames, testified that he took the acknowledgements on the mortgage (Exhibit 1) with parties purporting to be Gary P. Newell and Ann V. Newell before him but that he had never seen the lady before him before or since.

On all the evidence the Court finds that Ann V. Newell did not in fact sign or acknowledge the mortgage instrument (Exhibit 1) nor did she authorize anyone to sign for her or otherwise ratify the signature, which purported to be hers. The Court therefore rules that plaintiff's interest as a tenant by the entirety cannot be foreclosed in the foreclosure proceedings. Of course, this does not effect any foreclosure proceedings insofar as the husband's, Gary P. Newell's, interest in the property is concerned.

The Court thus orders that the defendants be permanently enjoined from foreclosing under the mortgage (Exhibit 1) the interest of Ann V. Newell in the property owned by her and her husband, Gary P. Newell.

Judgment accordingly.


[Note 1] All references to recorded instruments are to instruments recorded at the Middlesex North District Registry of Deeds.