MARIO M. BELSANTI, SR., EXECUTOR UNDER THE WILL OF ORLANDO CASSIANI vs. ROBERT AVROM GOLDBERG, EXECUTOR UNDER THE WILL OF ROSE CASSIANI.

Orlando V. Cassiani filed this complaint to quiet title to a certain parcel of land located at 360 Langley Road, Newton, Massachusetts, (hereinafter locus), aginst his sister-in-law Rose Cassiani, (hereinafter the defendant), in effect claiming that his record title is superior to that of defendant.

The defendant filed an answer claiming that plaintiff has failed to state a claim against her and that in any event that defendant has paramount title.

Orlando V. Cassiani died August 2, 1980 and on a motion allowed by the Court Mario M . Belsanti, Executor under his will, was substituted as plaintiff herein.

Rose Cassiani died testate shortly after this case was heard. A motion to substitute Robert Avrom Goldberg, Executor under the will of Rose Cassiani, was allowed on July 30, 1982. However, for convenience and clarity, Rose Cassiani will be called the defendant herein.

The case came on for trial on August 26, 1981. A stenographer was properly sworn to record and transcribe the testimony. Eight exhibits were introduced into evidence and are incorporated herein in the event of an appeal. Four witnesses testified and the case was continued until October 27, 1981 to allow plaintiff the opportunity to depose Umberto Cassiani, aged ninety and incapacitated by a recent stroke. The Court has now been informed that the said Umberto Cassiani is permanently disabled physically and mentally, so that his testimony cannot be obtained. Briefs were submitted by counsel for plaintiff and defendant on January 8 and 18 respectively. Both parties hence rest their cases.

The Court finds the following facts:

1. Umberto Cassiani and his wife Maria lived on locus until the death of Maria, December 24, 1972. They had four children: Orlando V. who died October 24, 1979 and whose executor is the present plaintiff; Emilio who is still living and was the husband of the defendant Rose Cassiani; Dante who is deceased; and Ann Cassiani Belsanti, married to Mario M. Belsanti, the plaintiff herein, as executor of the will of Orlando.

2. Orlando V. Cassiani operated filling stations, the last one being in Framingham, until the oil crisis of 1973 and 1974. He kept a room at the Cassiani house and after he gave up his filling station in Framingham moved permanently into locus.

3. On April 9, 1977 Umberto Cassiani conveyed locus to his son Orlando by deed not recorded until September 13, 1979. The reason for the non-recording evidently was a supposed tax advantage to be gained by retaining record title in Umberto's name. This deed was proprly executed and acknowledged by Umberto before Wayne R. DiCarlo on April 9, 1977. It was delivered to and retained by Orlando until its recordation on September 13, 1979.

4. On May 3, 1978 Umberto went with his daughter-in-law Rose, the wife of his son Emilio and the defendant herein, to the office of Attorney Robert Avrom Goldberg. Mr. Goldberg's office is located near the locus and Umberto and Rose went there on foot. Mr. Goldberg had known Umberto for some years prior to this. They conferred with Mr. Goldberg about drafting a deed and then Mr. Goldberg conferred alone with Umberto about drafting a will.

5. On May 4 or 5, 1978, Umberto returned to Attorney Robert Avrom Goldberg's office, bringing with him a letter he had received from his physician whom he had been requested to see by Mr. Goldberg inasmuch as Umberto at this time was nearly ninety years old. Umberto told Goldberg he wanted to deed the property to Rose because she was caring for him. Attorney Goldberg looked into the matter, discovered that the title had not been cleared after Umberto's wife Maria's death. He proceeded to obtain the necessary L8 form from the inheritance tax department and drafted a deed for Umberto's signature. The deed (Exhibit 6) was delivered by Umberto to Rose who in turn gave Umberto $1.00 in the presence of Attorney Goldberg. Attorney Goldberg then took the deed from Rose and recorded it at Middlesex South District Deeds on May 11, 1978.

6. Orlando V. Cassiani lived at locus continually from 1974 or 1975 on to the day of his death. Emilio and Rose Cassiani moved in to locus with Umberto and Orlando sometime after 1976. Expenses were shared on a hit or miss basis by Orlando and Umberto and after the deed to Rose in May of 1978, between Orlando and Rose. Sometimes one would pay the bills and sometimes the other. Obviously Orlando and Rose did not get along. Rose evidently got the meals for herself and Umberto; Orlando kept his own food and got his own meals. Rose was born in Italy and speaks English with a very marked accent. Umberto was ill in early 1978 and Rose took care of him after his release from the hospital.

7. Mario Belsanti, the husband of Ann, the youngest child of Umberto and Maria Cassiani, had been informed that he had been designated as executor of a will drawn by Orlando Cassiani. In January or February, 1979, Mario heard from a source unknown to the Court that Umberto had deeded locus to Rose. Mario informed Orlando of this but was reassured by the latter that he had the title to the locus.

8. Sometime thereafter in 1979 Orlando was served with a summary process action brought by Rose to evict him from the locus. Orlando then caused his deed to be recorded on September 13, 1979. The summary process proceeding would appear to be still in abeyance.

9. On October 24, 1979 Orlando brought this present complaint in the Land Court to quiet his title.

10. On August 2, 1980, Orlando died leaving a will naming his brother-in-law Mario M. Belsanti as executor. Under paragraph fifth of this will (Exhibit 5) all the "remaining estate" after some bequests not here applicable was left to the children and grandchildren of his sister Ann Belsanti "equally share and share alike."

11. On October 15, 1980 Mario M. Belsanti was appointed Executor under the will of Orlando (Exhibit 5).

The question is who has the paramount title, Rose or the Belsanti children, devisees under the will of Orlando.

The answer to the question lies in the effect of the recording acts. G.L.c. 183, §4 in pertinent part reads as follows:

"A conveyance of an estate in fee simple....shall not be valid as against any person, except the grantor..., his heirs and devisees and persons having actual notice of it, unless it...is recorded in the registry of deeds for the county or district in which the land to which it relates lies."

"The recording statute...does not effect the validity upon delivery of an unrecorded deed as betwen the parties to it or as to persons with notice." Aronian v. Asadoorian, 315 Mass. 274 at 276 (1943).

Actual notice is strictly construed and means more than mere knowledge which would ordinarily put a person on inquiry. The person relying upon the unrecorded deed has the burden of showing that the person claiming under the recorded deed had notice. Tramontozzi v. D'Amicis, 344 Mass. 514 (1962). These principles must be applied to the facts of the case before the Court.

Umberto conveyed the locus to Orlando on April 9, 1977. From this time on until this deed was recorded on September 13, 1979 title was in Orlando subject to being cut off by a second conveyance by Umberto to a bona fide purchaser. A bona fide purchaser is one who takes for value, without notice and in good faith. Inasmuch as the delay in recording the deed prevented constructive notice, actual notice of the unrecorded instrument by the subsequent grantee prior to recording is required to protect the interest of the priorunrecorded grantee. Thus, when Umberto conveyed to Rose on May 10, 1978 Rose was not bound by the doctrine of constructive notice as the deed from Umberto to Orlando was not recorded.

There is no evidence that Rose had actual notice of the prior deed to Umberto. There is ample evidence Umberto's attorney, Mr. Goldberg, had no notice as he checked out the title and cleared it from an inheritance tax lien that might have accrued from the death of Umberto's wife Maria. Thus, neither Umberto nor Rose imparted any knowledge of this prior deed to Mr. Goldberg, Rose presumably because she had no knowledge of it and Umberto for no known reason except perhaps for his age. Rose caused a summary process action to be brought against Orlando and it was then that she and her attorney discovered the prior-in-time deed to Umberto.

The deed in to Rose was drafted carefully by Attorney Goldberg, was signed in his presence by Umberto after Umberto had gone to his physician a few days before, was acknowledged by Umberto before him and was handed to Rose who gave Umberto $1.00 as consideration. Rose then gave the deed back to the attorney for recording, which was made on May 11, 1978.

The Court finds and rules that the deed to Rose was a good and sufficient deed given for consideration to Rose who was without actual or constructive notice of the prior deed to Umberto; and that Rose Cassiani has title paramount to that claimed by plaintiff herein.

Plaintiff has filed thirteen "Requests for Findings of Fact and Conclusions of Law." Number 9 was deleted by plaintiff's counsel. Those numbered 1-3, 6, 10 and 12 are alowed, numbers 4, 5, 7, 8, 11 and 13 are denied.

Defendant has submitted six "Requests for Findings of Fact." All six of these requests have been allowed. Defendant has also submitted five "Requests for Rulings of Law," all of which have been allowed.

The Court orders the complaint dismissed.

Judgment accordingly.