MISC 99421

May 7, 1982

Middlesex, ss.

Sullivan, J.


The Amended Complaint filed in this Court on October 17, 1980 (the original Complaint having been filed in the preceding June) seeks to have a conveyance made by defendant, Teresa A. Bolden, to defendant, David O. Johnson, declared null and void and the same rescinded. I hold that defendant Johnson holds title on a constructive trust for defendant, Teresa A. Bolden, that said Teresa A. Bolden has breached the terms of the gift to her made by her mother, the plaintiff, and that the property is to be re-conveyed by Johnson to Teresa and by Teresa to the plaintiff. The plaintiff for her part is to reimburse the defendant Johnson for the real estate taxes paid by him to the City of Medford as is more fully set forth herein.

A trial was held on February 1, 1982 at which a stenographer was appointed to record and transcribe the testimony. Five witnesses testified including the three parties, Attorney Charles Lewis and the mother of the defendant David O. Johnson. Eight exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal. Defendant David O. Johnson was not represented by counsel at the trial, his attorney having withdrawn with leave of Court. Despite recommendation by the Court that he obtain other counsel, defendant Johnson conducted his own case.

On all the evidence I find and rule as follows:

1. The property which is the subject of controversy is a parcel of land, with the building thereon, now known as and numbered 145 Jerome Street, Medford. It was conveyed by the plaintiff to her daughter Teresa by deed dated May 9, 1980 and recorded with Middlesex South District Deeds, Book 13969, Page 183 (Exhibit No. 3) and by Teresa to the defendant Johnson by deed dated May 20, 1980 and recorded with said Deeds, Book 13972, Page 210 (Exhibit No. 4).

2. Teresa (who was twenty-three years old at the time of the trial and about nineteen years old when the romance began) and David met in the spring of 1978. The friendship rapidly flowered into a close relationship, and by early in the following year they were living together. The liaison was punctuated, however, by beatings which led to hospitalizations, the loss of a baby during pregnancy, drug involvement, at least one court appearance, Teresa's return home, at least twice, and later resumptions of the relationship. It appears finally to have been terminated.

3. Teresa called to Johnson's attention the locus on which her mother was having difficulty in paying the taxes. In April of 1979 Johnson engaged a well known and respected Boston attorney to prepare a draft agreement (Exhibit No. 9) which provided for his purchase of the locus for $6,000, his obtaining of a mortgage for funds to repair the premises and pay the taxes and joint ownership with Teresa. The plaintiff was advised by her counsel not to execute the agreement, and it never was signed by the parties.

4. Johnson had been charged $150 for the preparation of the agreement by his counsel. The Boldens refused to share the cost, and this aroused David's ire. This is evident in his letter to Teresa dated August 11, 1979 (Exhibit No. 2) which refers in the text to this and concludes: "Stay away from me...away from me....away from me. Or I shall strike every time." The letter had been preceded by treatment of Teresa in the emergency department of the Lawrence Memorial Hospital in Medford and an overnight stay there after a beating.

5. At the meeting in Mrs. Bolden's then attorney's office in Malden, she told Johnson and Teresa that the house had been in her family for many years and that she did not want title to pass to owners without the family. Johnson interpreted this as an attempt to arrange a marriage with Teresa and reacted explosively. In Exhibit No. 2 he wrote:

"I felt you and your mother tried to con me with the house. Con me for what, I don't know. I felt hurt and sad for two weeks. I know you don't care for my feelings. In time I could have given you what you wanted. You and your family may say anything you want but don't come within fist or foot I shall strike. I don't trust you and yours."

6. Teresa resumed living with Johnson in January 1980, and at his insistance she finally called her mother, told her that she and the defendant were going to be married and that they needed a place to stay and wanted the house. David agreed to pay the back taxes if Mrs. Bolden would sign the house over to Teresa and agreed also that he would give Mrs. Bolden money to repair the house where she currently lived. Mrs. Bolden agreed, but only if her daughter did not convey the house to David. She still wanted the house to remain in her family, and Teresa agreed. This was reiterated when all parties met at the office of Attorney Wayne Budd to execute the deed from Mrs. Bolden. The deed was executed and recorded on May 9, 1980. Despite the agreement that title was to remain in Teresa's name, Johnson sought unsuccessfully to have his attorney prepare a deed from Teresa to him.

7. Another attorney was engaged by Teresa to draft the deed from Teresa to Johnson and a deed from Johnson back to Teresa. This attorney under summons by David testified at the trial that Teresa told him she was to be married, that there were outstanding taxes due on the property and that she wanted to convey it to Johnson for that reason. After a discussion it was decided that the attorney also would draft a deed back to Teresa. When the couple arrived to execute the deed, Johnson refused to sign. The attorney left them alone, and Teresa testified that under pressure, both physical and mental, she agreed to sign the deed. It then was signed and acknowledged in the usual fashion and recorded.

8. The complaint in this case was filed almost immediately thereafter. Teresa then executed an affidavit in the office of the attorney who appeared for Johnson in this case. [Note 1] She disclaimed reading the affidavit, but I find that in fact she did so.

In substance the affidavit states that she conveyed the property to David with the understanding that he would obtain a mortgage to pay the tax liens and repair and improve the property. Each was to own an one-half interest, would live in the property and David would sign a will leaving the property at his death to Teresa. The affidavit (Exhibit No. 5) recognized her mother's desire that the property remain with the family, but it concluded:

"I have determined that at this time it is necessary for David O. Johnson and I work together in order to avoid losing the property for non-payment of taxes, and repair and restore the property."

9. Johnson treated Teresa violently again in August of 1980. A history of their relationship is outlined in an affidavit dated August 20, 1980 (Exhibit No. 6), which Teresa executed on August 20, 1980 and which also refutes Exhibit No. 5. Teresa is now attending college without the Commonwealth and appears to have rehabilitated herself.

10. Johnson did not progress beyond the ninth grade, but he is well spoken and intelligent. He is desirous of relocating in Houston.

11. Exhibit No. 8 consists of tax receipts from the City of Medford to Johnson and copies of money orders he obtained payable to said city. The combined total is $2,450. While Johnson and Teresa had grandiose plans for the property, no improvements or repairs have been made to it.

12. Despite his treatment of her, Teresa was infatuated with Johnson and desirous of marrying him. Johnson apparently concluded that Teresa and her mother hoped to accomplish this result through the house. Both Teresa and Johnson knew that the locus was conveyed to Teresa in condition that it not be conveyed to one who was not a family member.

13. Other than the payment of taxes to the City of Medford, Johnson has made no payments to either the plaintiff or Teresa as consideration for the conveyance. He has not granted any interest therein to Teresa nor has he executed a will in her favor. He has made no repairs to the plaintiff's present home.

The plaintiff seeks to impose a constructive trust on the real estate at 145 Jerome Street in Medford, title to which is now in the defendant, David O. Johnson. As the Court stated in Coelho v. Coelho, 2 Mass. App. Ct. 433 (1974):

"A constructive trust is imposed in order to avoid the unjust enrichment of one party at the expense of another where legal title to the property is obtained (a) by fraud or (b) in violation of a fiduciary relation or (c) where information confidentially given or acquired is used to the advantage of the recipient at the expense of the one who disclosed the information." (citations omitted)

If a constructive trust is present here, it is because the legal title was obtained by fraud. Undue influence is commonly fraud in the larger sense, and it also partakes of the nature of duress. McDonald v. MacNeil, 300 Mass. 350 (1938) Material compulsion without actual fraud is still equated with fraud and undue influence, Neill v. Brackett, 234 Mass. 367 , 369 (1920) "Undue influence means 'whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammelled desire'". Corrigan v. O'Brien, 353 Mass. 341 , 350 (1967) quoting from Mirick v. Phelps, 297 Mass. 250 , 252. The burden, however, is on the party alleging undue influence to prove it by a preponderance of the evidence. Bruno v. Bruno, Mass. App. Ct. (1980). [Note 2] This burden has been met. It is clear that violence and threats of violence of which Johnson was the perpetrator and Teresa the victim, initially were not directed at obtaining a conveyance of the house. Indeed Johnson surmised that the offer to convey was a ploy to encircle him with a wedding ring. As time passed, however, and Teresa entrapped by love or hate or a combination thereof was unable to sever her ties permanently with her lover, she came more under his influence and was swayed increasingly by Johnson. In due course this destroyed her free agency and constrained her to do that which was contrary to her own untrammelled desire. See Neill v. Brackett, supra, at p. 369. If the actions of Johnson had not culminated in brutality in the attorney's office at the time Teresa contemplated executing the deed to Johnson, and her will had not been ovecome, the transaction would not have been consummated without some arrangement for reconveyance of the locus.

I, therefore, find and rule that Johnson holds the title to the property at 145 Jerome Street, Medford on a constructive trust for Teresa A. Bolden and is to reconvey the premises to her within thirty days from the date of the judgment to be entered in this case.Teresa, however, is a nominal defendant and is not the plaintiff. It is her mother who brought the complaint, whose property it was, and who has been injured by the actions of her daughter and the daughter's "great good friend". The plaintiff conveyed the property to Teresa upon the express condition that it not be transferred to a party who was not a member of the family. Such a provision under certain circumstances might be construed as an invalid restraint upon alienation. I find and rule, however, that the agreement made by Teresa with her mother was valid and enforceable for a limited period of time, that said agreement has been breached, that defendant Johnson had full knowledge of the agreement and that he is bound by its terms. Defendant Bolden is to reconvey the premises to her mother within thirty days after the conveyance by Johnson to her. If either defendant fails to reconvey the premises as provided herein within the time set forth, the judgment shall operate to transfer title to the plaintiff as a matter of law without the execution of a deed or deeds. In such event, the judgment shall be filed for record and may be so filed in any case.

It would be inequitable to compel defendant Johnson to reconvey the property without making provision for reimbursement of the amount of the real estate taxes which he has paid to the City of Medford. Evidence introduced at the trial established that the amount paid was not less than $2,450. The plaintiff is to repay this amount to Johnson upon any sale or mortgage of the premises from the proceeds of the sale or mortgage loan. In view of the conduct of which he stands accused, no interest is to be paid on the amount of the reimbursement from time to time outstanding.

Judgment accordingly.


[Note 1] As stated above, this attorney subsequently, on his motion, was granted leave to withdraw his appearance, and Johnson thereafter conducted his own case.

[Note 2] Mass. App. Ct. Adv. Sh. (1980) 1959.