MISC 103621

April 1, 1983

Essex, ss.



This complaint was filed under the provisions of General Laws, Chapter 237. The plaintiff alleges that it is a judgment creditor of defendant Whitney and that it attached, levied upon and purchased at a sheriff's sale land owned by Whitney in Salisbury, Essex County, Massachusetts. Since Whitney has not redeemed the property, plaintiff brings this writ of entry to obtain a judgment that it has title to the land in Salisbury and is entitled to possession thereof free and clear of all claims of defendant Whitney.

Defendants, other than Whitney, are subsequent record lienors, who after notice, were defaulted. Defendant, United States of America, appeared and disclaimed any interest in the case.

Defendant Whitney answered admitting that plaintiff had purchased the Salisbury property at a sheriff's sale but alleged that the sale was void because plaintiff had not complied with requisite statutory enactments. Whitney also alleged that plaintiff had accepted money from him and promised that it would not have a sheriff's sale.

A trial was held at the Land Court at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. All recording references herein are to Essex South District Registry of Deeds.

On all the evidence, I find and rule as follows:

On July 7, 1978 the defendant Whitney owned the locus land in Salisbury, Massachusetts, situated on the southeasterly and easterly side of Bridge Road being the premises conveyed to him by Elsie W. Leavitt by deed dated December 7, 1976 recorded in Book 6319, Page 518.

On July 7, 1978, the plaintiff attached all real estate owned by defendant including locus situated within the Essex South District by instrument recorded in Book 6490, Page 46. The attachment was ancillary to a complaint filed in the Superior Court of Essex County by plaintiff against defendant.

On September 15, 1978 the plaintiff recovered judgment by default against the defendant in Essex Superior Court in the amount of $8,068.40. On November 13, 1978 by instrument recorded in Book 6538, Page 158 plaintiff caused a levy to be made on all real estate owned by defendant including locus on Bridge Road in Salisbury.

By sheriffs deed dated May 17, 1979, recorded in Book 6598, Page 240, following proper notice and publication of sale at public auction required by law, the locus was conveyed to the plaintiff. The defendant did not redeem the locus within the one year period provided by G. L. c. 236 ยง33.

Although the defendant answered that the sheriff's sale was void due to non-compliance with statutory provisions, no such contention was pursued at trial and I rule that all requisite statutory provisions for a valid sheriff's sale of the locus to the plaintiff were satisfied.

The defendant also advanced the contention that he had entered into an agreement with the plaintiff to work off his indebtedness to the plaintiff by providing fish processing services. I find that no binding agreement to this effect was ever made but that the defendant did provide some services to the plaintiff in an effort to reduce his indebtedness. However, he could produce no records to substantiate the volume or value of any services provided. In any event, I find that the plaintiff never entered into any binding agreement with the defendant not to go forward with the sheriff's sale of the locus at public auction.

The original sheriff's sale of the locus was scheduled for January 4, 1979. On January 2, 1979 the defendant paid to an attorney for the plaintiff $300.00 and as a result of this payment the sale was adjourned until February 15, 1979 with an understanding that the defendant would have to work out a payment schedule acceptable to the plaintiff. The defendant offered no credible evidence that this was ever done. I find that, although the sheriff's sale was adjourned on three occasions, at no time did the plaintiff or its attorney ever enter into any agreement with the defendant that a sheriff's sale would not be finally held.

Accordingly, I find and rule that the plaintiff holds record title to the locus free and clear of any claim or interest of the defendant Whitney and that the plaintiff has the right to possession of the locus against the defendant Whitney.

Judgment to enter accordingly.