This case presents the unusual situation of a motion for judgment on the pleadings pursuant to the provisions of Mass. R. Civ. P. Rule 12(c). Since all matters necessary for a decision of this nature are included within the pleadings, I have ruled that it is a true motion for judgment thereon and not a motion for summary judgment requiring the affidavits and other material made pertinent to such a motion by Rule 56. The parties have agreed that the facts are as set forth in the pleadings and that the question before the Court is one of law only. The motion for judgment is allowed for the reasons set forth herein.
From the pleadings the following facts appear and I so find:
1. Olga Susan Inge, the plaintiff, is a resident of Acton in the County of Middlesex, and the defendant is a resident of Blackstone, Virginia.
2. Plaintiff was the wife of John R. Inge, the son of the defendant, and with him held title to certain premises in Acton conveyed to them by Starr Homes, Inc. by deed dated July 29, 1977 and recorded with Middlesex South District Deeds Book 13268, Page 158.
3. The defendant provided John R. Inge with a cashier's check for $5,000 dated June 15, 1977 which was used to purchase the real estate in question. Mr. Inge in return executed a note dated June 17, 1977, neither witnessed nor under seal, to his mother in the amount of $5,000 payable on demand with interest at the rate of 10% per annum.
4. By instrument dated May 16, 1978 and recorded with said Deeds in Book 13442, Page 243, John R. Inge gave to Helen G. Inge a mortgage to secure the payment of $5,000 on demand. The mortgage was not executed by the plaintiff.
5. On or about December 6, 1979 a special master appointed by the Middlesex Probate Court pursuant to an order of said Court dated November 30, 1979 (as of March 29, 1979) conveyed to the plaintiff all the right, title and interest of John R. Inge in certain real estate located at 103 Hayward Road in said Acton.
6. On or about May 14, 1980 plaintiff was granted a judgment of a divorce nisi from John R. Inge by the Middlesex Probate Court, Docket No. 123114. [Note 1]
The Massachusetts Reports are replete with decisions concerning the nature of a tenancy by the entirety and the rights of the husband and wife in the real or personal property so held. There have been many statements treating generally the interests therein of the spouses when property is so held, and the ways in which they may deal with it, but the question with which the Court is now faced apparently has not previously been decided on the appellate level. It involves the proposition as to whether a mortgage is valid which is executed during coverture by the husband alone where title to the property is held with his wife as tenants by the entirety. The parties recognize that if the wife survives her husband, the mortgage is defeated so the lien of the mortgage is lost as is an attachment, a sale on execution and a purchase by a third party from a husband's creditor. See for example, Licker v. Gluskin, 265 Mass. 403 (1929). The narrow question is whether the mortgage has any standing during the life of the wife. If it does, she cannot sell the property or refinance it without payment so that the husband's grantee in the mortgage obtains by indirection what the law clearly did not authorize directly.
The common law on classical tenancy by the entirety has come under increasing attack on constitutionality grounds and on grounds of inconsistency with the ERA. The problem which it has posed in the late twentieth century world are considered at length by Justice Kaplan in West v. First Agricultural Bank, Mass. (1981). [Note 2] In West the Supreme Judicial Court declined to rule on the constitutionality of existing tenancies by the entirety. The case raises but does not decide the question as to whether the legislative revision of the rights of the partners in such tenancies now stated in G.L. c. 209, §1, effective as of February 11, 1980, would be applied to classical tenancies created prior to said effective date but affected by encumbrances made or suffered after February 11, 1980. In our present case, the tenancy was created and mortgage executed prior to February 11, 1980, and the mortgage is, therefore, governed by the common law.
The incidents of the classical tenancy by the entirety have evolved over the years in a long succession of judicial pronouncements and are well settled. The interest of the husband may be attached by his creditors, Raptes v. Pappas, 259 Mass. 37 , 38-39 (1927) but the interest of the wife cannot be reached by hers; Licker v. Gluskin, supra. If the wife survives her husband, any interest held by his creditors or by the purchaser from such creditor pursuant to a sale on execution is cut off, and the wife holds title to the premises free from it. The husband is entitled to possession of the premises and to all rents and profits therefrom. A lease executed by him is valid while he lives. Peter v. Sacker, 271 Mass. 383 (1930). Conversely, it has frequently been stated as in Campagna v. Campagna, 337 Mass. 599 (1958) at page 605 that "(s)uch a title continues during the existence of the marital relationship and cannot be changed except by death, divorce, a deed of both parties or a deed of one spouse to the other."
In Pineo v. White, 320 Mass. 487 (1946) it was held that a wife alone could not execute a discharge of a mortgage to herself and her husband as tenants by the entirety. The bar, however, interpreted the decision as applying to both spouses, and thereafter, any discharge routinely was signed by both. The decision required an enactment of legislation designed to cure the problem of a defective discharge signed only by one of the marital parties, and the statute applies to discharges signed by only one spouse. See G.L. c. 183, §54A.
We pass now to the specific question as to whether the husband may execute a mortgage, good for so long as both husband and wife lived but subject to defeasance by the wife's survival. After consideration of all the facts, I find and rule that he cannot. It may be that a different result would have been reached by the Court which decided Licker v. Gluskin, supra, since such case seems to have premised upon a wife's early common law inability to convey real estate without her husband's signature whereas he could convey hers. West v. First Agricultural Bank, supra at page 379, ftn. 20. If this case were to be decided for the first time today, no one can doubt that a different result would be reached. The question to be decided here has not previously been decided, however, and therefore, there is no precedent that requires this Court to hold that a husband may give a mortgage without his wife's consent which is a valid encumbrance in the real estate held by them as tenants by the entirety. This particularly is so where Massachusetts is a so-called "title theory state" in which the legal title to the mortgaged premises is in the mortgagee subject to defeasance upon the performance of the conditions stated in the mortgage which is deemed a deed of conveyance transferring a defeasible fee. Atlantic Savings Bank v. Metropolitan Bank & Trust Co., 9 Mass. App. Ct. 286 (1980). The problems which authorizing such a mortgage would create if a mortgagee attempted to foreclose are apparent. The possible adverse effect in the rights of a third party purchaser is obvious. With the rise in the divorce rate title problems would be frequent. More basic, however, is the constitutional and ERA problems within which context the question must be considered. This would seem an inappropriate time to expand the doctrine of the rights of a husband in a tenancy by the entirety. I, therefore, find and rule that the mortgage from John R. Inge to the defendant is invalid and that the plaintiff holds title to the premises free from the lien thereof and from any claim of the mortgagee thereunder.
[Note 1] The defendant's counsel alleged in his argument that a divorce was granted to Mr. Inge in Virginia prior to the Massachusetts divorce, but I have not considered this allegation in reaching my conclusions. Even if this in fact were the case, it would not change the results here.
[Note 2] Mass. Adv. Sh. (1981) 368.