MISC 99410

March 21, 1983

Essex, ss.




Robert E. Christ, plaintiff, in both a complaint brought against Shawmut Bank of Boston, N.A. as the defendant ("Shawmut Bank") (Miscellaneous Case No. 99410) and also in a complaint against the Rose Frank Dress Shoppe, Inc. ("Rose Frank") (Miscellaneous Case No. 99411) seeks a declaratory judgment pursuant to the provisions of General Laws c. 231A, §1 to determine the validity of two general attachments made by the defendants against the interest of Alice Patricia Christ in the premises known as and numbered 438 Mt. Vernon Street in Lawrence, in the County of Essex. Shawmut Bank answered admitting the allegations as to the ownership of the property, alleging that the attachment was made with permission of the Suffolk Superior Court and denying allegations that it constituted an encumbrance on the plaintiff's title and that the interest of Mrs. Christ was beyond the reach of her creditors. Shawmut Bank also filed a motion to dismiss on the ground that the plaintiff was not the real party in interest, and said motion was denied by the Court on October 1, 1980. Rose Frank admitted the allegations relative to the attachment and that it was an encumbrance upon the plaintiff's property but denied that the interest of Mrs. Christ was not subject to attachment.

A trial was held at the Land Court on February 18, 1983 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.

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

1. Robert E. Christ was the owner of the premises at 438 Mt. Vernon Street in Lawrence, in the County of Essex, prior to his marriage to Alice Patricia Christ. By deed dated August 23, 1972 and recorded with Essex North District Deeds Book 1200, Page 402, Sharon Chase, a straw, conveyed to Robert E. Christ and Alice Patricia Christ, husband and wife as tenants by the entirety, the premises on Mt. Vernon Street in said Lawrence, with which these actions are concerned (Exhibit No. 1).

2. Alice Patricia Christ subsequently encountered difficulties with the law and with creditors whom she allegedly defrauded, and she is now of parts unknown.

3. The plaintiff and Alice Patricia Christ are still married. During the period of coverture, the plaintiff was employed and provided for his wife who also held positions with various firms.

4. A writ of attachment in the amount of $65,000, approved by a Justice of the Superior Court, was issued pursuant to Rule 4.1 of the Massachusetts Rules of Civil Procedure in an action brought by Rose Frank against A. Patricia Christ, also known as Alice Patricia Christ, Essex Superior Court Civil Action 10274. The attachment was recorded on May 9, 1978 with Essex North District Deeds in Book 1337, Page 662 (Exhibit No. 3). A writ of attachment in the amount of $7,500, approved by a Justice of the Superior Court, also was issued pursuant to said Rule 4.1 in an action by Shawmut Bank against Alice P. Christ, also known as Alice Patricia Christ, Suffolk Superior Court Civil Action 27075 and was recorded with said Deeds on March 9, 1978 in Book 1333, Page 146 (Exhibit No. 2).

The actions by the creditors are against Mrs. Christ only and not against the plaintiff. The question, therefore, has arisen as to whether the plaintiff has standing in these actions to seek a determination as to the effect of the attachment on real estate owned by him and his wife as tenants by the entirety since he is not a party to the Superior Court cases. It is clear, however, that the attachment, while general and not directed to the specific real estate where the plaintiff resided with his wife, effectively prevents him from conveying or mortgaging the property without either dissolving it by posting of a bond, G.L. c. 223, §120 or by otherwise having the validity of the attachment as to the particular real estate determined. While not directly in point, the reasoning of Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483 , 486 (1968) recognizes the problem of the stranger to the litigation and is authority for finding the standing of the plaintiff to bring the two actions now before this Court.

For many years it was the law of Massachusetts that the interest of a wife in property held with her husband as tenants by the entirety was not subject to attachment by her creditors. Licker v. Gluskin, 265 Mass. 403 (1929). In pronouncing the rule, Chief Justice Rugg explained the nature of the tenancy and the various rights of the parties thereto and cited many cases which had already been decided on the characteristics of the tenancy. He concluded, at page 407, that "a creditor cannot do with the right of a tenant by the entirety that which the tenant cannot do," and that "(s)ince the wife cannot sell it herself, her creditor cannot sell it by resort to attachment and levy on an execution in an action at law." The incidents of a tenant by the entirety have now been changed by statute and may be found in G.L. c. 209, §1, effective February 11, 1980. The Supreme Judicial Court has already decided that the statute is not applicable to transactions prior to its effective date. West v. First Agricultural Bank, Mass. (1981). [Note 1] The case raised but did not decide the question as to whether a tenancy by the entirety created prior to February 11, 1980 but affected by an encumbrance thereafter, would be covered by the common law or by the statutory change. In the present actions, however, all contracts are prior to the statutory change, and the common law accordingly governs.

I, therefore, find and rule on all the evidence that the interest of Alice Patricia Christ in the premises at 438 Mt. Vernon Street in Lawrence, conveyed to her and the plaintiff by Sharon E. Chase by the 1972 deed, is not subject to attachment by the creditors ofAlice Patricia Christ. While the attachment, being general in nature, would be effective as to any property in Mrs. Christ's sole name, the plaintiff is entitled to a declaration that it does not affect in any way the Mt. Vernon Street property held by the plaintiff and his wife as tenants by the entirety, and that he holds title thereto free from the lien of such attachment and any claim of his wife's creditors.

Judgment accordingly.


[Note 1] Mass. Adv. Sh. (1981) 368.