MISC 123769

December 9, 1987

Dukes, ss.



This action was brought by Peter J. Nickowal of Vineyard Haven, in the County of Dukes County, against Richard Clark, Jr. and Bruce Levett, defendants, as the present record owners of premises in West Tisbury in said County, formerly owned by the plaintiff and his ex-wife, Judith E. Nickowal, also a defendant. The complaint alleges that the Judgment of Divorce entered by the Probate Court between the plaintiff in this action, Peter J. Nickowal, and the defendant Judith E. Nickowal, expressly made an agreement of said parties a part of the Judgment of Divorce. The complaint further alleges that said agreement included the plaintiff's right of first refusal to purchase the former marital home for $45,000 for a period terminating on December 29, 1988 and that the defendant Judith Nickowal sold the property to the other defendants on April 15, 1987 for the sum of $99,500 without first offering to sell it to the plaintiff. All of the defendants have answered, but the motion for summary judgment is brought only by Richard Clark, Jr. and Bruce Levett to whom Mrs. Nickowal conveyed the premises.

A motion for approval of a lis pendens was allowed by this Court on June 23, 1987. Thereafter, the motion for summary judgment hereinbefore mentioned was filed and was argued on November 24, 1987.

The facts are not in dispute and are as follows:

1. The Dukes County Probate Court entered a Judgment of Divorce Nisi on March 21, 1984, in Nickowal v. Nickowal, Dukes County Probate No. 1257, and in the Judgment it was ordered that: "the parties comply with the provisions of an Agreement dated March 21, 1984, signed by them, filed herewith, and expressly made a part hereof, but notwithstanding such incorporation herein, said agreement shall survive as a contract with independent legal significance."

2. The agreement referred to in the Judgment of Divorce Nisi contained the following paragraph relative to the division of real property:

The Husband and Wife are joint owners of land in West Tisbury, Massachusetts, described in Dukes County Registry of Deeds Book 295, Page 295. The Husband will convey to the Wife all of his right, title and interest, including all rights of homestead and curtesy, to the Wife. The Wife will pay to the Husband the sum of Ten Thousand ($10,000.00) Dollars, with an agreement that the Husband shall have a right of first refusal to purchase the premises for the sum of Forty-Five Thousand ($45,000.00) Dollars, should the Wife wish to sell the said premises. This right of first refusal is to expire on the eighteenth birthday of the said minor child, namely December 29, 1988.

3. By deed dated March 21, 1984 and duly recorded with Dukes County Registry of Deeds in Book 412, Page 749, Peter J. Nickowal and Judith E. Nickowal "for consideration paid, and in full consideration of Ten Thousand ($10,000.00) Dollars" granted to Judith E. Nickowal the real estate in question. The reference to the marital status of the grantors was stricken from the deed, and it is silent as to this. There is no reference in the deed to the agreement set forth in paragraph 4 of the contract between Mr. and Mrs. Nickowal or to the option or right of first refusal of the plaintiff set forth therein.

4. In March of this year, Judith E. Nickowal entered into a Purchase and Sale Agreement with the defendants Clark and Levett in which she agreed to sell to them, and they agreed to purchase, for the sum of $99,500.00, the locus. Subsequently, by deed dated April 15, 1987 and duly recorded in Book 471, Page 623, the property was conveyed for such sum to the defendants Clark and Levett.

5. Paragraph 4 of the contract between the Nickowals did not contain any mechanics for implementing the husband's so-called "right of first refusal", but it is not disputed that Mrs. Nickowal gave no notice to the plaintiff of her wish to sell the locus.

6. The attorney who represented defendants Clark and Levett in connection with their purchase from Mrs. Nickowal, and who is co-counsel in this action, executed an affidavit in which he states that in September of 1982 he had been hired by the present plaintiff to represent him in a domestic relations matter with his wife, but that in November of 1983 the plaintiff and the attorney agreed that the case was at an impasse and he was discharged. The attorney further stated that he never saw, spoke to, or communicated with the plaintiff, his attorney, his wife, or his wife's attorney from November of 1983. The attorney finally swore that he was away from his office at the time the Purchase and Sale Agreement was delivered to it, that his staff and associate arranged for the title examination and coordinated the closing costs, and that his sole role was attendance at the closing at which neither the seller nor buyers were present, reviewing the closing statement, conducting the title rundown, delivering the purchase monies in exchange for the deed and putting the papers on record.

The contest centers on the necessity of recording the Probate Court Judgment in order to bind third parties without actual notice of the right of first refusal. The plaintiff contends that there is no requirement of Massachusetts law that the right of his client be a matter of record in order to preserve it, whereas the defendants contend that it would be inequitable to charge them with notice of the plaintiff's right in the real estate since there is no record in the Registry of Deeds of the agreement incorporated in the Probate Court Judgment. Conversely, the plaintiff argues that there is enough indication in the Registry of Deeds that the Nickowals had been divorced to require the defendants or their attorney to review the Probate Court records.

The resolution of this action will adversely affect one of two innocent parties, but it was within the ability of the plaintiff to protect his rights pursuant to the Probate Court Judgment by filing it for record in the Registry of Deeds. This he did not do. Accordingly, the equities would suggest that the defendants Clark and Levett should prevail, and the Massachusetts statutory law also leads to that result. On its own facts, however, this appears to be a matter of first impression with the statute which I find and rule is controlling having been seldom construed in the years that it has been in effect. G.L. c. 184, §17 [Note 1] provides as follows:

A judgment or decree, at law or in equity, rendered after June eighth, eighteen hundred and ninety-two, affecting the title to real property, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual notice thereof, unless a certified copy of the record thereof has been recorded in the registry of deeds for the county or district where the land lies, with a memorandum of the town where the land lies and a description thereof sufficiently accurate for identification if the record of the judgment or decree does not give those particulars. If a notice of the pendency of the action has been duly recorded in the registry of deeds, the record of the judgment or decree may be made within sixty days after its rendition, and the entry of an ordinary attachment of real property in the registry of deeds, shall be considered notice of the pendency of the action.

The operative words of section 17 are "[a] judgment or decree, at law or in equity, . . . affecting the title to real property,". The Judgment entered by the Probate Court which incorporated the contract between the libelant and the libelee as to the division of real estate clearly affected the title to real property. While the plaintiff's right to purchase the property should his former wife elect to sell it could not be exercised until she made her decision, he nonetheless had a present interest in the real estate which the courts now would have specifically enforced if it had been a matter of record in the Registry of Deeds. [Note 2] Section 17 requires such a Judgment to be recorded in order that it have an effect other than against the parties thereto, their heirs and devisees and persons having actual notice thereof, and this section was not complied with. See Morehardt v. Dearborn, 313 Mass. 40 , 45 (1943). Even if the requirements of the statute had not been met, but a provision had been set forth in the deed to Mrs. Nickowal, then the result here would have been different, but this elementary precaution was not taken. [Note 3]

The Massachusetts courts have strictly construed the requirement of actual notice. For example in Tramontozzi v. D'Amicis, 344 Mass. 514 , 517 (1962), the court, upon review of the cases relative to the requirements of actual notice, held that the reference in a probate inventory to an unrecorded mortgage was insufficient to meet the strict standard of construction. See also Richardson v. Lee Realty Corp., 364 Mass. 632 , 634-635 (1974). In True v. Wisniowski, 13 Mass. App. Ct. 501 (1982), the wife delayed recording the Judgment for alimony pursuant to the provisions of G.L. c. 208, §34A and accordingly, the Appeals Court held that she took subject to a prior attachment by the defendant. The only possible material issue of fact in dispute is the extent of knowledge of the defendants' counsel and the imputation of this knowledge to his clients. Nothing has been shown in this regard to change the usual rule as to actual notice or to charge the defendants with it. See General Builders Supply Co. v. Arlington Co-operative Bank, 359 Mass. 691 (1971).

Accordingly, since there is no material issue of controverted fact in this action insofar as the plaintiff and the defendants Clark and Levett are concerned, I have deemed it appropriate to allow the motion for summary judgment brought by the two defendants. However, the complaint also names as a defendant the plaintiff's former wife and allowance of the motion for summary judgment does not dispose of this element of the action.

The defendants also rely on the provisions of G.L. c. 183, §4 and G.L. c. 208, §34A, but neither directly relate to the factual situation presently before the Court. The plaintiff, for his part, relies on the decision in Mister Donut of America v. Kemp, 368 Mass. 220 (1975), where the Supreme Judicial Court held that the statutory definition of notice of lease did not require that an option to purchase set forth therein be set forth in the notice of lease for which provision is made in G.L. c. 183, §4. The court held that if the purchaser had constructive notice of the notice of lease from its recording in the Registry of Deeds, he was bound to inquire of the lessee the details of the lease. The court did not reach the question of the necess ty of recording an option or right of first refusal (however the plaintiff's right in the present case may be denominated) in order to protect such interests against purchasers for value without actual notice, only the issue of whether such rights need be specifically set forth in a notice of lease.

By the Court


[Note 1] Compare G.L. c. 184, §15 which provides that "this section shall not apply to attachments, levies of execution or proceedings, other than proceedings under equity jurisdiction, in the probate courts."

[Note 2] Indeed the recording in and of itself doubtless would have forestalled any sale by Mrs. Nickowal without first offering the locus to her former husband.

[Note 3] There may be academic questions as to whether such a provision afforded constructive notice, but the practical effect of such a reference, if carefully drafted, would have been to block any sale without the required offer to the plaintiff.