MISC 95797

November 2, 1987

Franklin, ss.




In Miscellaneous Case No. 95797, the plaintiff, Catherine L. Fournier ("Fournier"), seeks a determination as to the validity of a sheriff's sale held April 11, 1977 and the resulting sheriff's deed to her. The defendant, Frederick Woods ("Woods"), filed an answer and counterclaim seeking to set aside the sheriff's sale because 1) the execution and levy were not made "forthwith" under the provisions of G.L. c. 236, §4 and 2) the sheriff failed to comply with the statutory requirements, of G.L. c. 236, §28. On July 15, 1983, Fournier transferred her interest in the subject premises at 507 East Main Street, Orange, Massachusetts, to Agency Replace A-Car, Inc. In Miscellaneous Case No. 111557, the plaintiff, Frederick Woods, brought an action against the defendant, Agency Replace A-Car, Inc. ("Agency"), seeking a declaration that Woods was the record owner of the subject property.

A motion to consolidate was allowed on February 14, 1984 and a trial was held on June 29, 1987 at which one witness testified and nine exhibits were introduced which are incorporated herein for the purpose of any appeal.

In consideration of the foregoing, I find as follows:

1. Frederick W. Woods, Jr. and Jacqueline L. Woods acquired title to 507 East Main Street in Orange, Massachusetts, as tenants by the entirety on June 20, 1972 by deed recorded in the Franklin County Registry of Deeds, Book 1307, Page 14 (Exhibit 1). [Note 1]

2. Jacqueline L. Woods died on April 22, 1974.

3. On May 20, 1976, Fournier recovered a civil judgment against Woods in the amount of $3,498.66 in the Franklin District Court.

4. An execution on said judgment was obtained on June 23, 1976 (Exhibit 3).

5. On October 1, 1976, a deputy sheriff levied on the execution by recording (depositing) a copy of said execution in th Franklin County Registry of Deeds at Book 1477, Page 140, with an attached memorandum that all right, title and interest which Woods owned in the property were being seized (Exhibit 3).

6. On March 15, 1977, the deputy sheriff gave notice in writing to Woods that the sale of the property would take place at public auction on April 11, 1977. Notice was published in the Greenfield Recorder on March 25, April 1 and April 8, 1977 (Exhibits 6 and 7).

7. On April 11, 1977, Fournier purchased the premises for $1,500.00 and received a sheriff's deed.

8. Fournier recorded this sheriff's deed on April 19, 1977 in Book 1497, Page 30 (Exhibit 5).

9. A confirmatory deed was recorded in Book 1580, Page 13 ratifying and confirming the sheriff's deed to Fournier but acknowledging that the previous deed (Exhibit 5) had erroneously described the real estate as having been attached on mesne process. This confirmatory deed acknowledged that such real estate was never attached on mesne process rather it was taken by a levy on an execution dated June 23, 1976 (Exhibit 8).

10. On February 9, 1980, Fournier filed a complaint in the Land Court, Miscellaneous Case No. 95797, seeking a declaration and decree of title in her name.

11. On January 28, 1980, Woods filed an answer and counterclaim alleging that the sheriff's sale was defective and that title remained in him.

12. On July 15, 1983, Fournier conveyed all her interest in the property by quitclaim deed to Agency Replace A-Car, Inc. as recorded in Book 1743, Page 46 (Exhibit 9).

13. On September 23, 1983, Woods filed a complaint in Land Court Miscellaneous Case No. 111557 alleging that he remains the true and record owner of the property and that the defendant Agency be ordered to vacate the premises.

General Laws chapter 236, §4 provides:

If land, which was not attached on mesne process in the action in which the execution issued, is taken on execution, the officer shall forthwith deposit in the registry of deeds for the county or district where the land lies a copy of the execution with a memorandum thereon that the execution is in his hands for the purpose of taking the land of the defendant, and no such taking shall be valid against a purchaser in good faith, for value and without notice, before such copy is deposited. If land was attached on mesne process, a copy of the execution with a memorandum as aforesaid shall be deposited by the officer in the registry of deeds for the county or district where the land lies, within forty days after the date which appears on the execution issued upon the judgment in the action, and the attachment shall become void forty days after said date unless the copy is so deposited; . . .

The law is clear that with regard to land attached by mesne process, if a copy of the execution is not deposited within forty days at the registry of deeds by the officer, the attachment is lost. McGrath v. Worcester County National Bank, 3 Mass. App. Ct. 599 , 601 (1975); See Horn v. Hitchcock, 332 Mass. 643 , 644-645 (1955).

The issue at hand involves a determination of the term "forthwith" as land not attached by mesne process is governed by the first sentence of G.L. c. 236, §4. Still Associates, Inc. v. Porter, 24 Mass. App. Ct. 26 , 30 (1987). In the present case, judgment entered for Fournier on May 20, 1976. Subsequently, the execution was obtained on June 23, 1976, however, the execution and memorandum were not deposited by the deputy sheriff at the Franklin Registry of Deeds until October 1, 1976, one hundred days after the execution. "The term 'forthwith' requires action which is substantially immediate, or taken with due diligence." Still Associates, Inc. v. Porter, supra at 30, citing, e.g., Everson v. General Acc. Fire & Life Assoc. Corp., 202 Mass. 169 , 174 (1909); Gamwell v. Bigley, 253 Mass. 378 , 382 (1925); Lafleur v. Chicopee, 352 Mass. 746 , 752 (1967); Gifford v. Spehr, 358 Mass. 658 , 659, 661-662 (1971). "Forthwith" meaning immediately; without delay, directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch. Webster's Ninth New Collegiate Dictionary, 486 (1984); Black's Law Dictionary, 588 (5th ed. 1979). There is nothing in the statute or circumstances of the case to merit a different interpretation.

Woods, as defendant in Miscellaneous Case No. 95797, and as plaintiff in Miscellaneous Case No. 111557, seeks a declaration that the sheriff's sale was invalid due to the failure of the deputy sheriff to deposit the execution and memorandum "forthwith" at the Franklin Registry and also due to a failure to comply with the statutory provisions of G.L. c. 236, §28 dealing with advertising and notice of the sale. Agency contends that Woods' action is in the nature of a suit in equity for redemption and is barred by a one year statute of limitation in G.L. c. 236, §33.

Based on the requirements of G.L. c. 236, §4, it is clear that the deputy sheriff's deposit of the execution and memorandum one hundred days after the execution had issued was neither immediate nor forthwith and thus, the attachment is lost. Correspondingly, inasmuch as the attachment is itself invalid, the sheriff's sale is ineffective and the statute of limitations is inapplicable.

In addition to the failure of the deputy sheriff to levy forthwith, Woods also contends that there was a failure to comply with the statutory provisions of c. 236, §28 concerning Notice of Sale which reads as follows:

The officer, thirty days at least before the sale, shall deliver to the debtor, if found within his precinct, a written notice of the time and place of sale and shall post such a notice in a public place in the town where the land lies and also in two adjoining towns, if there are so many in the county. The officer shall also publish such a notice once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper published in the town where the land lies.

The parties have acknowledged that Woods was given less than thirty days notice of the pending sale by the deputy sheriff and the sale publications were not made in accordance with the twenty-one day requirement. "But unless it appeared therefrom, that in making the levy and sale, the requirements of the statute had been followed, the judgment debtors had not been divested of their estate." Blake v. Rodgers, 210 Mass. 588 , 592 (1912). Rand v. Cutler, 155 Mass. 451 , 453 (1892). When a defect in the levy and execution process is either substantial or an essential part of the statute, the levy made on the execution will be invalid. MRI, Inc. v. J. Henry Schroeder Bank & Trust Co., 12 Mass. App. Ct. 903 , 994 (1981); Wellington v. Gale, 13 Mass. 483 , 488 (1816).

It is important to note that the scheme of G.L. c. 236 entitled Levy of Execution of Land provides remedies for levies which are invalidated by defects or errors made in the proceedings. G.L. c. 236, §§51 and 52 specifically allow a creditor to pursue other remedies to satisfy the judgment or to remedy an invalid levy by being issued a new execution.

The defendant, Agency, has attempted to make a showing of costs for improvements made to the premises in the event this Court finds the sheriff's sale invalid. This showing is acknowledged but no costs will be allowed in light of Agency's knowledge of the pending litigation and Woods' claim of ownership to the premises prior to Agency's undertaking such improvements.

On the basis of the above, I rule that Frederick W. Woods, Jr. is the record owner of the premises at 507 East Main Street. Nothing herein, however, shall be construed to bar Catherine L. Fournier from pursuing what rights she may have under §51 of G.L. c. 236 or otherwise.

Judgment accordingly.


[Note 1] All references herein are to the Franklin County Registry of Deeds.