MISC 126079

May 19, 1988

Worcester, ss.



This is an action by the plaintiff for the rescission of a deed executed on October 19, 1984 purporting to convey a one-sixth interest in approximately seven acres of real estate located in Bolton, Massachusetts ("locus") to the defendants Garneau. The plaintiff alleges that the deed is invalid in that at the time of its execution and delivery it did not contain a description of the property sought to be conveyed, was altered subsequent to the execution and was procured through fraud.

This cause came on to be heard on April 19, 1988. A stipulation of facts was agreed to by counsel and fourteen exhibits were introduced into evidence all of which are incorporated herein for the purpose of any appeal.

The following facts were stipulated at trial:

1. The plaintiff, a resident of Alfred, Maine, acquired a one-sixth interest in locus through the estate of his mother, Marianne Chase Cameron who died on May 14, 1973.

2. On or about October 12, 1983, the plaintiff was notified by letter from an attorney allegedly representing the defendant Leo A. Garneau ("Garneau") that the plaintiff had an ownership interest in real property located in the Commonwealth of Massachusetts. The letter further represented that the defendant Garneau wished to purchase the plaintiff's ownership interest for five thousand dollars.

3. This October 12, 1983 letter did not disclose to the plaintiff the location or description of the locus.

4. On October 19, 1984, an agent of the defendant Garneau traveled to Alfred, Maine with a check for two thousand dollars and a deed which omitted any description of the property to be conveyed.

5. The plaintiff accepted the check for two thousand dollars and executed the deed before a notary public in Alfred, Maine on October 19, 1984. At no time on or before October 19, 1984 was the plaintiff told the location or description of the land in Massachusetts in which he had an interest.

6. Subsequent to execution, the defendant Garneau attached a description of locus to the October 19, 1984 deed and then recorded the deed at the Worcester County South District Registry of Deeds at Book 8414, Page 153. [Note 1]

7. A deed of the locus from the defendants Garneau to the defendant New England Land Management, Inc. ("NELM") was recorded immediately thereafter in Book 8414, Page 157.

At issue herein is the validity of a deed which when executed contained no description whatsoever of the property to be conveyed and was later altered by the insertion of such description prior to recording.

Massachusetts General Laws, Chapter 104, section 26(4) provides as follows:

4. A description of land shall be sufficient if it specifies the city or town in which the land lies and the place of record in the public records where there is a recorded or registered plan or instrument giving the boundaries of the land and identifies the land with reference to said plan or instrument and, if the land is registered, specifies the certificate or certificates of title thereof.

The defendants have admitted that the deed at the moment of execution as well as when delivered did not contain a description of the property to be conveyed. In McHale v. Treworgy, 325 Mass. 381 , 384 (1950), the Court held that an inaccurate description in a tax collector's deed rendered the deed invalid.

We do not believe that it was ever intended . . . to do away with the fundamentals of a valid deed as recognized and applied in all other instances in law. Tiffany, Real Property (3d ed.) ยง990, says in part, "In order to make a valid conveyance of land, it is essential that the land itself, the subject of the conveyance, be capable of identification, and, if the conveyance does not describe the land with such particularity as to render this possible, the conveyance is absolutely nugatory. . . ." McHale at 384-385.

Clearly, the execution of this deed without a description of the property to be conveyed renders it invalid.

Both the plaintiff and the defendants have also argued and briefed the issues of the material alteration and fraudulent procurement of the October 19, 1984 deed. As I find and rule the deed to be invalid based on the lack of description of the property to be conveyed at the time of execution, I do not discuss these issues.

Judgment accordingly.


[Note 1] All instruments referred to herein are recorded at this registry.