CONF 41022

September 14, 1988

Plymouth, ss.



This is a petition for confirmation of title pursuant to G.L. c. 185 to a parcel of land located in the westerly part of the Town of Plymouth, as shown on Land Court Plan No. 41022A. Answers have been filed and trial of this matter commenced on May 12, 1986. During the sixth day of trial, on September 9, 1986, the defendant Carreau raised the issue of whether the plaintiff Vistic acquired certain deeds purporting to convey title to locus through actual fraud, constructive fraud or some other unfair and improper conduct. The defendant was allowed to amend its answer raising the allegation of fraud. It further appearing to the Court that the allegation as to acquisition of the deeds involved David Hanrahan, attorney for the plaintiff, it was ordered that such allegation be determined forthwith. The matter then proceeded with eight additional days of trial as to the single issue of procurement of the deeds. During these eight days, the following witnesses were called: Charles Arnold, David Hanrahan, David Carreau, John H. Wyman, Frank J. Marino and Charles D. Hardy, Jr. In addition thereto, portions of the deposition of Anne E. Linn and Lois B. Smith were read into the record. Nine exhibits were admitted into evidence as to this issue, making a total of sixty-six exhibits being before the Court. Counsel also argued this issue and filed memoranda of law and requests for findings of fact and rulings of law.

The single issue to be decided here is whether the deeds which Vistic acquired from Anne E. Linn and Lois B. Smith (Exhibits 8-11) were acquired through fraud or unfair conduct such as to preclude confirmation of title based upon these deeds.

The defendants' allegations of misconduct are based upon the actions of David G. Hanrahan and Robert Briggs, an attorney whom the defendants allege was acting as Mr. Hanrahan's agent and implicitly, the agent of Vistic. These allegations were based in a large part on letters written to Mrs. Linn and Mrs. Smith by Attorneys Hanrahan and Briggs (Exhibits 61, 62 and 63) in which certain statements are made concerning David Carreau.

In consideration of all of the evidence before the Court, I find as follows:

1. There is no credible evidence that Attorney Briggs was acting on behalf of Mr. Hanrahan or Vistic in his dealings with Mrs. Linn and/or Mrs. Smith.

2. Attorney Briggs was, in fact, acting as attorney for Mrs. Linn and Mrs. Smith as evident in part by his letter of June 9, 1981 (Exhibit 62) in which he cautions Mrs. Smith that Mr. Hanrahan "is very smooth and is pushing very hard . . . and will undoubtedly telephone you personally. . ." and in which he later discusses two totally unrelated matters. It is moreover clear from her deposition that Mrs. Smith considered Mr. Briggs to be her attorney.

3. There is insufficient evidence to demonstrate that either Mrs. Linn or Mrs. Smith delivered the said deeds to Vistic because of the alleged material misrepresentation of fact made to them by Vistic or any of its agents.

4. Assuming Arguendo that the statements of Mr. Hanrahan concerning David Carreau were wholly without basis, such representations were not material in bringing about the execution and delivery of the deeds to Vistic.

5. Mrs. Linn and Mrs. Smith relied on sources other than Vistic or its agents in reaching the conclusion to convey their interest as described in said deeds to Vistic.

6. Under the circumstances of this case, Vistic and most certainly Mr. Hanrahan had no duty whatsoever to communicate information and/or opinion concerning the title of locus or their dealings with Mrs. Linn and Mrs. Smith to the Carreaus or their attorneys.

7. The activities of David Hanrahan in regards to this matter as demonstrated by the evidence were in the best interests of his client and in no way amounted to fraud or unfair conduct.

Accordingly, I rule as a matter of law that:

l . Vistic was not guilty of bad faith with respect to this matter under the rationale set forth in State Street Bank and Trust Co. v. Beale, 353 Mass. 103 (1967) and Kezdres v. Land/Vest Properties, Inc., 382 Mass. 34 (1980).

2. The deeds from Mrs. Linn and Mrs. Smith are not void by reason of Vistic's method of procurement.

3. The affirmative defense of fraud and bad faith as it relates to confirmation of title based upon the said deeds is dismissed.

As stated above, this phase of the proceedings has been limited to only one aspect of the case.

The plaintiff suggests in its requests for findings and rulings that the issue of the Carreau's claim of title and possible irregularities of the Land Court plan are also ripe for decision. I do not agree. As to the remaining issues, the defendants have not completed their cross examination or had an opportunity to present their own case as to title. In any event, it appears to the Court upon evidence before it that there may be a serious defect with the plaintiff's plan. The future proceedings in this confirmation case will be addressed by this Court at a later date.

Judgment accordingly.