MISC 125280

August 15, 1989

Bristol, ss.



This is an action commenced under G.L. c. 237, later amended to be brought under c. 240, §6 et seq., to remove a cloud on title by which the Plaintiff, John F. Medeiros ("Plaintiff"), seeks a judgment that as to the parties, he holds title to a certain parcel of real estate containing about 12,903 square feet, located on the southerly side of Durfee Street in New Bedford, Massachusetts. Said parcel is shown as Lot No. 33 on Plan No. 81 of the New Bedford Assessor's Maps. The Plaintiff has moved for summary judgment pursuant to Rule 56, Mass. R. Civ. P.

This matter came on to be heard and was argued by counsel. After considering the memoranda, pleadings and related documents filed with this Court, I find and rule that there are no issues of material fact in dispute and that this matter is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1976).

I find the following facts to be pertinent and uncontested:

1. On May 8, 1981, the Plaintiff recovered judgment against the Defendant, David A. Medeiros ("Defendant"), in the sum of about $7,175 following which an execution issued.

2. On July 20, 1981, levy was made on real property of the Defendant, such execution and levy being duly recorded with the appropriate Registry. On February 5, 1986, a Sheriff's Deed purporting to convey the property to the Plaintiff was duly recorded.

3. The execution has never been returned to the issuing court as required by G.L. c. 236, §27.

The law is clear that a Sheriff's Deed is valid only if the execution with the return thereon is returned to the court. A purchaser acquires no title by the delivery and recording of the deed of the officer who makes the sale unless the officer makes a return upon the execution. Walsh v. Anderson, 135 Mass. 65 (1883); Firth v. Haskell, 148 Mass. 501 (1889); Ellis v. Lyford, 270 Mass. 96 , 99-100 (1930). This rule is no doubt to protect the judgment debtor from multiple levies upon an execution. Inasmuch as the execution has not been returned to the issuing court, the Sheriff's Deed, as of this date, is of no force or effect. Having so found, I do not consider what the rights of the parties might be under G.L. c. 236, §33, or what they might be in the event the execution is eventually returned.

Accordingly, I find that the Plaintiff acquired no interest by the Sheriff's Deed and grant summary judgment to the Defendant.

By the Court