MISC 129431

September 11, 1989

Plymouth, ss.



By this action, the Plaintiffs, Juan R. and Judith Torruella (collectively referred to as 'Plaintiffs"), seek to quiet title to a certain parcel of improved real estate located at 30 Wirt Way in Duxbury, Massachusetts ("Locus"). Specifically, the Plaintiffs seek entry of a judgment that they are seized in fee simple of Locus and hold such title free of any rights therein in favor of the Defendant, Virginia Wirt ("Defendant" or "Virginia"). The Defendant seeks in counterclaim that the Plaintiffs be restrained and enjoined from proceeding and/or continuing with any eviction proceedings to displace or evict her and/or her three children from Locus, and that this Court impose a constructive trust upon Locus for her benefit and that of her husband, Barry L. Wirt ("Barry"), or in the alternative, that this Court order the Plaintiffs to pay them the reasonable value of Locus.

A trial was held in the Land Court on March 13, 1989, at which a stenographer was appointed to record and transcribe the testimony. Four witnesses testified and twenty-two exhibits were admitted into evidence. One exhibit was marked for identification purposes only. All exhibits are incorporated herein for the purpose of any appeal.

On all of the evidence, I find as follows:

1. Locus consists of approximately 1.2 acres of land situated on Wirt Way in Duxbury, Massachusetts. As shown on a street map of Duxbury (Exhibit No. 7), Wirt Way is located off of Bay Road and at its southerly end abuts Kingston Bay. At present, there are four residences on Wirt Way, the home situated on Locus being occupied by the Defendant, Virginia Wirt and the three children of her marriage to Barry L. Wirt.

2. By deed dated May 12, 1978, recorded at Book 4449, Page 395 in the Plymouth County Registry of Deeds [Note 1] (Exhibit No. 1), Herbert C. Wirt, Sr. ("Herbert") and Dorothy P. Wirt ("Dorothy") conveyed Locus to their son, Barry L. Wirt and his wife, Virginia. At this time, Barry was employed by the Commonwealth as an accountant. The deed relative to this conveyance contains the following pertinent language:

Said premises are conveyed subject to a right of first refusal, whereby the grantors . . . must be allowed to purchase at a price of twenty-six thousand (26,000) dollars the said premises from the grantees . . . before the grantees may offer the premises for sale to any other purchaser.

The ramifications of this right of first refusal were discussed among all parties prior to execution of the deed.

3. On May 12, 1978, Barry and Virginia also granted a mortgage in the amount of $26,000.00 to Herbert and Dorothy, as security for the payment of the $26,000.00 purchase price for Locus (See Exhibit No. 2). The mortgage was to be repaid over thirty years at an annual interest rate of 8.25%, monthly payments amounting to $199.96.

4. Between 1978 and 1981, Barry and Virginia Wirt were delinquent in their monthly mortgage payments. The outstanding mortgage payments during this period of time totalled approximately $7,000.00 (See Exhibit No. 14).

5. Towards the end of 1980, Barry and Virginia Wirt began encountering financial difficulties. In October of 1981, they prepared a summary of their outstanding obligations and anticipated financial needs (Exhibit No. 12), which totalled approximately $18,000.00. Herbert and Dorothy Wirt were given a copy of this summary.

6. Between July 10, 1981 and November 20, 1981, Herbert and Dorothy Wirt loaned Barry approximately $900.00 (See Exhibit No. 15). Thereafter, on November 30, 1981, Dorothy Wirt withdrew an additional $11,000.00 from her savings account in order to finance further obligations incurred by Barry and Virginia (See Exhibits No. 13 and 15). Specifically, the $11,000.00± was used to defray outstanding loan payments to the Rockland Trust Company, real estate taxes owing to the Town of Duxbury, outstanding oil bills and other miscellaneous debts.

7. In view of their financial difficulties, Barry and Virginia reconveyed Locus to Herbert and Dorothy Wirt on December 17, 1981, said conveyance being evidenced by a deed recorded at Book 5092, Page 359 (Exhibit No. 3). This transfer was made with the understanding that Barry and Virginia would thereafter make monthly rental payments of $400.00 to Herbert and Dorothy in exchange for their continued residence at Locus (See Exhibit No. 20). Barry and Virginia were represented by counsel in this real estate transaction. At this time, Barry and Virginia owed Herbert and Dorothy approximately $19,000.00.

8. The recited consideration for the reconveyance of Locus to Herbert and Dorothy was $20,000.00. As additional consideration, Herbert and Dorothy discharged the $26,000.00 mortgage. This discharge, dated November 25, 1981, is recorded at Book 5092, Page 358 (Exhibit No. 4).

9. By 1985, Barry and Virginia were delinquent in their monthly rental payments to Herbert and Dorothy. Herbert and Dorothy thus agreed to reduce the monthly rental rate charged for Locus to $200.00 (See Exhibit No. 20). Despite this reduction in the monthly rental fee, however, Barry and Virginia remained behind in their payments, eventually making no rental payments whatsoever in 1987 and 1988 (See Exhibit No. 20).

10. For the years 1982 through 1988, Herbert and Dorothy Wirt [Note 2] made all payments for real estate taxes (Exhibit No. 16), homeowner's insurance premiums (Exhibit No. 17) and maintenance relative to Locus.

11. In 1987, Dorothy Wirt became concerned for her own financial security. She therefore decided to sell a parcel of real estate situated adjacent to her residence at 307 Bay Road, Duxbury, known as and numbered 315 Bay Road. This conveyance was made to the Plaintiffs, Juan R. and Judith L. Torruella, [Note 3] in May of 1987.

12. In September of 1987, Dorothy made miscellaneous additional payments, totalling in excess of $16,000.00, on behalf of her son Barry (See Exhibits No. 18 and 19). These amounts have not been repaid.

13. At the end of 1987, Virginia and Barry Wirt separated. At this time, Barry moved in with his mother at 307 Bay Road, where he presently resides. Virginia and their three children currently reside at Locus.

14. As late as March 1988, Barry recognized and acknowledged that his mother was the owner of Locus (See Exhibit No. 23).

15. By letter dated June 15, 1988 (Exhibit No. 8), counsel for Dorothy P. Wirt informed Virginia that, as a tenant at sufferance, she must vacate Locus immediately.

16. On August 8, 1988, the Plaintiffs reconveyed the premises located at 315 Bay Road, Duxbury, to Dorothy P. Wirt (See Exhibit No. 6). Thereafter, on August 15, 1988, Dorothy conveyed Locus to the Plaintiffs (See Exhibit No. 5).

17. On September 8, 1988, counsel for the Plaintiffs sent a letter to Virginia Wirt notifying her to vacate, quit and deliver up Locus by October 30, 1988 (See Exhibit No. 9). Thereafter, on October 18, 1988, a third notice was sent to Virginia ordering her to vacate and deliver up Locus within fourteen days (See Exhibit No. 10).

The Plaintiffs herein assert ownership of Locus based on their record title. Conversely, the Defendant claims ownership of Locus pursuant to a constructive trust. [Note 4] The principles governing constructive trusts in this Commonwealth are well-settled. A constructive trust is an equitable remedy imposed to avoid the unjust enrichment of one party at the expense of another where legal title to property is obtained 1) by actual or constructive fraud; 2) in violation of a fiduciary or confidential relationship; or 3) where information confidentially given or acquired is used to the advantage of the recipient, at the expense of the one who disclosed the information. Barry v. Covich, 332 Mass. 338 , 342 (1955); Meskell v. Meskell, 355 Mass. 148 , 151 (1969); Kelly v. Kelly, 358 Mass. 154 , 156 (1970); Coelho v. Coelho, 2 Mass. App. Ct. 433 , 435 (1974); Sanguinetti v. Nantucket Construction Co., Inc., 5 Mass. App. Ct. 227 , 236-237 (1977); Superior Glass Co., Inc. v. First Bristol County National Bank, 8 Mass. App. Ct. 356 , 360-361 (1979); Nessralla v. Peck, 403 Mass. 757 , 762 (1989). The record before the Court fails to support a finding that the Plaintiffs procured title to Locus through fraud, actual or constructive, perpetrated on the Defendant by Dorothy Wirt or that title thereto was obtained by a misuse of confidential information on the part of Dorothy Wirt. To prevail, the Defendant's assertion of title to Locus pursuant to a constructive trust must thus stem from proof that Herbert and/or Dorothy Wirt violated some fiduciary or confidential relationship in conveying Locus to the Plaintiffs.

Although the existence of a fiduciary relationship is to be determined by the particular facts of each case, Cann v. Barry, 293 Mass. 313 , 317 (1936); Warsofsky v. Sherman, 326 Mass. 290 , 292 (1950), Massachusetts case law clearly recognizes that a fiduciary relationship does not arise merely because a conveyance of real estate is made between family members. Kelly at 156-157; Morris v. Morris, 3 Mass. App. Ct. 751 , 752 (1975); Markell v. Sidney B. Pfeifer Foundation, 9 Mass. App. Ct. 412 , 444 (1980); Rudow v. Fogel, 12 Mass. App. Ct. 430 , 432 (1981). This is so even if the grantees promised to hold the land in trust for the grantors. Rudow at 432. Similarly, mere respect for the judgment of another or trust in his character will not be enough to constitute a fiduciary relationship. Comstock v. Livingston, 210 Mass. 581 , 584 (1912); Cranwell v. Oglesby, 299 Mass. 148 , 153 (1937). In such cases, there must be circumstances indicating a just foundation for a belief that, in giving advice or in presenting arguments, one is not acting on his own behalf, but rather in the interests of another party. Cranwell at 153. These particular relationships of trust and confidence may be found to exist on evidence indicating that a person is in fact dependent on another's judgment in business affairs or property matters. Markell at 444, citing Hawkes v. Lackey, 207 Mass. 424 , 431-432 (1911). An application of these principles to the foregoing facts reveals that no fiduciary or confidential relationship existed between Virginia and Barry Wirt, and Herbert and Dorothy Wirt, relative to Locus. By his own admission, Barry had been employed as an accountant as early as 1978. In so admitting, it would appear that, contrary to Virginia's contention, he and Virginia were not entirely dependent on Herbert and Dorothy for direction and advice in financial matters. In fact, Barry and Virginia both testified that, at no time, did they ever consider Herbert and Dorothy to be their financial advisors. Further, as Barry and Virginia were represented by counsel in the 1981 reconveyance of Locus, I find that they understood the nature and impact of their actions relative to this real estate transaction. Moreover, Dorothy Wirt's ownership of Locus, and entitlement to the proceeds of any sale thereof, was known and accepted by the Defendant and Barry Wirt as late as March 1988. I thus find no suggestion in the record that the Defendant and Barry Wirt relied wholly on the business judgment of Herbert and Dorothy in reconveying Locus to them in 1981. At best, I find that the Defendant and Barry merely respected their judgment and, as family members, trusted their character. As noted above, however, this sort of familial respect and trust does not, in and of itself, rise to the level of a fiduciary relationship. I therefore find that, even if Herbert and Dorothy Wirt did promise to hold Locus in trust for the benefit of Barry and Virginia, the present facts are insufficient to create a constructive trust. Accordingly, I rule that the Plaintiffs hold the fee interest in Locus, free of any rights asserted therein by the Defendant.

I further note that the record is replete with evidence that the 1981 reconveyance of Locus to Herbert and Dorothy Wirt was for valuable consideration, namely their payment of numerous and costly debts incurred by Virginia and Barry relative to Locus without any subsequent repayment of the same.

The parties have submitted requests for findings of fact and rulings of law, which I have considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings and rulings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.


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

[Note 2] Herbert C. Wirt, Sr. died in 1986, leaving sole ownership of Locus in Dorothy P. Wirt, as surviving joint tenant.

[Note 3] Judith L. Torruella is the daughter of Dorothy P. Wirt.

[Note 4] The Defendant contends that, at the time of the reconveyance of Locus to Dorothy and Herbert Wirt in 1981, Herbert and Dorothy promised to hold Locus in trust for her benefit and that of Barry.