TRACY STROTHER vs. ALAN PERL, JACOB T. PERL and FLEET NATIONAL BANK.

By petition filed with the Land Court on February 11, 1988, the Plaintiff, Tracy Strother ("Plaintiff"), as surviving joint tenant by the entirety, seeks to expunge certain encumbrances noted on Certificate of Title No. 7097 ("Certificate") (Exhibit No. 1), which Certificate was issued to Richard A. Strother and Tracy Strother (collectively referred to as "the Strothers"), as tenants by the entirety, by the Bristol County Northern District Registry of Deeds, Registered Land Section, [Note 1] on November 3, 1981. [Note 2] The encumbrances which the Plaintiff seeks to have expunged are as follows:

1. The Attachment of the Defendant, Alan Perl, dated January 4, 1983 and approved on January 19, 1983, noted as Document No. 22454 on the Certificate;

2. The Attachment of the Defendant, Jacob T. Perl, dated January 4, 1983 and approved on January 19, 1983, noted as Document No. 22455 on the Certificate;

3. The Seizure of the Defendant, Fleet National Bank ("Fleet"), dated September 26, 1983, noted as Document No. 23345 on the Certificate; [Note 3]

4. The Seizure/Execution of Jacob T. Perl, dated January 14, 1985, noted as Document No. 25157 on the Certificate;

5. The Seizure/Execution of Alan Perl dated January 14, 1985, noted as Document No. 25158 on the Certificate;

The Plaintiff asserts that said Attachments and Seizures were made against Richard A. Strother for debts incurred by his former business, Metropolitan Mobile X-ray, Inc. ("Metropolitan"), and not for debts related to "necessaries" of the Plaintiff as defined by G.L. c. 209, §1.

A trial was held at the Land Court on November 29, 1988, at which a stenographer was appointed to record and transcribe the testimony. Three witnesses testified and eight exhibits were admitted into evidence. All exhibits are incorporated herein for the purpose of any appeal.

On all of the evidence, I find as follows:

1. In 1979, Richard A. Strother began a business known as Metropolitan Mobile X-ray, Inc., in which business the Plaintiff had little, if any, involvement. Alan Perl joined Metropolitan as an on-staff radiologist in about December of 1980. From 1981 until Metropolitan's discontinuance in 1982 , Alan and his brother, Jacob Perl (collectively referred to as "the Perls"), extended business loans to Metropolitan, certain of these loans being evidenced by two checks made out to Metropolitan, drawn on the Perls' account entitled "Cash Reserve Management, Inc.", dated October 13, 1981 (Exhibit No. 5) and October 20, 1981 (Exhibit No. 7), in the amounts of fifty-one hundred dollars ($5,100.00) and fifteen hundred and thirty dollars ($1,530.00) respectively. The reverse sides of both of these checks are duly endorsed "For Deposit Only, Metropolitan Mobile X-ray, Inc."

2. On October 13, 1981, the Perls issued a check in the amount of seven thousand dollars ($7,000.00) to Richard Strother (Exhibit No. 6). This check was drawn on the Perls' "Cash Reserve Management, Inc." account. Subsequently, on October 30, 1981, the Perls issued an additional check, drawn on the same account, to Richard Strother (Exhibit No. 6). This check was for the sum of six thousand dollars ($6,000.00). The reverse sides of both of these checks bear what purports to be the personal endorsement of Richard A. Strother.

3. On November 2, 1981, Francis A. DeSantis conveyed a parcel of improved real estate located at 38 Westwood Park Circle in Attleboro, Massachusetts ("property") to the Strothers for the sum of sixty-six thousand dollars ($66,000.00) (Exhibit No. 3). The property served as the Strothers' principal residence.

4. The Strothers attained part of the necessary financing for the purchase of the property through a first mortgage in the amount of forty­one thousand dollars ($41,000.00) and a second mortgage in the amount of twelve thousand dollars ($12,000.00).

5. The balance of the purchase price, thirteen thousand dollars ($13,000.00), was paid by the Strothers, personally, using funds lent to them by the Perls for the specific purpose of purchasing the property. These funds are evidenced by the two checks totalling $13,000.00 made out to Richard Strother in 1981, as described above in Finding No. 2.

6. On January 4, 1983, Alan Perl filed a complaint in the District Court Department, First Bristol Division, seeking a Writ of Attachment against the goods of Richard A. Strother in the amount of eight thousand dollars ($8,000.00). The Attachment was approved by Dooley, J. on January 19, 1983.

7. On January 4, 1983, Jacob T. Perl filed a complaint in the District Court Department, First Bristol Division, seeking a Writ of Attachment against the goods of Richard A. Strother in the amount of nine thousand dollars ($9,000.00). The Attachment was approved by Dooley, J. on January 19, 1983.

8. On January 14, 1985, Dooley, J. issued Writs of Execution with respect to the aforesaid Attachments.

9. On October 25, 1987, Richard A. Strother died (see Exhibit No. 2), leaving the Plaintiff as surviving joint tenant by the entirety of the property located at 38 Westwood Park Circle in Attleboro.

Massachusetts General Laws Chapter 209, section 1, expressly provides in part as follows:

. . . The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debt or spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be jointly or severally liable for debts incurred on account of necessaries furnished to either spouse or to a member of their family. (emphasis added)

See also Peebles v. Minnis, 402 Mass. 282 (1988). "Necessaries" include "food, drink, medical attention, and a suitable place of residence". BLACK'S LAW DICTIONARY 927 (5th ed. 1979). Accordingly, the property involved herein falls within the definition of "necessaries" as used in G.L. c. 209, §1 and is subject to the provisions of the same. A review of the evidence before the Court, and the reasonable inferences which may be drawn therefrom, warrants a finding that the Perls did in fact contribute a portion of the purchase price for the Strothers' residence. I thus rule that the Attachments and Seizures/Executions were properly noted on the Certificate and constitute valid encumbrances thereon, inasmuch as the debt to which they relate was incurred for purposes of acquiring "necessaries".

Between 1981 and 1982, the Perls advanced certain sums of money to Metropolitan Mobile X-ray, Inc. During this time, the Perls' also advanced certain monies to Richard Strother, personally. The evidence indicates that the funds specifically lent to Metropolitan were deposited into a business account, whereas those funds lent to Richard Strother, individually, were endorsed by him and presumably either cashed by him or deposited into a personal account. Interestingly, although the Plaintiff asserts that her mother and mother-in-law, together, contributed $10,000.00 to the purchase price, and that she and her husband contributed $3,000.00 of said price from their own personal savings, there were two checks totalling $13,000.00 which were drawn on the Perls' "Cash Reserve Management, Inc." account and issued to, and endorsed by, Richard Strother, personally, just two weeks prior to the closing on the property. The conclusion that the funds supplied by the Perls were put towards the purchase of the Strothers' home is thus more logically consistent with the evidence before the Court than the explanation proffered by the Plaintiff.

In consideration then of the amount of the checks issued to Richard Strother in his individual capacity by the Perls, the date of their issuance and the fact that said checks were endorsed by Richard A. Strother and not deposited into Metropolitan's business account as were those checks specifically issued to Metropolitan, I find that the two checks which the Perls issued to Richard A. Strother in October of 1981 comprised $13,000.00 of the purchase price for the Strothers' residence, and rule accordingly that the encumbrances placed upon the Certificate by the Perls are valid and, pursuant to G.L. c. 209, §1, the Plaintiff remains liable to the Perls for payment of this debt and the interest which has accrued thereon, as it relates to the purchase of "necessaries."

Judgment accordingly.