FRANK W. CORMACK vs. JOHN A. ROWLANDS, RICHARD S. EFRON, TRUSTEE OF YORK STREET REALTY TRUST, EASTERN EDISON COMPANY, ALAN HARDIGAN and JOHN F. DAVIS.

This is a complaint by Frank W. Cormack to remove clouds on the title to the premises at 122 York Street in Stoughton in the County of Norfolk. The plaintiff seeks to have expunged from the record in the Norfolk County Registry of Deeds to which all recording references herein refer certain junior encumbrances. However, to the extent the plaintiff's title rests on a certain mortgage foreclosure, then any excess of proceeds over the debt may be owed to third parties. Accordingly I have treated the complaint as one for a declaratory judgment pursuant to the provisions of G.L. c. 231A, §§1 to 9 inclusive rather than as a complaint to expunge documents from the record which is an inappropriate remedy, and the relief sought a determination as to the validity and priority of the parties' claims.

The named defendants have varying interests in the locus. John A. Rowlands is the holder of a second mortgage of record given to him by his former wife Angelika M. Rowlands ("Mrs. Rowlands") pursuant to the Norfolk County Probate Court Divorce Decree No. 83M0252-l (Exhibit No. 34) to secure an oligation by the wife to hold the husband harmless from liability on a mortgage then held by Home Savings Bank. The defendant Richard S. Efron, as Trustee of York Street Realty Trust, is the grantee named in a deed dated October 23, 1985 and recorded in Book 6833, Page 398 (Exhibit No. 19) from Mrs. Rowlands. The defendant Eastern Edison Company is the holder of an execution on the locus and the levy thereon against both Mr. and Mrs. Rowlands dated October 31, 1985 arid recorded in Book 6842, Page 595. There was no prior attachment by the Edison Company. The defendant Alan Hardigan is the buyer named in a purchase and sale agreement with Mrs. Rowlands, and the defendant John F. Davis is the holder of an execution and levy made as against Efron.

A trial was held at the Land Court on October 15, 1990 at which a stenographer was appointed to record and transcribe the testimony. The only witness was David Webster, a member of the Massachusetts bar who has been designated as a Land Court Examiner by the Land Court. A total of 34 exhibits was introduced into evidence which exhibits are incorporated herein for the purpose of any appeal. The only defendant who appeared and contested the plaintiff's action was John Rowlands.

On all the evidence I find and rule as follows:

1. Predecessors in title to the plaintiff and the defendant Rowlands, Carl E. Pistor and Ruth L. Pistor, granted a mortgage to the Home Savings Bank dated December 6, 1967 and recorded in Book 4457, Page 105 (Exhibit No. 10) covering the locus which mortgage has been assigned to the plaintiff by Yankee Bank for Finance and Savings FSA, formerly Home Savings Bank by instrument dated October 8, 1987 and recorded in Book 7765, Page 295.

2. The title passed through mesne conveyances until the premises were conveyed by David Lyons to John A. Rowlands and Angelika-Maria Rowlands, husband and wife as joint tenants (see G.L. c. 184, §7), by deed dated April 25, 1980 and recorded in Book 5728, Page 550 (Exhibit No. 13).

3. By an attachment dated March 16, 1984 and made on April 4, 1984 recorded in Book 6370, Page 749 (Exhibit No. 14) the plaintiff sought to attach the interest of Angelika M. Rowlands in the premises.

4. Shortly thereafter John A. Rowlands and Angelika-Marie Rowlands conveyed the premises to Angelika-Marie Rowlands by deed dated April 4, 1984 (Exhibit No. 15) pursuant to the provisions of their divorce decree.

5. Immediately thereafter and also in accordance with the terms of the Probate Court Divorce Decree set forth above Angelika­ Marie Rowlands granted to her former husband a mortgage in the amount of $7,500 dated April 4, 1984 and recorded in Book 6404, Page 517 (Exhibit No. 16). The execution obtained by the plaintiff against Angelika-Marie Rowlands was levied on and recorded on June 29, 1984 in Book 6438, Page 744 (Exhibit No. 17).

6. Thereafter the property was sold by a deputy sheriff for Norfolk County pursuant to the provisions of the statute, and the premises were conveyed to the plaintiff by Barbara A. Chiasson, a deputy sheriff for Norfolk County, by sheriff's deed dated July 2, 1985 and recorded in Book 6718, Page 448 (Exhibit No. 18). The period of redemption has expired.

7. Angelika-Marie Rowlands subsequently conveyed the property to Richard Efron, as Trustee of the York Street Realty Trust, by deed dated October 23, 1985 and recorded in Book 6833, Page 398 (Exhibit No. 19), but as of the date thereof the plaintiff held record title subject to the two outstanding mortgages and to her right of redemption.

8. The record from the fall of 1985 forward is replete with executions, levies and federal tax liens against Efron as well as a lis pendens, a Massachusetts tax lien and an action for specific performance of a purchase and sale agreement between Mrs. Rowlands and Alan Hardigan (see Exhibit Nos. 21 - 29).

9. The Town of Stoughton subsequently made a tax taking dated April 21, 1988 and recorded in Book 7939, Page 444 against Mr. Efron, as Trustee (Exhibit No. 31) and has filed a petition in this Court to foreclose the taxpayer's right of redemption (Exhibit No. 33). The Court was informed at the trial that the plaintiff intends to pay the real estate taxes due the Town of Stoughton so no question has been raised in these proceedings about the validity of the tax title.

10. The plaintiff alleges that having complied with the so­called Soldiers' and Sailors' Civil Relief Act he has foreclosed the mortgage to Home Savings Bank of which he is the present holder, by entry and the exercise of the power of sale pursuant to the provisions of G.L. c. 244, §14, and that the consummation of this transaction by the delivery of the mortgagee's deed awaits the Court's determination. However, no evidence as to the foreclosure was presented to the Court.

The United States government was not named as a party to this litigation nor was the Commonwealth of Massachusetts or the Town of Stoughton, so no opinion is expressed herein as to the validity of the liens of these governmental bodies.

The plaintiff's claim of priority rests on the foreclosure of the first mortgage held by him on the premises. If he forecloses such mortgage, it will wipe out the interests junior thereto with certain exceptions as to the governmental liens not here material and subject to possible claims to the surplus, if any. It is not clear from this record whether in fact the sale has as yet been made or if made as alleged that there still is a purchaser willing to perform in view of the delay in consummating the transaction. If the plaintiff does not intend at present to foreclose the first mortgage of which he is the holder, he holds title as the grantee at the sheriff's sale subject only to the first mortgage and the second mortgage to the defendant John A. Rowlands executed by the mortgagee's former wife pursuant to the Probate Court Decree. As to the first mortgage I find and rule that it has not merged with the fee interest acquired by the plaintiff. If the plaintiff, as holder of the Home Savings Bank mortgage, elects not to sue the defendant Rowlands for any deficiency thereon, then the mortgage held by Rowlands would appear to be discharged as a matter of law. It is clear from the record that the plaintiff as the grantee named in the sheriff's deed holds an interest prior to those of the other defendants, there being no claim made by any party that either the statute authorizing a sheriff's sale is unconstitutional or that the sheriff did not properly follow the statutory steps.

The interesting question in this action concerns the attachment by the plaintiff of the interest of a joint tenant. The statutes and case law are silent on the validity thereof. However, there is a statute which relates to an execution on the interest of a joint tenant, G.L. c. 236, §12 which provides as follows:

If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant.

The interesting twist of this action is that by the time the execution was granted by the district court, the debtor owned the entire interest in the premises and the execution obviously was valid. If it related back to the original attachment, then the position of the plaintiff clearly would be prior to that of the defendant Rowlands, but I find no law to suggest that this properly can be done. Accordingly the plaintiff must look to the foreclosure of the first mortgage for his priority.

Judgment accordingly.