The underlying action was a writ of entry brought by Peter E. Boniface to obtain possession from the defendant Lewis E. Zorzy of premises in Peabody in the County of Essex, Boniface having purchased the premises at a Sheriff's Sale. The action was disposed of by an Agreement for Judgment requiring Boniface to pay to Zorzy $60,000.00 (plus accrued interest, if any) in exchange for delivery of a deed conveying any interest Zorzy had in the premises, and by a separate supplemental Agreement in June of 1990 further outlining terms. However, Boniface allegedly was unable to obtain the financing to perform his agreement. A post-judgment motion was filed to order Boniface to perform his obligation on which no action was taken by the Court. A second motion was filed by the defendant Zorzy to vacate the judgment pursuant to Massachusetts Rule of Civil Procedure 60(a) which was allowed September 24 of last year, as Boniface had not paid to Zorzy the $60,000.00 required by the Agreement for Judgment. Finally, a Finding and Order of Approval of Attachment was entered September 24, 1990 also on Zorzy's motion. Approximately four months later the parties filed a Stipulation of Fact, the releant portion of which is set forth below, as well as excerpts of the various stipulations made by the parties. The second action was filed by Mr. Zorzy seeking the $60,000.00 plus interest called for under the other Land Court case as damages for Mr. Boniface's failure to perform.
A trial was held on June 5, 1991 at which the parties submitted to the Court the stipulation of facts. No stenographer was appointed to record and transcribe the proceedings. Rather they were electronically transcribed. Each counsel then submitted the matter for resolution by the Court on the basis of the agreements reached in 1990 and the 1991 stipulation.
On all the evidence I find and rule as follows:
1. The original Agreement for Judgment of June a, 1990 read in relevant part as follows:
NOW COMES the Parties to this action and request that Judgment enter in this case as follows:
1. That writ of entry requested by the Plaintiff be allowed.
2. That Defendant waives any and all rights of redemption that he may have under G.L. c. 236 or any other General or Special Law.
3. That Defendant's counterclaim is dismissed with prejudice.
4. Each side shall bear their own attorneys' fees and costs.
5. Judgment shall not enter until such time as $60,000.00 has been paid, in good funds, to the defendant, Lewis E. Zorzy by the plaintiff Peter Boniface.
2. The Agreement for Judgment was based on a Statement of Agreed Facts also filed that day with the Court and is as follows:
NOW COMES the Parties to his [sic] action and stipulate to the following facts:
1. On or about March 30, 1974, an execution was issued by the Boston Municipal Court in the amount of $11,431.48 against the Lewis E. Zorzy. . . .
2. After notice, a Sheriffs sale was held on July 19, 1974, wherein Peter Boniface and Franklin Fink, as Trustees of B & F Realty Trust, purchased the real property at 119 Foster Street, Peabody, Essex County, Massachusetts.
3. A Sheriffs Deed was granted to Boniface and Fink, Trstess [sic], and duly recorded on August 13, 1974 at the South Essex District Registry of Deeds, Book 6090, Page 96, as required by G.L. c. 236 . . . .
4. Boniface and Fink were tenants in possession of the property at the time of and subsequent to the Sheriffs sale.
5. At no time did Zorzy attempt to redeem the property in accordance with G.L. c. 236.
6. On October 3, 1975 B & F Realty Trust conveyed said property to Peter Boniface individually, by deed recorded at the Essex South District Registry of Deeds, Book 9366, Page 288.
7. There is an alleged defect in Plaintiff's title due [to] the absence of a record writ of entry.
8. The Defendant withdraws his objections to the writ of entry issuing and further waives any rights to redeem he may have pursuant to G.L. c. 236.
3. A handwritten supplemental "Agreement" of even date was entered into by the parties but never filed with the Court. Nevertheless it stated in relevant part:
Agreement made this 8th day of June, 1990 by and between Lewis E. Zorzy and Peter E. Boniface. In consideration of the mutual covenants and representations contained herein the parties agree as follows:
l. Peter E. Boniface to tender payment in the amount of $60,000.00 within sixty (60) days of the date of this Agreement in good funds.
2. Interest to accrue beginning 31 days from the date of this Agreement on said payment of $60,000.00 at the rate of 1.5% per month if said payment is made more than thirty (30) days from the date of this Agreement.
3. Agreement for Judgment; Statement of Agreed Facts; and Judgment and Order submitted to the Land Court June 8, 1990; Docket No. 126404 Misc.
4. Judgment to issue upon payment of funds as provided herein.
5. Atty. Joseph P. Corona to hold deed from Lewis E. Zorzy to Peter E. Boniface and Termination of Trust in escrow pending payment of funds as provided herein.
4. The defendant's motion to vacate the judgment pursuant to Massachusetts Rule of Civil Procedure 60(a) was allowed in Miscellaneous Case No. 126404 on September 24, 1990.
5. Subsequently, a Stipulation of Facts by Both Parties was filed with the Court January 24, 1991 which provided in part:
6. On June 8, 1990, the counsel for the parties to this action were present in Court with a proposed Stipulation of Agreed Facts and the Agreement for Judgment, referred to in paragraph 1 hereof which had been prepared prior to that date and reviewed by counsel.
7. On June 8, 1990, prior to presenting the Agreement For Judgment to the Court, counsel for Plaintiff advised the Defendant's counsel that his client estimated he would need sixty days to obtain funds.
8. After discussing the matter counsel for the parties signed a handwritten document entitled "Agreement" . . . and modified the previously executed Agreement For Judgment adding the following paragraph:
"5. Judgment shall not enter until such time as $60,000.00 has been paid in good funds, to Defendant Lewis E. Zorzy by the Plaintiff Peter Boniface."
9. The Agreement For Judgment was accepted by the Court on June 8, 1990.
10. On or about August 8, 1990, counsel for the Plaintiff advised counsel for Defendant by letter referred to in paragraph 3 hereof and attached hereto as Exhibit "C", that dispite [sic] his diligent efforts Plaintiff was unable to obtain the required financing.
The more recent of the two Miscellaneous Land Court cases relies heavily on the facts and posture of the earlier case. Each case recognizes the delivery of the deed in escrow as provided in the Agreement for Judgment, and the nonpayment by the plaintiff of the $60,000 plus interest. The problem facing the Court is the appropriate resolution of the stalemate.
The plaintiff Boniface argues that the modification to the Agreement for Judgment in effect made the contract subject to his ability to perform, that in good faith he has been unable to do so and that accordingly the Agreement for Judgment is nugtory, and the underlying action now should be tried. This approach is untenable. The present posture of the case now resembles an action for specific performance in which a seller seeks to enforce a purchase and sale agreement covering real estate in which he is prepared to deliver a deed in return for payment by the buyer. Financial inability to perform is no defense in such an action. Similarly here it is my opinion that paragraph 5 to the Agreement for Judgment was intended to protect the defendant Zorzy and may be waived by him as to the entry of judgment. Accordingly I find and rule that judgment in the amount of $60,000 due from the plaintiff to the defendant together with interest at the rate of 1.5% per month commencing July 8, 1990 may be entered and upon such entry the deed from the defendant to the plaintiff shall be released from escrow and delivered. Alternatively the defendant may elect within thirty days after the entry of the judgment to rescind the Agreement and mark the action up for a hearing on money damages.