GERMAINE A. VALLEY and WILLIAM E. VALLEY vs. BLANCH LETOURNEAU, formerly known as Blanche Valley.

By complaint filed on April 21, 1989, Plaintiffs, pursuant to G.L. c. 240, §6, seek to clear title to property located at 21 Greenwood Street in Amesbury ("Locus"). Plaintiffs further seek damages, pursuant to G.L. c. 183, §55, resulting from the Defendant's failure to discharge a mortgage on Locus. By counterclaim filed May 19, 1989, Defendant seeks a declaration that Plaintiffs hold Locus either in constructive trust or resulting trust for Defendant and the reconveyance of Plaintiffs' interest in Locus to Defendant. Defendant further seeks costs and attorney's fees. [Note 1]

On May 19, 1989, Defendant filed a Motion for Lis Pendens which was allowed and issued on June 9, 1989.

This case was tried on January 9, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Five witnesses testified and twelve exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. By deed dated November 18, 1960 and recorded at the Essex South District Registry of Deeds [Note 2] at Book 4726, Pages 1 and 2, Edward J. Valley and Defendant purchased Locus as tenants by the entirety (See Exhibit No. 11).

2. Plaintiff, William E. Valley is the son of Defendant and Edward Valley. Plaintiffs, Defendant and Edward Valley moved into Locus. Shortly thereafter, Plaintiffs paid rent to Defendants for use of Locus and also did repair work on Locus receiving no cash reimbursement therefor. Edward J. Valley died on November 17, 1964.

3. After Edward Valley's death, Plaintiff, William Valley assured Defendant in general terms that Plaintiffs would take care of her.

4. On December 17, 1965, Defendant married Ernest Letourneau and moved to Upton. In 1982, Defendant separated from Mr. Letourneau and presently lives with her employer Mr. Therberge. They have lived together for eight years and have often travelled together to Florida, California and other locations.

5. On January 22, 1965, Defendant executed a note in the amount of $7,800.00 (Exhibit No. 5A) secured by a mortgage of Locus ("Defendant's Mortgage") to the Amesbury Co-operative Bank ("theBank"). Said mortgage is recorded at Book 5241, Pages 169-171 (Exhibit No. 5).

6. By deed dated November 8, 1966 and recorded at Book 5407, Page 159 ("the Deed"), Defendant conveyed Locus to Plaintiffs as tenants by the entirety. The Deed provided that the conveyance was subject to Defendant's Mortgage "with a present balance of $7,427.02 which the grantees assume and agree to pay" (Exhibit No. 1).

7. Defendant secured the performance by the Plaintiffs of the covenants contained in Defendant's Mortgage, by mortgage dated November 14, 1966 and recorded as Book 5407, Page 160 ("Plaintiffs' Mortgage") (Exhibit No. 2). Plaintiffs' only obligation under Plaintiffs' Mortgage is to perform the obligations of Defendant's Mortgage.

8. On or about November 15, 1988, Plaintiffs satisfied the indebtedness on Defendant's Mortgage by paying the remaining balance due to the Bank and accordingly had no further obligation on either mortgage. By instrument dated December 12, 1988, and recorded at Book 9824, Page 125, the Bank discharged Defendant's Mortgage (Exhibit No. l0A).

9. More than seven days in advance of the filing of the complaint in this case, Plaintiff requested Defendant to discharge the November 14, 1966, mortgage, Defendant has refused to do so.

A mortgage of real estate is, as between the parties, a conveyance in fee, defeasible upon the performance of the conditions therein stated. Pineo v. White, 320 Mass. 487 , 489 (1946). Upon the fulfillment of the conditions of a mortgage, the mortgagor is entitled to the note and a discharge of the mortgage in order to remove a cloud upon the record title. Piea Realty Co., Inc. v. Papuzynski, 342 Mass. 240 , 247 (1961); Pineo at 489. Further, if the obligation underlying a mortgage has been paid or otherwise discharged, the mortgagor may maintain a suit to compel the cancellation of the note and a discharge of the mortgage. Beaton v. Land Court, 367 Mass. 385 , 392-3 (1975); Perry v. Oliver, 317 Mass. 538 , 541 (1945).

In the present case Plaintiffs have clearly fulfilled the conditions of Plaintiffs' Mortgage and Defendant has failed to show that her intention was to convey anything but a fee simple interest in Locus. Further, I rule that Plaintiffs have not been unjustly enriched by the conveyance of Locus. Accordingly Plaintiffs' Mortgage must be and is hereby discharged.

The only evidence of damages presented by Plaintiffs was of their legal fees in bringing this action. While it is true G.L. c. 183, §55 states in part that a mortgagee who wrongfully neglects to discharge a mortgage shall be liable in tort for all damages caused by such neglect, such damages do not generally, in this Commonwealth, include legal fees. Without commenting on the adequacy of Plaintiffs' proof of legal fees, I therefore decline to award damages in this matter and leave Plaintiffs to pursue such remedy under G.L. c. 231, §6F, should they believe that to be appropriate.

Judgment accordingly.