REG 19587-S

December 19, 1991

Bristol, ss.



Transfer Memorandum of Unit Ownership No. C-8-Hl and H2 issued by the Bristol Northern District Registry District of the Land Court recites that Anne Burgess is the registered owner of Units Hl and H2 as described in the Master Condominium Certificate of Title and in the Master Deed, Document No. 31929. William Lewis, the plaintiff, who is seeking the issuance of a certificate of title to him based on a sheriff's sale, alleges that the real property is in fact that of John M. Burgess standing in the name of his mother. An execution issued by the Federal District Court against John M. Burgess was noted on said Memorandum, and pursuant thereto a Deputy Sheriff sold any right, title and interest of John M. Burgess to the premises described in the certificate to William H. Lewis. The question now arises as to whether John M. Burgess has any interest in Units Hl and H2. My conclusion is that he does not and that title to the condominium units had devolved pursuant to Mrs. Burgess' will which is not before me.

A trial was held at the Land Court on October 28, 1991 at which documentary evidence was introduced, but no testimony was taken. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. By Unit Deed dated October 16, 1987 William J. Lewis, the present plaintiff, conveyed to Anne Burgess the two units in question for the stated consideration of $10 (see Exhibit No. 3).

2. The plaintiff and John M. Burgess, the son of Anne Burgess, had been engaged in a series of previous deals which culminated in the condominium development in which the two units are located. As described by Judge Lavien in his Memorandum in the Lewis bankruptcy proceedings (Exhibit No. 5).

The venality of both parties has turned these seemingly simple transactions--by privately incorporating a deal for Burgess to buy 14 units at a fixed price--into a tangled mess of knots which the Court, even now, can only partially unravel. Some of the snarls defy logic while some of the others, despite obscurant testimony, unfold because only one conclusion lends itself to an inescapable logical reasonableness.

3. In the bankruptcy proceeding Lewis had claimed Burgess tricked him into signing the deed and Burgess claimed that the house where condominium units are located had been conveyed to Lewis only because of subdivision reasons and was to be reconveyed. Lewis disputed this. Judge Lavien ruled that while there was fraud, there was not a fraudulent conveyance, and he would allow Burgess to keep the premises as his twelfth and thirteenth unit and require him to pay Lewis the agreed upon $129,300.

4. The bankruptcy court's order (Exhibit No. 6) insofar as it relates to the present locus reads in paragraph 2 as follows:

That John Burgess is indebted to William H. Lewis, debtor-in-possession, $193,950, being the unpaid purchase price of three units at $64,650 apiece, namely, Unit 2-2 of the Leedham Farm Condominium and Units H-1 and H-2 of the Leedham Farm Condominium created by the Master Deed dated October 6, 1987 and filed as Land Court Document No. 31929 in the Bristol County Northern Registry District, and that on payment of that sum, William H. Lewis is ordered to provide as a condition for payment a partial release of the mortgage of the Norwood Co-Operative Bank, if it still exists, on the said three parcels.

5. The order established the amounts due from Burgess to Lewis and were framed on the theory that the conveyance to Anne Burgess would not be set aside.

6. There was no determination in the bankruptcy court as to whether the conveyance to Anne Burgess was a gift to her from her son. The presumption between close relatives generally is in favor of finding a gift.

7. At the sheriff's sale the plaintiff was the successful bidder for the locus for the sum of $25,000.

The plaintiff seeks to establish in this proceeding that the two condominium units remain the property of John M. Burgess even though the record title is in his mother. The bankruptcy court refused to set aside the conveyance by Lewis to Anne and left the title as it was. Under the provisions of c. 185 of the General Laws title is in the registered owner until this Court decrees otherwise. Chapter 109A relative to fraudulent conveyances is inapplicable since John M. Burgess did not convey the property to his mother; Lewis did, and Judge Lavien found that there had been fraud, but not a fraudulent conveyance. He made no finding as to whether Lewis knowingly executed the deed. The award of damages included the purchase price of the two units so it would be inconsistent now to disregard the state of the record. In any event there is no evidence before me to justify such a step. The plaintiff failed to bear his burden of establishing that Burgess had not made a gift to his mother. The bankruptcy court had already determined there was no fraudulent conveyance.

Accordingly I find and rule that John M. Burgess having no right, title and interest in the locus at the date of the registration of the execution and the sale of the locus, the plaintiff is not entitled to the issuance of a certificate of title to him; provided, however, that if Mr. Burgess is a devisee under his mother's will and she had died prior to the execution, then Mr. Lewis acquired a fractional interest by his purchase at the sale. After this litigation finally is concluded and all appeals exhausted, the Court will require submission of memoranda as to the proper disposition of the encumbrances noted on said certificate of title.

Judgment accordingly.