MISC 129133

April 14, 1992

Middlesex, ss.



This is an action in the nature of writ of entry under the provisions of General Laws Chapter 237 to obtain possession of certain real estate, title to which is dependent upon a levy of execution by sheriff's sale. The controversy pits the plaintiff Gerd C. Teschke against his former wife, Marita M. Keller and the two mortgagees to whom she granted mortgages on real estate at 30 Gray Birch Terrace in Newton, in the County of Middlesex, the former marital home, Meritor Credit Corporation ("Meritor") and University Mortgage Services, Inc. ("University"). The interest of both mortgagees has been assigned to First American Title Insurance Company by instruments dated October 24, 1991 and July 12, 1990 and recorded with Middlesex South District Registry of Deeds to which registry all recording references herein refer (Exhibit Nos. 14 and 15).

A trial was held at the Land Court on January 17, 1992 at which a stenographer was appointed to record and transcribe the testimony. A motion for summary judgment previously had been denied by the Court until the Attorney General was afforded an opportunity to appear if he so elected and to inform the Court of his position relative to the constitutionality of a sheriff's sale pursuant to the provisions of G.L. c. 236, §§26-30. The Attorney General has responded and has taken the position that the recording statutes in and of themselves are sufficient notice and that no further notice to a mortgagee is necessary to apprise it of a proposed sale as is now done in the instance of a mortgage foreclosure. See G.L. c. 244, §14. At the trial the plaintiff called as witnesses Gerd Teschke, M.D., the plaintiff and Orrin P. Rosenberg, formerly Chief Title Examiner of the Land Court and an expert in real estate titles. The defendants called only Alan E. Kunian, an attorney who represented Meritor Credit Corporation in the mortgage financing. Twenty-two exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

The parties entered into a stipulation (Exhibit No. 17) which reads as follows:

1. The real property known as and numbered 30 Gray Birch Terrace, Newton, Massachusetts (the "premises") was conveyed to Gerd Teschke and Marita Keller Teschke, husband and wife as tenants by the entirety, by deed of Stephen L. Rosen and Sheila Rosen dated September 24, 1971 recorded with Middlesex South Registry of Deeds ("recorded" hereafter) in Book 12080, Page 328.

2. By Decree of Middlesex Probate and Family Court, docket 138914, the marriage of Gerd and Marita [was] terminated by divorce.

3. Marita was allowed to resume her maiden name of Marita Keller by virtue of said Decree.

4. A Deed dated June 15, 1982 [was] recorded on June 15, 1982 in Book 14637, Page 176 wherein Gerd Teschke and Marita Keller-Teschke conveyed the premises to Marita Keller, individually, being for consideration set forth in the terms of a Judgment of Divorce Nisi (Middlesex Probate and Family Court, Docket No. 138914).

5. Gerd C. Teschke commenced a civil action against Marita Keller-Teschke by Complaint filed with the Middlesex Superior Court, docket No. 85-5445, on September 11, 1985.

6. A Writ of Attachment wherein Gerd C. Teschke was plaintiff dated September 20, 1985 was recorded on September 20, 1985 in Book 16448, Page 256 in the above referenced civil matter wherein all right, title and interest of the within-named defendant Marita M. Keller-Teschke was attached.

7. Judgment issued in favor of Plaintiff Gerd C. Teschke on December 17, 1986 in the amount of $34,656.00 plus interest and costs in the amount of $125.00 and attorney's fees in the amount of $3,600.00 (total $38,381.00).

8. A mortgage dated February 25, 1987 was recorded on March 3, 1987 in Book 17908, Page 118 wherein Marita M. Keller was mortgagor and Meritor Credit Corporation was mortgagee in the amount of $100,013.92.

9. Marita M. Keller executed a Promissory Note dated February 25, 1987 as Borrower in the amount of $100,013.92 wherein Meritor Credit Corporation was the Lender.

10. As evidence of her identity, Marita M. Keller produced a Massachusetts drivers [sic] license, No. 028464516.

11. An Execution issued by the Middlesex Superior Court (Docket 85-5445) in the amount of $39,611.78 was recorded on April 2, 1987 in Book 17996, Page 373 levying upon the property at 30 Gray Birch Terrace, Newton standing in the name of Marita M. Keller-Teschke.

12. A mortgage upon the premises was granted by Marita M. Keller f/k/a Marita Keller-Teschke to University Mortgage Services, Inc. in the principal amount of $57,600.00 dated May 2, 1987 recorded on May 2, 1987 in Book 18087, Page 362.

13. Marita M. Keller executed a Variable Rate Mortgage Notice in the amount of $57,600.00 dated May 2, 1987 wherein University Mortgage Services, Inc., was Lender.

14. The premises was [sic] conveyed to Gerd C. Teschke by deed of Alfred L. Jacobsen, a Deputy Sheriff for the County of Middlesex, dated July 15, 1987 and recorded on September 4, 1987 in Book 18522, Page 217 for the stated consideration of $41,993.20.

15. Notice of the sale was made by posting a notice of the sale in a public place in the towns of Newton, Watertown and Waltham on April 22, 1987; a notice of the sale was published in the Newton Graphic on May 20, 1987, May 27, 1987 and June 3, 1987 and notice was delivered to the debtor on April 22, 1987.

16. As set forth in the aforesaid notices, the sale was to be held on June 24, 1987 at 3:00 P.M. in the office of the Deputy Sheriff at 99 First Street, Cambridge, Massachusetts.

17. The sale was adjourned by public proclamation on said date and at said place until July 1, 1987 and further adjourned by public proclamation until July 15, 1987.

18. The premises were sold by the Deputy Sheriff at public auction at 99 First Street, Cambridge on July 15, 1987 to Gerd C. Teschke for $41,174.18 plus costs totalling $819.02.

19. The Grantor indices of the Middlesex South Registry of Deeds disclose that the Writ of Attachment by Gerd C. Teschke was indexed only under the name of Keller-Teschke.

20. There was no notice by the Deputy Sheriff or the execution creditor (Gerd C. Teschke) to any creditors of record of Marita Keller or Marita Keller-Teschke.

21. There was no newspaper display advertising at all nor were there legal notices published in any newspaper other than the Newton Graphic.

22. There was no notice by mailing or phone calls to local real estate brokers or interested parties other than the defendant, Marita Keller.

23. There was no publication of the adjournment in any newspaper nor was there public proclamations at the property address of the premises.

24. According to an appraisal dated April 5, 1990 by John Gottschalk of Elliott, Gottschalk & Associates, Inc., the premises at 30 Gray Birth [sic] Terrace, Newton had a market value of two hundred fifty thousand ($250,000.00) dollars.

25. Ford Consumer Finance Company, formerly known as Meritor Credit Corporation assigned its interest in the Mortgage and Note to First American Title Insurance company by instrument dated October 24, 1991 recorded with Middlesex South Registry of Deeds on January 8, 1992 as instrument 648.

I further find and rule as follows:

26. Neither mortgagee was given notice of the sheriff's sale or had actual notice thereof.

27. The Registry indices list the name "Keller-Teschke" separately from the name "Keller" and the name "Teschke". Accordingly an examiner would not find the former name in running the other two. However, the execution and the May 4, 1987 mortgage recorded on May 4, 1987 from Marita M. Keller to University Mortgage Services also appear in the records under the name of Keller-Teschke, the latter because of the dual description of the mortgagor.

The roots of this controversy lie in the marital difficulties between the plaintiff and the individual defendant. Each marital patner was a psychiatrist, but the defendant was more advanced in the profession than her then husband. Presumably this is the reason therefore why the parties entered into a stipulation which was referred to in the divorce decree (Exhibit No. 2) but which was not merged and was to survive and have independent legal significance. The separation agreement in effect awarded alimony to the plaintiff and ultimately support for the couple's daughter. It is the alleged violation in making these payments which gave rise to the Superior Court attachment and execution. After the divorce the defendant had personal difficulties which appear to have led to the default in payments which gave rise to the attachment.

The validity of the attachment as against the mortgages is in the first instance determined by the applicable statute, General Laws c.223, §66 which provides in part that:

no attachment shall be valid against . . . purchasers [in good faith and for value, other than parties defendant] as to any particular parcel of land, or as to any particular leasehold estate . . ., in any case where the name of the owner thereof under which he acquired title thereto as appears on the public records is not included in the writ unless the writ is seasonably amended to include such name and then only from the time when a correspondingly amended copy is deposited [in the Registry of Deeds].

The real question in the present case is not whether the writ gives the name of the defendant Marita M. Keller in either of the names under which she acquired title to the locus. It is clear that it does not. The defendant acquired her interest in the premises by two deeds, one with her husband as a tenant by the entirety from Stephen L. Rosen and Sheila Rosen. This deed (Exhibit No. 1) gives the names of the grantees as Gerd Teschke and Marita Keller Teschke (unhyphenated). There was a hyphen in the defendant's name in the grantee clause as it originally was typed, but it was stricken before recording as were the comparable provisions in the mortgage given by the plaintiff and his then wife to Newton Savings Bank. Accordingly this instrument was indexed only as Teschke as grantee, and it was under this name that a tax taking made by the City of Newton appears. After the divorce decree was entered, the defendant resumed her maiden name as the decree permitted, and the deed from the plaintiff and the individual defendant to her gave her name as Marita M. Keller. As grantor she was described as Keller-Teschke which in fact was incorrect in the light of the deed into the couple.

The Supreme Judicial Court has not interpreted the present Chapter 223, §66. Earlier decisions in this area include Norris v. Anderson, 181 Mass. 308 (1902) which held that there was no statute which provided that an attachment of real estate was ineffectual or void if a defendant was wrongly named in the writ. Thereafter there was a decision interpreting an earlier version of G.L. c. 223, §66, Solomon v. Nessen, 263 Mass. 371 (1928). Dissatisfied with the Solomon result the General Court then again amended §66 so that it appears as above set forth. It has not since been interpreted definitively.

I find and rule that the General Court intended that the writ must set forth the name of the owner of the land sought to be attached in the same manner as it appears in the deeds or probate documents by which the owner took title. In the present case the attachment should have been in the name of Marita Keller Teschke and Marita M. Keller. Perhaps the use of one name or the other would have been sufficient, but that question need not now be determined. The attachment, however, was not in either of these names but was in the hyphenated version of the individual defendant's name, Keller-Teschke. This does not meet the statutory requirements as such an instrument would not be indexed under her correct name (if this is material) or her earlier unhyphenated name. Thus the attachment, the execution and the sheriff's sale have lost their priority as to the two mortgagees if they are purchasers in good faith and for value. This is the real question in this case.

The mortgage to Meritor Credit Corporation came from Marita M. Keller without a reference to another name by which the defendant was known. It clearly falls within the statutory protection. The mortgage to the University Mortgage Services, Inc., however, described the mortgagor by both names so the mortgagee knew that the individual in question was sometimes referred to by her hyphenated name. The plaintiff contends that "University" lost its standing as a purchaser is good faith by use in the granting clause of the mortgage of the name "Keller-Teschke" as an alternative. I hold that under the circumstances here it did. In my opinion the mortgagee must be taken to have constructive knowledge of the attachment. Accordingly I find and rule that only the mortgage to Meritor is protected from the attachment, the execution and sheriff's sale. It may be that University has the benefit of the doctrine of equitable subordination. Under this doctrine creditors who pay prior lienors in full may be entitled to stand in their position of priority to the extent of moneys paid. This question, however, has not been argued.

The question of the plaintiff's right to possession as against the defendant Keller and subject to the Meritor mortgage also has not been fully addressed by counsel, but I find and rule that I am bound by the Superior Court judgment and the attachment as to the defendant in that action. Accordingly the plaintiff is entitled to possession as against his former wife.

There is one remaining question. G.L. c. 236, §28 provides for written notice of the time and place of sale to the debtor and for posting and publishing. It does not, however, require notice of the sale to the holders of mortgages on the locus. The procedure therefore is constitutionally infirm. Christian v. Mooney, 400 Mass. 753 (1987) and Mennonite Bd. of Missions v. Adams, 462 US 791 (1983).

On all the evidence therefore I find and rule that the Meritor mortgage is prior to the plaintiff's attachment; that the University mortgage is not affected by the sheriff's sale of which it had no notice; that the plaintiff is entitled to possession as against Marita M. Keller but not as against the mortgagees; and that the question of equitable subordination has not been determined.

Judgment accordingly.