ROSE M. VIOLETTE vs. JOSEPH NARDUZZO.

Rose M. Violette, the grandmother of the defendant, has brought this complaint to rescind a conveyance from her, as grantor, to herself and Joseph Narduzzo, the defendant, as joint tenants in joint tenancy and not as tenants in common by deed dated May 4, 1987 and recorded with Suffolk Deeds (to which Registry all recording references herein refer) in Book 13682, Page 79 (Exhibit No. 1). The action is grounded on a failure of consideration. The defendant who is the plaintiff's only male grandchild denies that there has been a failure of consideration and also relies on the statute of frauds.

A trial was held at the Land Court on January 14, 1992 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence were incorporated herein for the purpose of any appeal. The plaintiff, her husband Albert Violette and John R. McGrath, an attorney admitted to practice in the Commonwealth testified for the plaintiff. The defendant Joseph Narduzzo and his wife Arlene testified for the defendant. On all the evidence I find and rule as follows:

1. The plaintiff is an 82 year old retired woman in ill health and of mercurial disposition. She resides in a three family home at 150 H Street in that part of Boston, Suffolk County, known as South Boston.

2. The plaintiff and Joseph Costa were married in 1936 and during their marriage purchased the house which is the subject matter of this dispute. The deed to Mr. and Mrs. Costa was recorded in Book 8029, Page 731.

3. After her first husband's death the plaintiff married Albert Violette on June 21, 1975. By agreement with the plaintiff Mr. Violette sold his own home which he had transferred to himself and the plaintiff, gave the proceeds of the sale to the plaintiff and occupies with the plaintiff the first floor apartment in the locus. Mr. Violette also frequently uses the basement apartment, as he is a smoker.

4. Both the plaintiff and her second husband have children of their prior marriages.

5. After her remarriage the plaintiff conveyed the home at 150 H Street to a straw, Mary A. Jackson, by deed dated June 13, 1978 and duly recorded in Book 9127, Page 576. The deed recited the grantor's name as "Rose M. Costa", a widow. Immediately thereafter by deed also dated June 13, 1978 and recorded in Book 9127, Page 577 (the two deeds being Exhibits Nos. 8A and 8B) Mary A. Jackson reconveyed the locus to the plaintiff under the name of Rose M. Violette.

6. The defendant has lived in the locus for many years. After his return from the service he first occupied the basement apartment and later moved to the second floor. He is now married and has two children of his own. During the entire period of his occupancy the defendant and his wife after his marriage paid rent to the plaintiff up until November of 1990. The defendant now contends that payments after the conveyance by which title was transferred to the plaintiff and defendant as joint tenants did not constitute rent as he was a co-owner but rather were payment of expenses incurred by an owner. I find and rule that the payments continued to be rent or in the nature of rent.

7. In 1987 after some family discussion as to the ultimate ownership of 150 H Street should the plaintiff die, the plaintiff decided to have the property transferred to herself and her grandson as joint tenants. Counsel explained to her the perils of proceeding with this course and also suggested that provision be made for a life estate for her husband.

8. The plaintiff in typical headstrong action rejected counsel's advice and elected to consummate the conveyance and not to include a life estate. The plaintiff, however, made it clear to her grandson, as did the attorney, that the conveyance was being made to him in consideration of his agreement to continue to pay rent for the premises or a sum equal to the rent thereof and also to pay one half of all the expenses commonly incurred by an owner.

In addition, and also a part of the agreement was the defendant's undertaking to assist Mr. Violette who at this time was 75 years of age in maintaining and repairing the property. The defendant also was to help to shovel snow.

9. Shortly after the conveyance to the plaintiff and defendant as joint tenants the defendant attempted to obtain a mortgage on locus; he was, of course, unsuccessful.

10. The plaintiff consistently increased the rent unilaterally payable by the defendant and his wife without right. The defendant has not objected to this practice, however, and if the defendant elects to remain in the premises and not to terminate his tenancy, the plaintiff can be instructed by counsel as to the appropriate method to increase the rent of a tenant at will. The defendant continued to make these payments, as noted above, until November of 1990 when he suffered financial reverses.

11. Whenever during the period from May of 1987 to November of 1990 the plaintiff attempted to obtain from the defendant his share of the expenses, he always had an excuse for not stopping to confer with her. He never paid any part of the expenses.

12. The condition upon which the conveyance was made also included an undertaking by the defendant to assist the plaintiff's husband in making repairs to the property and in maintaining it. Although he was requested to assist in shingling a portion of the premises, in making repairs with cement and otherwise, he refused. The third floor tenant was pressed into service on some occasions, but the plaintiff's blood relative refused to help, and certainly he never volunteered.

13. The defendant told the plaintiff in December of 1990 that if he paid the rent to her he would not be able to afford Christmas gifts for his children, and she reluctantly either forgave the payment or authorized him to make it late. He never has resumed payments.

14. At some point the defendant's son, the plaintiff's great­grandson, told her that his father had no obligation to make further payments to her since he was a part owner of the property.

15. During some maintenance work done by the plaintiff's husband which consisted of scraping paint and then replacing it, the defendant or someone on his behalf filed a lead paint complaint with the city. At this point he apparently forgot that he was a part owner of the premises and might well incur liability together with his grandmother.

16. No reconciliation apparently being possible between the parties, this complaint was filed on March 1, 1991. The plaintiff seeks to rescind the conveyance for failure of consideration.

This is another unfortunate instance of family disputes triggered by second marriages where each partner has grown children. It would appear that the plaintiff originally was motivated to make the conveyance in order to attempt to keep the locus in the Costa family, although the fairness of this in the light of the treatment of the plaintiff's husband's home is debatable but of no concern to the Court. The stated motive for the conveyance, that the defendant was to assist the plaintiff's husband in the maintenance of the property and to help bear the expenses of it in addition to her obligation to continue to make "rental" payments, was a condition of the conveyance and certainly one of the reasons why it was made in view of the age of the plaintiff and her husband and their physical conditions. The defendant understood that this was the consideration and the question as to whether he paid the plaintiff the one dollar recited in the deed or not has no legal significance and is merely a red herring.

The rule in such cases is stated clearly in the Appeals Court decision in Vincent v. Torrey, 11 Mass. App. Ct. 463 , 466-468 (1981) where the court stated that rescission or restitution was available as relief on the ground of the serious failure of the continuing consideration to be provided. I find that for the same reason the failure of the defendant to perform the obligations for which he was granted an interest as joint tenant in the premises constitutes a failure of consideration entitling the plaintiff to rescission. Accordingly I find and rule that the 1987 deed from the plaintiff to herself and the defendant as joint tenants is cancelled and rescinded and that a copy of the judgment is to be filed for record in the Suffolk County Registry of Deeds together with the deed from the defendant to the plaintiff conveying any interest he may have in the premises which he is ordered to execute. Harvey v. Crooker, 267 Mass. 279 , 283-285 (1929). The statute of frauds is no bar to a contract performed by one party but not the other.

The plaintiff has submitted requests for findings of fact and rulings of law, but since I have made my own expressed findings and rulings I do not deal with the plaintiff's request individually.

Judgment accordingly.