LILLIAN B. MALVESTI, Trustee of A & M Realty Trust vs. MICHAEL E. TIERNEY, Trustee of Tierney Realty Trust.

This suit was filed on or about April 3, 1991 by Plaintiff, Lillian B. Malvesti, Trustee of A & M Realty Trust (Plaintiff or Malvesti) wno seeks to set aside a transaction whereby Michael E. Tierney, Trustee of Tierney Realty Trust (Tierney or Defendant) conveyed to Plaintiff the land and buildings thereon at 81 Park Street, Rockland, Massachusetts (locus), and for which Tierney received partial payment by a note and "purchase money" mortgage. Plaintiff alleges fraud on the part of the Defendant in that locus contains a building which Plaintiff claims encroaches in part on an adjacent parcel and which encroachment Plaintiff further claims was known to Defendant. On May 2, 1991, Tierney filed a counterclaim seeking a judgment against Plaintiff for the money due on aforesaid note.

This matter was tried on December 4, 1991 at which time a stenographer was appointed to record and transcribe the testimony. Three witnesses testified and seven exhibits were entered into evidence all of which are incorporated herein for the purpose of any appeal.

In addition, the matter has been briefed by counsel. On consideration of the pleadings, evidence and arguments of counsel, I find the following:

1. Locus is situated at 81 Park Street, Rockland, Massachusetts and is bounded on the east by land and a building known as 234 Howard Street. The Howard Street property being located at the corner of Park and Howard Street. There is a building on locus which Plaintiff alleges encroaches onto the 234 Howard street lot.

2. On July 2, 1985, on Sacco conveyed locus to Defendant. At the time Sacco was also the owner of 234 Howard Street.

3. In August 1987, Plaintiff and Defendant entered into a "Standard Form" purchase and sale agreement (Exhibit 1) which Plaintiff agreed to purchase locus for $150,000.00. Pursuant to this agreement, Malvesti had an examination of locus performed in conjunction with G.L., Ch. 21E, and on April 5, 1988 received the report, which contained a "not to scale" site plan (Exhibit 5). This plan shows no encroachment.

4. On May 3, 1988, Defendant sold locus to Plaintiff and in partial payment therefore Plaintiff delivered Defendant a note in the amount of $120,000.00, which note was secured by a mortgage on locus. At this time, Sacco still owned the adjacent property.

5. On January 10, 1989, Sacco commenced an action in this Court (Miscellaneous Case No. 132028) seeking a resolution of the alleged encroachment. On October 1990, Malvesti defaulted on the mortgage.

6. There is no competent evidence before this Court of an encroachment of the building on the locus onto the adjacent lot, nor is there credible testimony that Tierney knew of the alleged encroachment prior to his sale to Malvesti. Plaintiff relied on two exhibits to prove the encroachment Exhibit 5 - the "2lE" report, which as found above, contained a site plan showing no encroachment and Exhibit 7 a plan, dated June 17, 1988, presumably prepared for one Bradley E. Blood, not a party hereto, which plan does not have an engineer's seal, is incomplete and contains certain ambiguities. In any event, it is clear that this plan, dated June 17, 1988, was not available or known to Defendant at, or prior to, the May 3, 1988 closing.

The deed from Sacco to Tierney is not in evidence; however, assuming the language of Exhibit 2 (the Tierney-Malvesti deed) follows that of the deed, it is clear that Sacco intended to convey the entire lot and building to Tierney and it may well be that Sacco would be estopped from claiming an encroachment obviously caused by himself. Sacco, however, is not a party to this action and appears to have disposed of the Howard Street property. How these matters may effect Miscellaneous Case No. 132028 will be determined when and if that matter is reached for trial.

In short, Plaintiff has not sustained her burden of proof that Tierney was aware of this alleged encroachment; if in fact one exists, that he made any material misrepresentation of fact intentionally or recklessly or that she relied on such misrepresentation to her detriment. Accordingly, Plaintiff's complaint must be and hereby is dismissed.

The aforesaid purchase money note is due and payable in the amount of $126,764.25 with interest accrued subsequent to February 26, 1992 less any payments made since then.