REG 1684-S

March 31, 1992

Suffolk, ss.



By complaint filed January 5, 1989, Plaintiff seeks a declaration of his rights in a parcel of registered land in the Mattapan section of Boston ("Locus") and requests that the Court order Defendant to convey to him a two-thirds interest in Locus.

This case was tried on October 17, 1991, at which time the trial 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. Plaintiff and Defendant both submitted Post-Trial Memoranda.

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

1. Locus is located at and known as 18 Greendale Road in Mattapan. Locus contains a three story structure ("the Structure") consisting of three apartments. Plaintiff's son lives in the first floor apartment, Plaintiff lives in the second floor apartment and Defendant lives in the third floor apartment.

2. Plaintiff, a general contractor, moved into the second floor apartment, sometime in the early 1970's after the Structure had been damaged by fire. Plaintiff made a number of repairs thereto. While Plaintiff testified that he had purchased Locus from a James Saucer, Jr. for $1 and had received a deed, the deed was not recorded nor was it introduced at trial. Plaintiff has apparently not paid taxes on Locus nor taken any action in that regard.

Plaintiff and Defendant met when Defendant was about 14 or 15 years old. Plaintiff took care of Defendant and a close relationship developed between the two. At some point, Defendant entered the U.S. Marine Corps. In the summer of 1981, soon after Defendant was discharged from the Marines, he moved onto Locus, where he presently resides. After moving in, he contributed to the renovation of the Structure.

3. On April 5, 1972, James and Betty Saucer had acquired Locus. On July 23, 1982, the City of Boston took Locus from James and Betty Saucer for failure to pay taxes thereon.

4. Later in 1982, the City of Boston held two auctions for the sale of Locus. At the first auction, on October 6, 1982, Defendant made a high bid of $5000, but was unable to make the necessary payments and the sale was cancelled. At the second auction, on December 15, 1982, Defendant successfully bid on Locus for $3,700. Inasmuch as Defendant was $700 short, he obtained a loan in that amount from James S. Cooper ("Cooper"). Defendant was helpful, if not instrumental in arranging the loan. As security for the loan, the property was purchased in the name of Cooper and Defendant as tenants in common. The purchase is evidenced by Transfer Certificate of Title Number 95463.

5. Sometime, presumably in 1987, Defendant repaid Cooper, who then conveyed Locus to Defendant individually. See Transfer Certificate of Title Number 100844.

6. After purchasing Locus, Defendant received no rent payments from Plaintiff, and in the late 1980's began an eviction proceeding against Plaintiff.

While Plaintiff alleges an oral agreement with Defendant that based upon Plaintiff's arranging the loan from Cooper, Defendant would convey Plaintiff at least an interest in Locus on demand, I find no credible evidence that such oral agreement was made between Plaintiff and Defendant or if such oral agreement was made, insufficient evidence to overcome the limitations imposed by G.L. c. 259, §1, the Statute of Frauds. Moreover, Plaintiff paid no taxes on Locus from his alleged purchase from Saucer until the tax taking, a period of approximately ten years.

G.L. c. 259, §1, provides, in pertinent part:

No action shall be brought:

. . . upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them; . . .

Unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.

As I have ruled above, even assuming, ad arguendo that an oral agreement had been entered into, it would have been void, under G.L. c. 259, §1. Sprague v. Kimball, 213 Mass. 380 (1913); Southwick v. Spevak, 252 Mass. 354 (1925); McDonald v. Conway, 254 Mass. 429 (1926); First National Bank of Boston v. Fairhaven Amusement Company, 347 Mass. 243 (1964).

Further, Plaintiff cannot seek to enforce the alleged oral promise on a theory that the promise created an express trust in his favor. G.L. c. 203, §1 provides, "No trust concerning land, except as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party declaring or creating the trust." Ranicar v. Goodwin, 326 Mass. 710 , 713 (1951).

Plaintiff argues that either a resulting trust has arisen by implication or a constructive trust should be imposed by the Court.

However, while a resulting trust may arise by implication of law when the transfer of property is made to one person and the purchase price is paid by another, Howe v. Howe, 199 Mass. 598 (1908), and may be imposed in favor of the person who paid the purchase price. Meskell v. Meskell, 355 Mass. 148 (1969), in the present case, Plaintiff makes no claim nor presents credible evidence that he made such contribution and accordingly, no resulting trust can arise on the facts herein.

A constructive trust is imposed in order to avoid unjust enrichment of one party at the expense of another where legal title to property is obtained by fraud, or in violation of fiduciary obligations or where confidential information is used to the advantage of the recipient at the expense of one who discloses such information. Coelho v. Coelho, 2 Mass. App. Ct. 433 (1977). In the present case, however, I find that none of those criteria have been established.

In summary I find that no oral agreement existed between Plaintiff and Defendant with regard to Plaintiff obtaining an interest in Locus and Plaintiff has not obtained such an interest through a resulting or constructive trust, and, accordingly, I find that Plaintiff has no present ownership interest in Locus.

Judgment accordingly.