MISC 170937

November 9, 1992



Plaintiff seeks a declaration that she has title to property (Locus) on Providence Street, Millville. She also seeks to enjoin Defendant from evicting her. Plaintiff originally also sought to have her homestead rights in Locus affirmed but at the hearing counsel waived the homestead claim. Defendant counterclaimed for a writ of entry. The action turns on the validity of a 1990 Sheriff's Sale of a larger parcel which included Locus.

Both parties have moved for summary judgment. Defendant submitted an Affidavit of Richard M. Butin, its Senior Bond Claims Examiner, incorporating various documents. Plaintiff submitted attested copies of various registry documents, which I accept as there appears to be no dispute as to them. Finally, counsel stipulated to various matters at the hearing on the cross motions, September 30, 1992. Counsel stipulated, among other things, that there are no disputes as to any material facts in this matter, and I so find. I further find and rule for Defendant as follows (references to Exhibits being to the Exhibits contained in the "Attested Document List In Support of Peerless Insurance Company's Motion for Summary Judgment and In Opposition to The Motion For Summary Judgment of Constance LaChance"):

1. By deed dated October 21, 1976, recorded at Worcester District Registry of Deeds (all recording references in this Decision are to that Registry) at Book 6103, Page 48, (Exhibit 25) Roland J. LaChance and Plaintiff conveyed to Plaintiff about 200,000 square feet of land on the northeasterly side of Providence Street, Millville.

2. That land was later shown on a plan (the 1980 Plan) prepared for Plaintiff entitled "Subdivision of Land for Constance A. LaChance, Millville, Mass." dated January, 1980, recorded at Plan Book 488 Plan 5 (Exhibit 3). It showed four numbered lots and a new way, Mansfield Drive.

3. By December, 1983, Plaintiff had conveyed out the areas shown as Lots 1, 2 and 3 on the 1980 Plan.

4. Plaintiff was tax collector for the Town of Millville. Defendant bonded Plaintiff's faithful performance of her duties and in 1983 was obliged to pay a claim on the bond. Defendant thereupon sued Plaintiff in the Fourth District Court of Eastern Middlesex (later transferred to the Worcester District). In connection with that action Defendant attached Plaintiff's interest in any real estate in Millville, Exhibit 8, recorded at Book 8051, Page 246. Of the property shown on the 1980 Plan, the attachment, effective January 10, 1984, caught only Lot 4. The attachment also caught other property not involved here.

5. By plan (Exhibit 4) entitled "Division of Land for Constance A. Lachance, Millville Mass." dated March 1985 recorded at Plan Book 53 Plan 104, Lot 4 was itself subdivided into three lots, numbered 4, 5 and 6.

6. By deed dated August 24, 1985, Plaintiff conveyed Lot 5 on the 1985 plan to Therese S. LeBarre. That deed was not recorded until April 7, 1989, (Exhibit 13), Book 12023, Page 355.

7. On April 5, 1989 the Execution in the District Court action issued (Exhibit 11). On April 21, 1989 the Worcester Deputy Sheriff levied on the Execution, Book 12051, Page 139 (Exhibit 14). On October 2, 1990, there was a Sheriff's Sale, at which Defendant bid in Lot 4 as shown on the 1980 Plan (that is, the original lot 4), for $57,567.18. Defendant took title by Sheriff's Deed (Exhibit 9) dated November 23, 1990, recorded at Book 13142, Page 44. Lot 4 is Parcel One in that deed. Plaintiff acknowledges having received notice of the impending Sheriff's Sale and that she had a year in which to redeem the property (Deposition, Exhibit 12).

8. Exhibit 11 is a copy of the Execution and the Sheriff's Return. The return is dated April 21, 1989 and includes the statement: "...I therefore return this Execution Satisfied in the Full Amount of $57,567.18, leaving a balance due on the Execution of 0.00." Although dated April 21, 1989, the Execution and Return were not returned to the District Court until April 13, 1992.

9. Plaintiff's objections to Defendant's title and my rulings as to them are as follows:

a. G. L. c. 236 (Chapter 236), 53 requires notice to the debtor and an appraisal of the land; §6 elaborates the appraisal requirement. I conclude that the notice required by §3 is notice that the debtor may choose an appraiser, assuming that the creditor has elected to levy by set-off instead of levying by sale. See Blanchard v. Brooks, (1831) 29 Mass. 47 , 12 Pick. 47 . In addition, the Sheriff's Return indicates that the Sheriff notified Plaintiff of the impending sale. Since Defendant proceeded to levy by sale, instead of by set-off, the Sheriff's failure to have Locus appraised, under §6, does not avail Plaintiff.

b. G. L. c. 235 §17 provides in part: "All executions shall be returned to the court issuing them within ten days after their satisfaction or discharge." Defendant admits that was not done. The Execution was in fact not returned to the Court until April 13, 1992. The ten day provision is intended to protect the debtor against multiple levies. Section 17, in fact deals with the situation where the return is not made within the ten days. The second paragraph of that section provides:

"If an execution having been satisfied in full or discharged by law is not returned within ten days thereafter with an endorsement showing such satisfaction or discharge or is returned without such endorsement the court issuing it may upon motion of the judgment debtor or any person in his behalf order it to be returned or the proper endorsement made thereon, as the case may be. The court may order the return of an execution and the endorsement of any partial satisfaction thereon. The fact of a return of an execution and its satisfaction shall be entered upon the records of the court."

In Ellis v. Lyford, 270 Mass. 96 (1930), the Supreme Judicial Court, considering exactly the same objection raised by Plaintiff here, ruled that the late returned execution was valid as against the debtor; "the statute (is) merely directory ..." (at p.100)

c. Plaintiff also points to §27 of Chapter 236 (which does deal with levy by sale) and to the case of Medeiros v. Medeiros, in this Court, Miscellaneous Case 125280, in which a Sheriff's Deed was found invalid. However, the point of the Mederios case was that the return had never been made. Section 27 states: "Such deed shall, if the execution with the return thereon has been returned, be valid as against the debtor or any person claiming under him who has actual notice thereof ..." In this case the return was made, albeit about 18 months after the sale. For the validity of such a delayed return, I cite Ellis, above, and Firth v. Haskell, 148 Mass. 501 (1899), where the Supreme Judicial Court upheld a return made seven years after the sale.

c. §21 of Chapter 236 requires that the execution and return be returned to the Court and that it be recorded in the registry within three months after the levy has been completed. Plaintiff complains that Defendant failed to comply with this section. However, this section relates only to sales by set-off. I note also that the Execution was recorded on the day of the levy and that the Sheriff's Deed was recorded within 90 days after the sale, which is how levy was made here.

d. The Sheriff's Return fails to set forth many of the particulars required by §23 of Chapter 236. That is true, but §23 relates only to levy by set-off.

e. Plaintiff complains that Defendant took all of Plaintiff's properties, not just those necessary to satisfy the judgment and failed to set off excess lands as required by §13 of Chapter 236. Here again, §13 relates only to levy by set-off. The equivalent protection where levy has been by sale is the provision in §26 for dealing with any surplus proceeds arising on sale.

10. The Sheriff's Deed (Exhibit 9) is valid as against any of the objections raised by Plaintiff. In its counterclaim, Defendant asks for a writ of entry as to the real estate included in the Sheriff's Deed. At oral argument, Plaintiff's Counsel stipulated that if I found that the Sheriff's Deed is valid (as I do), Defendant shall have a decree in its favor under G. L. c. 237 with respect to the land included in the Sheriff's Deed and such a decree shall issue. The land conveyed to Therese S. LeBarre (para. 6 above) shall be excluded from the decree, as Defendant did not make her a party to this action.

Judgement accordingly.