GEORGE K. MORRIS, TRUSTEE OF 24-26 GEORGE MORELAND TRUST vs. TRACY HUDSON, [Note 1] FITZHUR BROWN and MICAH S. WILLIAMS.

Plaintiff George K. Morris, Trustee of 24-26 George Moreland Trust, filed his unverified Complaint on September 29, 2011, pursuant to G. L. c. 231A and G. L. c. 240, § 6, seeking a declaratory judgment and to remove a cloud on title with respect to property located at 24-26 Moreland Street, Dorchester, Suffolk County, Massachusetts (the “Disputed Parcel”). On October 26, 2011, Defendant Fitzhur Brown a/k/a Lee Brown (“Brown”), filed his Answer. Defendant Micah S. Williams (“Williams”) filed his Answer on November 23, 2011. A case management conference was held on December 21, 2011. On July 13, 2012, Plaintiff filed a Motion for Dismissal of Action against Defendant Tracy Hudson, which was allowed on August 7, 2012. A pre-trial conference was held on August 5, 2013. A one-day trial was held at the Land Court on October 9, 2013. At the commencement of the trial, Plaintiff expressed an intent to file a Motion to Dismiss Complaint Against Micah S. Williams. [Note 2] On October 18, 2013, Plaintiff filed a Motion to Admit Newly Discovered Evidence. Brown filed a Motion to Allow New Evidence on November 7, 2013. A hearing was held on both motions on November 12, 2013, and both motions were DENIED. Plaintiff filed his post-trial brief with this court on January 21, 2014. Pursuant to an Order of this Court dated January 24, 2014, Brown filed his post-trial brief on February 6, 2014; at that time the matter was taken under advisement.

Testimony at trial for Plaintiff was given by Bruce Priestley (notary public), George Morris (Plaintiff), Taraneh Carroll, and Fitzhur Brown (Defendant). Testimony at trial for Brown was given by Fitzhur Brown. There were thirty-nine exhibits submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. By deed (the “1988 Essor Deed”) dated December 14, 1988, and recorded with the Suffolk County Registry of Deeds (the “Registry”) on December 19, 1988, at Book 15245, Page 15, Johnnie Council and Willie Dessessaur (“Council/Dessessaur”) conveyed the Disputed Parcel to Dorothy Essor (“Essor”), Trustee of Cole B. Realty Trust under a Declaration of Trust dated January 9, 1987, and recorded with the Registry at Book 13320, Page 160 (the “Realty Trust”). [Note 3] The consideration for such conveyance was $110,000.00.

2. Essor, as Trustee, granted a mortgage on the Disputed Parcel in the amount of $55,000 to Council/Dessessaur dated December 14, 1988, and recorded with the Registry on December 19, 1988 at Book 15245, Page 16 (the “Realty Trust Mortgage”).

3. Paragraph 3 of the Realty Trust provided, in part, as follows:

The trust may be terminated at any time by the beneficiaries, or any one or more of them, by notice in writing to the Trustee or by the Trustee by notice in writing to the beneficiaries... In case of any such termination, the Trustee shall transfer and convey the entire trust estate, subject to any leases, mortgages, contracts, or other encumbrances on the trust estate, to the beneficiaries according to the nature and extent of their respective interests.

Plaintiff Chain of Title.

4. A Termination of Trust dated March 16, 2001 (the “Termination”), executed by Patricia Brown, Beneficiary (stated in the Termination to be the sole beneficiary of the Realty Trust) was recorded with the Registry on March 16, 2001, at Book 26015, Page 183. [Note 4] The Termination stated that Patricia Brown notified Essor, Trustee that she was terminating the Realty Trust, and that Essor, Trustee “must transfer all interest in the Trust Estate to the Beneficiaries[.]” There is no deed of record conveying the Disputed Parcel from Dorothy Essor, Trustee of Cole B. Realty Trust, to Patricia Brown.

5. By deed (the “Patricia Brown Deed”) dated April 23, 2009, and recorded with the Registry on April 30, 2009, at Book 44863, Page 50, Patricia Brown, stated as beneficiary, and individually, conveyed the Disputed Parcel to Michael Soremekun. [Note 5] The consideration for such conveyance was $10,000.

6. By deed dated November 25, 2009, and recorded with the Registry on November 27, 2009, at Book 45778, Page 139, Michael Soremekun conveyed the Disputed Parcel to Thomsull Investment Group, LLC. The consideration for such conveyance was $16,500.

7. By deed dated June 29, 2010, and recorded with the Registry on June 29, 2010, at Book 46586, Page 111, Thomsull Investment Group, LLC conveyed the Disputed Parcel to Urban Neighborhood Homes LLC. The consideration for such conveyance was $89,000.

8. By deed dated July 22, 2010, and recorded with the Registry on July 23, 2010, at Book 46883, Page 63, Urban Neighborhood Homes LLC conveyed the Disputed Parcel to Plaintiff. The consideration for such conveyance was $130,000.

Williams Chain of Title.

9. By deed dated November 11, 2010, and recorded with the Registry on November 16, 2010, at Book 47184, Page 286 (the “November 2010 Essor Deed”), Essor, Trustee conveyed the Disputed Parcel to Sandra Brown (“Sandra”). [Note 6] The consideration for the conveyance was $100. The notarization was dated November 11, 2010. An Affidavit of Essor (the “Essor Affidavit”), notarized the same day, and recorded with the Registry on November 16, 2010, at Book 47184, Page 287, stated in part:

At the time of creation of the [Realty] trust, the only beneficiaries of the Trust were my two grand children, Brandon Brown and Ashley Essor. The Trust has never been revoked, altered or amended nor has any deed been authorized or directed by the beneficiaries of the Trust. Patricia Brown who attempted to convey the property by deed dated April 23, 2009 to Michael Soremekun and recorded in book 44863 page 50 on April 30, 2009 was never a beneficiary of the Trust and had no express or implied authority to sign the deed or convey title. On January 16, 2002 a deed was recorded from the Trust with my signature to Fitzhur Brown, Trustee of Bishop Trust recorded in Book 29442 Page 20. I never signed the deed and the purported signature is a forgery.

10. By deed dated November 11, 2010, and recorded with the Registry on November 16, 2010, at Book 47184, Page 289 (the “November 2010 Brown Deed”), Sandra conveyed the Disputed Parcel to Micah S. Williams. The consideration for the conveyance was $78,000. The notarization was undated.

11. By deed dated September 16, 2013, and recorded with the Registry on September 16, 2013, at Book 52116, Page 109 (the “2013 Williams Release Deed”), Micah S. Williams conveyed all of his right, title and interest in the Disputed Parcel to Plaintiff. The consideration for the conveyance was $1.

Tracy Hutson Chain of Title.

12. By deed dated November 16, 1994, and recorded with the Registry on November 17, 1994, at Book 19446, Page 89 (the “1994 Fitzhur Brown Deed”), Brown conveyed the Disputed Parcel to Tracy Hutson. The consideration for the conveyance was $100. This deed was notarized by Bruce Priestly, who testified that Brown appeared before him on November 17, 1994 and acknowledged the deed. [Note 7]

13. By Release Deed dated May 25, 2012, and recorded with the Registry on May 29, 2012, at Book 49570, Page 26 (the “2012 Hutson Release Deed”), Tracy J. Hutson a/k/a Tracy Hudson conveyed all of her right, title and interest in the Disputed Parcel to Plaintiff. The consideration for the conveyance was $1. The deed stated:

1. On November 16, 1994, Fitzhur Brown purported to convey the property at 24-26 Moreland Street, Roxbury, MA 02119 to one Tracy Hudson, of 35 River Street Cambridge, Massachusetts, for the sum of $1.00 by deed recorded in Book 19446, Page 89.

2. Said deed appears to have been an apparently unauthorized attempt to put record title to said property in my name, which was misspelled as Tracy “Hudson” in the grantee clause. The signature of Tracy “Hudson” on said deed (which was not required, since she was only the purported grantee) is not my signature.

Brown Chain of Title.

14. By deed dated January__, 2002, and recorded with the Registry on January 23, 2002, at Book 27854, Page 284 (“First January 2002 Deed”), Essor, Trustee conveyed the Disputed Parcel to Fitzhur Brown, Trustee of Bishop Trust under a Declaration of Trust dated January 14, 2002, and recorded with the Registry on January 23, 2002, in Book 27854, Page 281. [Note 8] The consideration for such conveyance was $1. The deed was neither executed nor dated. There was no notary seal on the acknowledgment, the notary is not readable, and there was no date of notarization.

15. By confirmatory deed dated January 16, 2002, and recorded with the Registry on September 26, 2002, at Book 29442, Page 20 (“Second January 2002 Deed”), Essor, Trustee conveyed the Disputed Parcel to Fitzhur Brown, Trustee of Bishop Trust under a Declaration of Trust dated January 14, 2002, and recorded with the Registry on January 23, 2002, in Book 27854, Page 281. There was no consideration stated. The notarization was dated January 16, 2002 but the notary signature was hand-dated September 25, 2002. [Note 9]

16. By deed dated September 26, 2002, and recorded with the Registry on September 26, 2002, at Book 29442, Page 23 (“September 2002 Deed”), Fitzhur Brown, Trustee of Bishop Trust conveyed the Disputed Parcel to Rachelle Thomas. The consideration for such conveyance was $50,000. There was no notary seal, and the notary is not readable. [Note 10]

17. By an undated deed recorded with the Registry on November 24, 2009, at Book 45760, page 173, Rachelle Thomas conveyed the Disputed Parcel to Taraneh Carroll (the “2009 Thomas Deed”). The consideration for this conveyance was $1. The notarization appears to be undated.

18. By deed dated July 1, 2010, and recorded with the Registry on August 30, 2010, at Book 46842, Page 217, Taraneh Carroll conveyed the Disputed Parcelto Fitzhur Brown (the “2010 Carroll Deed”). The consideration for the conveyance was $1. The notarization is undated.

19. By deed dated June 11, 2013, and recorded with the Registry on June 12, 2013, at Book 51593, Page 305, Taraneh Carroll conveyed all of her right, title and interest in the Disputed Parcel to Micah Williams. The consideration for this conveyance was $1. An Affidavit executed by Taraneh Carroll dated September 1, 2012 (the “Carroll Affidavit”), and recorded with the Registry on June 12, 2013 at Book 51593, Page 307, states:

I, Taraneh Carroll of 4 Robinson rd Lexington MA oath and say that I did not have knowledge of such deed. I never owned or transferred this property. I was shocked of this information and at no time I grant or transfer any title, right and interest to Fitzhur Lee Brown. The signature on the deed is forgery. Mr. Brown needs to be punished by law for stealing my identity.

20. At trial, Taraneh Carrol testified that she did not know Rachelle Thomas nor did she sign the 2010 Carroll Deed. She testified that she became aware that the property was being put in her name through a phone call from Sandra, Brown’s ex-wife, and confronted Brown on the matter:

Q: How did this conversation occur, or why did it occur?

A: Do you mean how did I find out?

Q: Yes.

A: Okay. I received a call when I was at work. It was from Sandra Brown, his ex-wife.

Q: Go ahead, without telling us what she told you. But, go ahead.

A: Okay. So that’s how I found out, and I confronted him about it.

Q: And what did you say to Mr. Brown when you spoke to him?

A: I asked him if he had signed this deed under my name and he said yes and it wasn’t a big deal and that he could have signed George Washington’s name. He could have signed it over to George Washington.

Lawsuits Involving Disputed Parcel.

21. On August 3, 2001, Council/Dessessaur filed a Complaint (the “Council/Dessessaur Complaint”) against Essor, Trustee in Suffolk Superior Court (01-3545 H) for foreclosure on the Disputed Parcel, alleging that Essor, Trustee was in default of payments of principal and interest on a mortgage dated January 9, 1987, recorded with the Registry at Book 13320, Page 160. [Note 11] On January 18, 2002, the Superior Court issued a Temporary Restraining Order/Preliminary Injunction (the “Superior Court Preliminary Injunction”) placing a real estate attachment on the Disputed Parcel in the amount of $55,000 and prohibiting Essor, Trustee and all related parties from selling the Disputed Parcel until January 25, 2002, which date was extended indefinitely (until a subsequent court order) by court order dated January 25, 2002. On May 1, 2002, the parties executed an Agreement for Judgment agreeing that Essor, Trustee would pay Council/Dessessaur the sum of $90,000 ($130,000 upon default), but Essor, Trustee defaulted on the Agreement for Judgment. By court order dated November 8, 2002 (and included Fitzhur Brown in the order prohibiting sale of the Disputed Parcel), the Preliminary Injunction was extended until further order of the court. On December 13, 2002, the Superior Court allowed Plaintiffs Motion to Vacate Judgment and Dismiss the case.

22. Michael Soremekun filed a Complaint in the Land Court (09 MISC 404424) (Grossman, J.) against Rachelle Thomas and Tracy Hutson on June 29, 2009, relative to title on the Disputed Parcel. There has been no activity in that case since September 30, 2009.

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The original Complaint described four separate chains of title to the Disputed Parcel. Two of the chains (the Tracy Hutson chain and the Micah S. Williams chain) are no longer at issue as independent chains. Tracy Hutson was dismissed from the case on August 7, 2012 after executing the 2012 Hutson Release Deed granting all rights in the Disputed Parcel to Plaintiff. Micah S. Williams was dismissed from the case on April 29, 2014 after executing the 2013 Williams Release Deed granting all rights in the Disputed Parcel to Plaintiff.

Plaintiff argues that its chain of title is superior. Brown argues that his chain of title is superior. This court will examine all four chains of title to determine which one, if any, is superior. None of the parties dispute the validity of the 1988 Essor Deed, so the court will use this deed as a starting point.

Plaintiff’s Chain of Title via Patricia Brown.

Plaintiff’s chain of title through Patricia Brown appears to be invalid because it is missing a proper deed conveying the Disputed Parcel from Essor, as Trustee to Patricia Brown at the commencement of the chain. Instead, the Termination is the first document in Plaintiff’s chain of title. In the Termination, Patricia Brown stated that she was the sole beneficiary of the Realty Trust, and that she notified Essor, Trustee that she was terminating the Realty Trust. There is a factual issue as to whether Patricia Brown had authority to terminate the Realty Trust. Paragraph 3 of the Realty Trust provided that any beneficiary could terminate the Realty Trust by notice in writing to the Trustee. The Termination stated that notice was given to Essor, Trustee, by the sole Beneficiary, Patricia Brown. Patricia Brown also stated in the Patricia Brown Deed that she was sole Beneficiary of the Realty Trust. However, the November 11, 2010 Essor Affidavit (executed by Essor, the Trustee of the Realty Trust) stated that Brandon Brown and Ashley Essor, Essor’s grandchildren, were the only beneficiaries of the Realty Trust. [Note 12]

Other than the Termination, the Patricia Brown Deed, and the Essor Affidavit, there is no other evidence in the trial record that identifies the beneficiaries of the Realty Trust. Neither Patricia Brown nor Essor was a witness. Thus, the determination of whether Patricia Brown was the sole beneficiary must be based on the face of the Termination, the Patricia Brown Deed, and the Essor Affidavit with no consideration of the credibility of Patricia Brown or Essor. This court does consider, however, that Essor was the grantor and trustee of the Realty Trust, putting her in the best position to know the intended beneficiaries of the Realty Trust. [Note 13] The burden at trial is on Plaintiff to prove that his chain of title is superior. Based on the evidence on record, I find that Plaintiff has failed to establish that Patricia Brown was the sole Beneficiary of the Realty Trust, or even one of many Beneficiaries capable of terminating the Realty Trust.

Further, the Patricia Brown Deed, which conveyed the Disputed Parcel to Michael Soremekun, is invalid because Patricia Brown never properly received title to the Disputed Parcel following the Termination, regardless of whether the Termination were valid. The Termination states (and the Realty Trust confirms) that the Trustee, not the beneficiaries, must transfer all interest in the Realty Trust to all of the beneficiaries. Trust property is not automatically conveyed at the time of termination. A trust does not terminate until all trust property has been conveyed out, and the duties and powers of the trustee related to conservation and conveyance of trust property continue until that time. See Rothwell v. Rothwell, 283 Mass. 563 , 570 (1933); Vitello v. Brown, 12 MISC 459863 AHS, 2013 WL 245963 (Mass. Land Ct. Jan. 22, 2013) (“the duties and powers of a trustee do not cease until the trustee has divested itself of trust property”); 14D Mass. Prac., Summary Of Basic Law § 18.105 (4th ed.) (“When a trust terminates in any way, whether by the expiration of the trust term, the exercise of a power of revocation, the order of a court, or otherwise, the powers and duties of the trustee continue until the trust is finally wound up....When real estate is involved, the trustee must execute and deliver a deed so as to perfect the record title.”) In 2001, Essor was mentally competent to deed the Disputed Parcel to the beneficiaries, which she did not do. Thus, when the Patricia Brown Deed conveyed the Disputed Parcel to a third party in 2009, the Realty Trust was still valid despite it being more than eight years after the purported Termination of the Trust. [Note 14] As a result of the foregoing, I find that the Patricia Brown Deed was not a valid transfer of the Disputed Parcel, and as a result, the Patricia Brown chain of title is invalid. [Note 15]

Plaintiff’s Chain of Title via Tracy Hutson

The Tracy Hutson chain of title is invalid. The first deed in that chain is the 1994 Fitzhur Brown Deed, which is invalid because Brown did not have legal title to the Disputed Parcel in 1994. [Note 16] Moreover, in the 2012 Hutson Release Deed, Tracy Hutson stated that the 1994 Deed was an invalid and unauthorized attempt to put title in her name. Tracy Hutson also stated that her name was forged on the 2012 Hutson Release Deed. [Note 17] As a result, I find that the Tracy Hutson chain of title is invalid.

Plaintiff’s Chain of Title via Micah Williams

At first blush, the Williams chain of title appears to be valid. Essor, Trustee conveyed the Disputed Parcel to her daughter Sandra by the November 2010 Essor Deed. The November 2010 Essor Deed was signed, but did not have a date of execution. The deed was notarized on November 11, 2010. The consideration for that deed was $100. If Essor had the capacity to execute a deed as Trustee at the time of its signing, the November 2010 Essor Deed would be valid. At trial, Brown testified that Essor was incapacitated in November 2010, but he had the burden of proving that Essor was incapacitated. Sparrow v. Demonico, 461 Mass. 322 , 327 (2012) (“The burden is on the party seeking to void the contract to establish that the person was incapacitated at the time of the transaction”). Brown testified at trial that Essor had a stroke in 2008 and was afterwards diagnosed with Alzheimer’s, and this testimony was not refuted on cross-exam by Plaintiff’s counsel.

In Massachusetts, the issue of mental incapacity requires a detailed factual account. Maimonides Sch. v. Coles, 71 Mass. App. Ct. 240 , 242 (2008) Courts look to medical providers or experts to explain whether, and to what extent, a person's mental condition has affected the ability to understand the nature of the transaction and its consequences. See, e.g., Meserve v. Jordan Marsh Co., 340 Mass. 660 , 663–664 (2012); Krasner v. Berk, 366 Mass. 464 , 466 (2011). “A non-expert is competent to testify to the physical appearance and condition and acts of a person both for their probative value for the jury and for the purpose of furnishing facts as the basis of hypothetical questions for experts.” Sparrow, 461 Mass. at 330 (citing Cox v. United States, 103 F.2d 133, 135 (7th Cir. 1939)). However, without expert or medical evidence, there can be no basis for a court to conclude that a party lacked the mental capacity to contract. See Sparrow, 461 Mass. at 331-332 (“[W]e conclude that medical evidence is necessary to establish that a person lacked the capacity to contract due to the existence of a mental condition”). Thus, despite Plaintiff’s failure to refute Brown’s testimony that Essor had a stroke in 2008 and was afterwards diagnosed with Alzheimer’s, there is not sufficient evidence to establish that Essor was incapacitated at the time of the execution of the November 2010 Essor Deed. [Note 18]

However, despite Essor’s presumed mental capacity at the time of the execution of the November 2010 Essor Deed, she did not have legal authority to convey title to Sandra, and the conveyance appears to be invalid. The Realty Trust contained certain provisions establishing it as a nominee trust, a form of ownership of real estate used in Massachusetts as a title-holding device. See Penta v. Concord Auto Auction, Inc., 24 Mass. App. Ct. 635 , 639 (1987); Birnbaum & Monahan, THE NOMINEE TRUST IN MASSACHUSETTS REAL ESTATE PRACTICE, 60 Mass. L. Q. 364, 364-365 (1975); Peter M. Malaguti, HAZARDOUS USE OF NOMINEE REALTY TRUSTS, 1 M.S.L. Rev. 63, 72 (1993).

In a nominee trust, the trustees act only at the direction of the beneficiaries. Roberts v. Roberts, 419 Mass. 685 , 687 (1995); Bellemare v. Clermont, 69 Mass. App. Ct. 566 , 571 (2007). Nominee trusts have characteristics of both agency and trust in that the trustees hold title for the benefit of others, but also take direction from those persons or entities who hold the beneficial interests. Id. at 688. “Where a person is both agent and trustee for another, the agency relation predominates. ” Bellemare, 69 Mass. App. Ct. at 571 (quoting 1 Scott, Trusts § 8, at 95 (4th ed.1987)).

The specific provisions in the Realty Trust creating the nominee trust are in articles Two and Five. Article Two provides, in pertinent part, “the Trustee shall have no power to deal in or with the trust estate except as directed by all of the beneficiaries.” Article Five contains a so- called “conclusive evidence provision”, which reads:

Every instrument executed by any person who according to the records in said place of recording appears to be a Trustee hereunder shall be conclusive evidence in favor of every person relying thereon or claiming thereunder that at the time of the delivery thereof, this trust was in full force and effect and that the Trustees were duly directed by the beneficiaries to execute and deliver the same. [Note 19]

A person dealing with the trustee of a nominee trust is bound by matters appearing of record, and by actual knowledge of a requirement of the trust. See Plunkett v. First Fed. Sav. & Loan Assn. of Boston, 18 Mass. App. Ct. 294 , 304-306 (1984); Penta, 24 Mass. App. Ct. at 640. The language of article Five removes a grantee’s initial burden to inquire as to Essor’s authority to convey the land on behalf of the Realty Trust. See Penta, 24 Mass. App. Ct. at 646. However, if the totality of facts establishes that a party had knowledge or reason to believe that further inquiry was necessary, the burden shifts back and the party must inquire into the trustee’s actual authority. See Mello v. Mello, 63 Mass. App. Ct. 1116 (2005). Thus, if Sandra knew at the time of the execution of the November 2010 Essor Deed that Essor lacked the authority to convey title, or knew of any reason that she should enquire as to Essor’s authority, the November 2010 Essor Deed is invalid. See Penta, 24 Mass. App. Ct. at 639.

In Mello, a father placed real estate into a nominee trust, of which he was named trustee. The provisions of the trust reserved a life estate for the father, and named his son, the plaintiff, beneficiary. The trust contained clauses similar to those found in paragraphs Two and Five in the present case. [Note 20] Several years later, the father’s wife, the defendant, and her lawyer prepared documents, which the father executed, conveying the land from the father, individually and as trustee, to the father and defendant, his wife, as tenants by the entirety.

The court in Mello addressed the issue of whether the “conclusive evidence provision” of the trust document relieved defendant of her duty to inquire to whether plaintiff, as the trust beneficiary, had given the trustee the authority to convey the trust property. The court noted that the defendant and her attorney were on notice that further inquiry was needed when they were in possession of documents that showed that the father was a trustee of an irrevocable trust holding the property for the benefit of the plaintiff. This notice created a duty to inquire about all information recorded at the registry of deeds and to further investigate whether the trustee was legally able to convey good title to the land at issue.

The court in Mello differentiated the above facts from Penta, which held that a “conclusive evidence provision” relieves a party’s duty to inquire as to a trustee’s actual authority to deal in a trust estate. See Mello, 63 Mass. App. Ct. at 1116 (citing Penta, 24 Mass App. Ct. at 635). The court pointed to the fact that, in Penta, the purchaser was a bone fide purchaser for value who had never seen nor become aware of the provisions of the trust prior to signing the offer. See id. Further, in Penta, the trustee was also one of the beneficiaries, so the purchaser at least knew that there was partial consent by the beneficiaries. See id.

In the present case, Sandra was not a bone fide purchaser for value. As the daughter of the grantor, she purchased the Disputed Parcel for $100 and that same day conveyed her interest to Micah Williams for $78,000 through the November 2010 Brown Deed. [Note 21] Further, Sandra was put on notice that Essor, as Trustee, did not have actual authority to convey the land by the Essor Affidavit, which was executed and notarized with the deed conveying title to Sandra. That affidavit stated, “At the time of creation of the [Realty Trust], the only beneficiaries of the Trust were my two grand children, Brandon Brown and Ashley Essor. The Realty Trust has never been revoked, altered or amended nor has any deed been authorized or directed by the beneficiaries of the Trust.” This information put Sandra on notice of the Realty Trust and renewed her duty to inquire as to whether Essor, as Trustee had actual authority to convey title. [Note 22]

As a result of the foregoing, I find that Essor, as Trustee did not have authority to convey title to Sandra, and that Sandra had an obligation to inquire as to Essor’s actual authority, which she failed to do, making the conveyance of the Disputed Parcel through the November 2010 Essor Deed invalid. All later conveyances in this chain of title, including Williams’ attempted conveyance to Plaintiff through the 2013 Williams Release Deed, are invalid because they rely on the November 2010 Essor Deed for title. As a result, I find that the Williams chain of title is invalid.

Fitzhur Brown’s Chain of Title.

The Brown chain of title has a number of issues leading to a determination that it is invalid. The First January 2002 Deed from Essor, as Trustee to Brown was neither signed nor dated. A deed must be signed by the grantor or grantor’s attorney to pass title. G.L. c. 183, § 3; Caron v. Wadas, 1 Mass. App. Ct. 651 , 654 (1974). See generally F.T. Talty, P.S. Talty, & A.L. Braunstein, Methods Of Practice (4th ed. 2000) (“That a deed must be signed authentically goes without saying.”) As a result of the foregoing, I find that the First January 2002 Deed was not a valid deed. [Note 23]

The Second January 2002 Deed attempts to modify the First January 2002 Deed by providing a January 16, 2002 date of execution. [Note 24] The Second January 2002 Deed, although dated January 16, 2002, was notarized on September 25, 2002, and was not recorded until September 26, 2002. If these documents are to be believed at face value, it would result in an illogical and absurd order of events. According to the deeds, Essor (1) prepared the First January 2002 Deed on January 16, 2002 but neglected to date or sign the deed; (2) executed the Second January 2002 Deed later that day (January 16, 2002) correcting the omitted date and signature from the First January 2002 Deed; (3) recorded the First January 2002 deed without a date or signature on January 23, 2002 [Note 25]; (4) notarized the Second January 2002 Deed correcting this mistake nine months later on September 25, 2002; and (5) recorded the Second January 2002 Deed correcting this mistake on September 26, 2002.

This court can find no logical reason why Essor would record an invalid deed (the First January 2002 Deed), a full week after executing a confirmatory deed (the Second January 2002 Deed) attempting to fix said invalid deed, and then wait nine months to record the confirmatory deed. It is more likely that both deeds were fraudulently created in an attempt to backdate the conveyance of the property in order to circumvent the January 18, 2002 Superior Court Preliminary Injunction, as discussed, infra.

These events are even more suspicious in light of the many accusations that Brown had forged the Second January 2002 Deed as well as other deeds. Essor represented, through the Essor Affidavit, that the Second January 2002 Deed was a forgery. [Note 26] Taraneh Carroll, a credible witness, testified that the 2010 Carroll Deed from Taraneh Carroll to Brown was a forgery by Brown and that she never executed that deed. Tracy Hutson similarly stated, in the 2012 Hutson Release Deed, that her signature on the 1994 Fitzhur Brown Deed from Brown to Hutson, though unnecessary, was a forgery (spelling her name wrong) and an unauthorized attempt to put the Disputed Parcel in her name.

A valid notary certificate on a deed creates a presumption of a valid acknowledgment. Keville v. McKeever, 42 Mass. App. Ct. 140 , 157 (1997). However, “the presence of a notarization is not fatal to a claim of fraud or forgery, and may be overcome” by evidence that rebuts the validity of the notarization or impeaches the notary's testimony. Id.; Countrywide Home Loans, Inc. v. Bruce, 2011 WL 1620779 (Mass. Land Ct. Apr. 25, 2011). However, merely establishing that a notarization took place under unusual or unclear circumstances, or impeaching a witness other than the notary testifying on behalf of the validity of the notarization, is not enough to rebut the presumption. See Hale v. Hale, 332 Mass. 329 , 334 (1995); Montgomery v. Jackson, 2006 WL 3530559 (Mass. Land Ct. Dec. 8, 2006). The fact that the individual who notarized the Second January 2002 Deed did not testify to the validity of Essor’s signature distinguishes this case from other cases in which courts have not found forgery despite unusual circumstances surrounding the execution of a deed and a lack of credibility to the witnesses who support its validity. [Note 27] Moreover, the same notary executed both the Second

January 2002 Deed and the September 2002 Deed. Brown could have brought this notary in as a witness, but did not and gave no basis for not doing so. Regardless of its validity, the conveyance of the Second January 2002 Deed is void because it violated the Superior Court Preliminary Injunction, as amended. The Superior Court Preliminary Injunction, effective January 18, 2002 through December 13, 2002, prohibited "[s]elling, transferring, conveying, attempting to see, transfer or convey, or otherwise encumbering" the Disputed Parcel by Essor, Trustee and, as of November 8, 2002, by Brown. By notarizing and recording the Second January 2002 Deed during the period of such preliminary injunction, Essor violated the Suprior Court Preliminary Injunction. The Second January 2002 Deed was therefore not valid. Similarly, the September 2002 Deed was also not a valid transfer. Further, as was the case in the Micah Williams chain of title, Essor did not have authority from the beneficiaries of the Realty Trust to convey title to Brown through the Second January 2002 Deed. Like Sandra, Brown was not a bone fide purchaser for value (he paid just $1.00 for consideration), and was a relative of the grantor who should have known about the existence of the Realty Trust and its beneficiaries. Thus, Brown had an obligation to inquire as to Essor’s actual authority to covey the Disputed Parcel. As a result of the above, I find that the Second January 2002 Deed is not a valid deed. The remaining deeds in the Brown chain of title are also not valid as they are all based on the Second January 2002 Deed. [Note 28] As a result, I find that the Brown chain of title is invalid.

Conclusion.

Starting with the uncontested 1988 Essor Deed, there must be a valid conveyance out from Essor, Trustee for a chain of title to the Disputed Parcel to be valid. Plaintiff’s claim on the parcel via the Patricia Brown chain of title is invalid because it is missing a proper deed conveying the Disputed Parcel from Essor, Trustee to Patricia Brown. Rather than attempting to claim title pursuant to the Termination, Patricia Brown, if she was a beneficiary of the Realty Trust, should have petitioned the court during those eight years to require Essor, Trustee to properly deed the Disputed Parcel out. Essor was competent at the time and there was certainly time to file and litigate such a claim if Patricia Brown had a valid basis for requesting the transfer.

Assuming therefore that there was no valid conveyance out from Essor, Trustee prior to 2002, we move to the two January 2002 Deeds. The First January 2002 Deed from Essor, Trustee is not valid since it was not executed. G.L. c. 183, § 3; Caron, 1 Mass. App. Ct. at 654. The Second January 2002 Deed is not valid because the evidence indicates it has been forged. Further, even if not forged, it’s execution and recording was void because it conflicted with the Superior Court Preliminary Injunction. The only other conveyance out from Essor was the November 2010 Essor Deed to Sandra. Essor did not have authority to convey title to Sandra. Further, Sandra had an obligation to inquire as to Essor’s actual authority, which she failed to do, making the November 2010 Essor Deed invalid. As a result, I find that Essor, as Trustee of the Realty Trust, still holds title to the Disputed Parcel, for the benefit of the beneficiaries of the Realty Trust. Essor may not convey title out to any person without actual authority established by the express instruction of the beneficiaries. [Note 29]

Judgment to enter accordingly.