GEORGE K. MORRIS, Trustee of the 24-26 George Moreland Trust vs. TRACY HUDSON, [Note 1] FITZHUR BROWN, MICAH S. WILLIAMS, and 24-26 MORELAND STREET, LLC. [Note 2]

Plaintiff George K. Morris, trustee of the 24-26 George Moreland Trust ("Plaintiff") commenced this case by filing an unverified Complaint on September 29, 2011, seeking, pursuant to G. L. c. 240, § 6, to remove a cloud on title with respect to property purportedly owned by Plaintiff and located at 24-26 Moreland Street, Dorchester, Suffolk County, Massachusetts (the "Disputed Property"), as well as declaratory relief with respect to the ownership of the Disputed Property pursuant to G. L. c. 231A. [Note 3] On October 26, 2011, Defendant Fitzhur Brown (also known as "Lee Brown") ("Fitzhur") filed an Answer. Defendant Micah S. Williams ("Williams") filed an Answer on November 23, 2011. A case management conference was held on December 21, 2011.

On July 13, 2012, Plaintiff filed a motion to dismiss his claims as against Hutson, which I allowed on August 7, 2012. [Note 4] A pre-trial conference was held on August 5, 2013. A one-day trial (the "First Trial") was held at the Land Court on October 9, 2013. [Note 5] Following the First Trial, Plaintiff and Fitzhur each filed motions seeking to admit newly-discovered evidence, each of which motions were denied after a hearing held on November 12, 2013. Plaintiff filed his post-trial brief on January 21, 2014. Fitzhur filed his post-trial brief on February 6, 2014. At that time the matter was taken under advisement.

On May 14, 2014, I issued a Decision ("Land Court Decision 1") and Judgment (the "Judgment") finding, inter alia, as follows:

(1) that the chain of title under which Plaintiff claimed ownership of the Disputed Property (the "Patricia Brown Chain of Title") was invalid; [Note 6]

(2) that the chain of title under which Hutson then or formerly held title to the Disputed Property (the "Tracy Hutson Chain of Title") was invalid; [Note 7]

(3) that the chain of title under which Sandra Brown ("Sandra") then or formerly held title to the Disputed Property (the "Sandra Brown Chain of Title") was invalid; [Note 8]

(4) that the chain of title under which Fitzhur claimed ownership of the Disputed Property (the "Fitzhur Brown Chain of Title") was invalid; [Note 9] and,

(5) that, because each of the four chains of title at issue were invalid, Dorothy, as trustee of the Trust , still held title to the Disputed Property for the benefit of the beneficiaries of the Trust.

On May 21, 2014, Plaintiff filed a motion seeking reconsideration and amendment of Land Court Decision 1 and the Judgment, which I denied on July 2, 2014. [Note 10] On July 23, 2014, Plaintiff filed a motion for relief from the Judgment, claiming to have discovered new evidence, which I denied on August 19, 2014. [Note 11]

Plaintiff filed notice of his appeal of Land Court Decision 1 and the Judgment on July 30, 2014. On June 15, 2015, the Appeals Court issued a decision (Morris v. Brown, 87 Mass. App. Ct. 1130 (Table), *3 (2015) -- the "Appeals Court Decision") on Plaintiff's appeal, vacating in part and affirming in part Land Court Decision 1 and the Judgment. As rationale for doing so, the Appeals Court stated that "given how the parties and the judge framed the issues at trial . . . the plaintiff was not seeking to rely on (or to challenge) the [the Sandra Brown and Tracy Hutson] chains of title." Appeals Court Decision 1, 87 Mass. App. Ct. at *3. Thus, the court found, "the plaintiff lacked notice that the validity of [the Sandra Brown and Tracy Hutson] chains of title was being tried." Id.

On the specific issue of the Sandra Brown Chain of Title, the Appeals Court went on to conclude as follows:

there was no trial evidence that the beneficiaries had not endorsed that sale [in the November 2010 Sandra Deed] and, in light of the "conclusive evidence" provision of the [Trust], the plaintiff had no burden to establish that the beneficiaries had authorized or endorsed the sale. Therefore, even had the validity of the [Sandra Brown Chain of Title] been presented, the plaintiff had no burden to prove that this facially valid chain of title did not suffer from a hidden defect.

Id. Accordingly, the court continued:

That leaves the question of what disposition is appropriate. Because we conclude that the validity of the [Sandra Brown] and [Tracy] Hutson chains of title should not have been at issue at trial, we vacate the fourth [Tracy Hutson Chain of Title], fifth and sixth [Sandra Brown Chain of Title] paragraphs of the judgment (which purported to adjudicate the validity of those chains of title) as well as the final paragraph of the judgment (which declared that [Dorothy] Essor still held title to the property).[ [Note 12] ] We let stand the other paragraphs of the judgment, which are not challenged on appeal.[ [Note 13] ] So much of the order denying the motion for reconsideration as denied the request that the judge "make no conclusion with respect to the validity of the plaintiff's chain of title via [Sandra Brown Chain of Title]" is vacated; the remainder of that order is affirmed. The order denying the motion for relief from judgment is affirmed.

Id. at *4. In a footnote to the Appeals Court Decision, the Appeals Court stated as follows:

We emphasize that the appeal before us is a narrow one, and that this case does not include several parties with a potential stake in the dispute: [Dorothy] Essor, Sandra Brown, the beneficiaries of the trust, and the putative new purchaser of the property. Nothing in this memorandum and order should be read as resolving who holds proper title to the property.

Id. at *4, n. 10. The Notice of Rescript from the Appeals Court was entered in this court on July 15, 2015. [Note 14]

While Plaintiff's appeal was pending, Sandra, having replaced Dorothy as trustee of the Trust, purported to convey the Disputed Property to Moreland. See discussion, infra. Thus, on remand to this court, Plaintiff filed an Amended Complaint on September 2, 2015, adding Moreland as a party Defendant. [Note 15] Moreland filed an Answer on December 30, 2015. At a status conference held on January 19, 2016, the parties disputed whether a new trial was needed or whether the remaining issues could be resolved on summary judgment motions. Plaintiff filed a statement of proposed undisputed material facts on January 26, 2016, and Moreland filed its response on February 2, 2016. At a status conference on February 4, 2016, this court determined that there were material facts at issue, and thus that a new trial was called for. [Note 16]

On March 2, 2016, Plaintiff filed a pre-trial memorandum. On March 3, 2016, Moreland filed a pre-trial memorandum, and Plaintiff filed a reply to Moreland's pre-trial memorandum. A pre-trial conference was held on March 4, 2016. A remand trial (the "Remand Trial") was held in the Land Court in Boston on Monday, April 25, 2016. Testimony at the Remand Trial for Plaintiff was given by Janet Blake (a notary public) ("Blake"), Sandra, Lincoln Brown (grandson of Dorothy and son of Sandra) ("Lincoln"), Timothy O'Callaghan (principal of Moreland), and Mark Wilson (a notary public). [Note 17] Moreland did not call any witnesses at the Remand Trial. The parties submitted twenty-four agreed-upon exhibits submitted into evidence, and four additional documents were marked for identification. Post-trial briefs were filed by both parties on July 5, 2016, at which time the case again went under advisement.

Based on the sworn pleadings, the evidence submitted at the First Trial and Remand Trial, the parties' post-trial briefs, and the reasonable inferences drawn therefrom, I find the following material facts, with additional facts discussed in the discussion section below.

The Parties

1. Each of the four disputed chains oftitle relate to deeds and alleged conveyances taking place subsequent to a deed dated December 14, 1988 and recorded in the Registry at Book 15245, Page 15 (the "1988 Dorothy Deed"), by which Dorothy, as trustee of the Trust, acquired the Disputed Property at a purchase price of $110,000.00.

2. Many of the parties relevant to this case are related. Dorothy is Sandra's mother. Fitzhur is Sandra's ex-husband. Lincoln and Brandon are Sandra and Fitzhur's children and Dorothy's grandchildren. Ashley is Sandra's niece, Dorothy's granddaughter, and Lincoln and Brandon's cousin. Patricia Brown ("Patricia") is Fitzhur's sister and Sandra's ex-sister-in-law.

3. The Trust (defined, supra) is a nominee trust that operates, inter alia, as follows:

Article 1: Dorothy Essor . . . and her successors in trust (hereinafter together referred to as the "Trustee") will hold any and all property that may be transferred to her as Trustee hereunder for the sole benefit of the persons hereinafter called the beneficiaries, who are set forth in a Schedule of Beneficial Interests[ [Note 18] ] signed by the Trustees and the beneficiaries in the proportions therein set forth.

* * *

Article 2: Except as hereinafter provided in case of the termination of this trust, the Trustee shall have no power to deal in or with the trust estate except as directed by all of the beneficiaries. The Trustee, however, shall have full power and authority to borrow money and to sell, exchange, or otherwise dispose of all or any part of the trust property . . . enter into agreements or arrangements with respect to the trust property . . . as may be directed by all of the beneficiaries . . . .

* * *

Article 4: Succeeding or additional trustees may be appointed or any Trustee removed by an instrument or instruments in writing signed by all of the beneficiaries and acknowledged by one or more of them, provided in each case that such instrument or instruments or a certificate by an Trustee naming the Trustee or Trustees appointed or removed, and in the case of an appointment the acceptance in writing by the Trustee or Trustees appointed, shall be so registered or recorded.

* * *

Article 5: 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 everyperson 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.

The Sandra Brown Chain of Title [Note 19]

4. By deed dated November 11, 2010, and recorded in the Registry at Book 47184, Page 286 (the "November 2010 Dorothy Deed"), Dorothy, as trustee of the Trust, purported to convey the Disputed Property to Sandra, individually. The stated consideration for this conveyance was $100.00. Dorothy's signature on the November 2010 Dorothy Deed was notarized by Blake.

5. Annexed to the November 2010 Dorothy Deed as Exhibit "A" was an affidavit of Dorothy (the "Dorothy Affidavit"), which provides, in relevant part, as follows:

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.[ [Note 20] ] 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 [the Patricia Brown Deed] 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 Lee Brown, Trustee of Bishop Trust recorded in Book 29442 Page 20 [i.e., the Second January 2002 Deed]. I never signed the deed and the purported signature is a forgery.

Dorothy's signature on the Dorothy Affidavit was also notarized by Blake.

6. By deed dated November 11, 2010 and recorded in the Registry at Book 47184, Page 289 (the "November 2010 Sandra Deed"), Sandra purported to convey the Disputed Property to Williams. [Note 21] The stated consideration for this conveyance was $78,000.00, and the document contains a transfer tax stamp indicating that transfer taxes of $355.68 were assessed and paid based on that amount. The November 2010 Sandra Deed was also notarized by Blake. [Note 22]

7. At the Remand Trial, Sandra testified that she never received any consideration from Williams pursuant to the November 2010 Sandra Deed, notwithstanding the recitation of consideration in that document. [Note 23] In her pre-Remand Trial deposition, Sandra explained that she had been unable to obtain financing to do renovation work needed to put the Disputed Property to productive use. Thus, she stated, by the November 2010 Deed, she intended to put the Disputed Property in the name of Williams (who, she claimed, was in a better position to secure financing to renovate the Disputed Property, as that line of work was his business) out of which funds Sandra would thereafter be paid the $78,000.00 recited in the deed. However, she claimed that Williams fell upon hard times and thus this plan did not come to fruition, upon which she and Williams decided to accept Plaintiff's offer to buy out their interest in the Disputed Property in connection with this lawsuit. [Note 24]

8. By release deed dated September 16, 2013 and recorded in the Registry at Book 52116, Page 109 (the "2013 Williams Release Deed"), Williams (after the commencement of this case) released to Plaintiff any/all claim to any right, title, and interest in the Disputed Property, thus resolving Plaintiff's claims against him. The stated consideration for this conveyance was $1.00. As noted above, in connection with the 2013 Williams Release Deed, Williams was dismissed as a party to this case.

9. In conjunction with the 2013 Williams Release Deed, Williams and Sandra executed a release (the "2013 Williams/Sandra Release") (signed by Williams on September 16, 2013 and by Sandra on September 13, 2013), which, in consideration of payment of $75,000.00, granted Plaintiff the following release:

Williams and [Sandra] hereby remise, release and forever discharge [Plaintiff] of an from all debts, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, and any and all claims, demands and liabilities whatsoever of every name and nature, both in law and in equity, which against [Plaintiff] or his heirs and assigns Williams and [Sandra] now have or ever had from the beginning of the world to this date and more especially on account of any right, title and interest in and to the land with the buildings thereon located at 24-26 Moreland Street, Roxbury, MA 02119 . . . .

The 2013 Williams/Sandra Release (a general release of claims, not a release deed) was not recorded in the Registry.

10. Included in Remand Trial Exhibit 4 are two pages of bank statements from Plaintiff's attorney's IOLTA account, which indicate that an outgoing wire transfer of $75,000.00 was sent to Williams's attorney's office on September 6, 2013. Sandra did not deny that this payment was made, but testified that Williams's attorney never distributed any portion of these funds to her. [Note 25]

11. In Brandon's December 28, 2015 deposition, Brandon stated that he did not become aware of the existence of the November 2010 Dorothy Deed until 2014, but that he would have approved of it had he know about it.

12. In Ashley's December 28, 2015 deposition, Ashley stated that she did not become aware of the existence of the Trust until some time in 2014 . She further testified that she did not become aware of the existence of the November 2010 Dorothy Deed until 2014, but that she would have approved of it had she know about it "as long as the same conditions were going to continue".

13. Lincoln testified at the Remand Trial that he did not become aware of the November 2010 Dorothy Deed until "sometime when [he] was in college", but that he would have had no objection to it had he known about it. [Note 26]

The Moreland Chain of Title

14. As noted above, Land Court Decision 1 and the Judgment issued on May 14, 2014. Pursuant thereto, this court determined, inter alia, that title to the Disputed Property remained in the Trust.

15. On June 1, 2014 -- less than three weeks after Land Court Decision 1 and the Judgment had issued, and while post-Judgment motion practice was being litigated in this case -- Ashley, Brandon, and Lincoln (together, the "Beneficiaries") executed a document entitled "Removal and Appointment of Successor Trustee ofthe Realty Trust", purportedly removing Dorothy as trustee of the Trust and appointing Sandra as the successor trustee. Sandra also executed this document to accept the appointment as Successor Trustee. This document was recorded in the Registry at Book 53226, Page 316. [Note 27]

16. By trustee's certificate dated July 11, 2014 and recorded in the Registry at Book 53210, Page 252, Sandra, acting as trustee of the Trust, stated that the Trust was authorized by the Beneficiaries to enter into a purchase and sale agreement for the Disputed Property with Moreland for $145,000.00.

17. By trustee's certificate (the "2014 Dorothy Trustee Certificate") dated July 14, 2014 and recorded in the Registry at Book 53226, Page 315 (which Dorothy executed both individually and as trustee of the Trust), Dorothy acknowledged that the Beneficiaries were all beneficiaries of the Trust (and the only beneficiaries thereof), that Dorothy had accepted her removal as trustee of the Trust, and that Sandra had been appointed as successor trustee of the Trust. [Note 28] Dorothy's signature on the 2014 Dorothy Trustee Certificate was notarized by Mark Wilson, but was barely legible.

18. Sandra, as trustee of the Trust, and Moreland executed a purchase and sale agreement (the "P&S") dated July 11, 2014 for the sale of the Disputed Property. The P&S provided for a purchase price for the Disputed Property of $145,000.00 and a closing date of August 6, 2014. The P&S was recorded in the Registry at Book 53210, Page 253. The Trust and Moreland later revised the P&S by agreement dated July 15, 2014 and recorded in the Registry at Book 53226, Page 308, which reduced the purchase price for the Disputed Property to $130,000.00 and moved up the closing date to July 17, 2016. The Trust and Moreland again amended the P&S by agreement dated July 17, 2014 and recorded in the Registry at Book 53241, Page 53, which again reduced the purchase price for the Disputed Property to $85,000.00.

19. By trustee's certificate dated July 17, 2014 and recorded in the Registry at Book 53233, Page 211, Sandra, acting as trustee of the Trust, stated that she was authorized by the Beneficiaries to sell the Disputed Property to Moreland for $85,000.00.

20. On July 17, 2014, the Beneficiaries executed a document entitled "Amended Written Direction of Beneficiaries" (the "Beneficiary Authorization"), which was recorded in the Registry at Book 53241, Page 51, in which they stated that they had authorized the sale of the Disputed Property to Moreland for $85,000.00.

21. By deed dated July 17, 2014 and recorded in the Registry at Book 53233, Page 213 (the "Moreland Deed"), Sandra, as trustee of the Trust, purportedly conveyed the Disputed Property to Moreland for $85,000.00. At the Remand Trial, Sandra testified that she [Note 29] was paid $85,000.00 for this conveyance, and that, with these funds, she paid off some of her own personal bills, made a college tuition payment on behalf of Lincoln, bought a car for Ashley, and gave $10,000.00 each to Lincoln and Brandon. [Note 30]

**************************

As noted above, in Land Court Decision 1, I found that the Patricia Brown Chain of Title and the Fitzhur Brown Chain of Title were invalid, and these determinations were not challenged on appeal. I also found that the Tracy Hutson Chain of Title and the Sandra Brown Chain of Title were invalid, but those determinations were overturned by the Appeals Court.

Also noted above, Plaintiff has already resolved his claims against Hutson, with Hutson granting a release deed (the 2012 Hutson Release Deed) to Plaintiff. [Note 31] Moreover, at the Remand Trial, the parties' counsel stipulated on the record that the Tracy Hutson Chain of Title was invalid, and that, in any event, it was no longer an issue in this case. Thus, by agreement of the parties, for the reasons stated in Land Court Decision 1, I again FIND that the Tracy Hutson Chain of Title is invalid. That leaves only the Sandra Brown Chain of Title and the Moreland Chain of Title to be addressed.

The Sandra Brown Chain of Title

In Plaintiff's initial Complaint, Plaintiff claimed that the Sandra Brown Chain of Title constituted a cloud on Plaintiff's title (through the Patricia Brown Chain of Title), and, as a result, Plaintiff requested this court to declare that Williams never held any right, title, or interest in the Disputed Property. [Note 32] I reached that conclusion in Land Court Decision 1 for the reason that, I held, Dorothy had lacked the authority of the Beneficiaries to deed the Disputed Property to Sandra in the November 2010 Dorothy Deed. However, as noted, this holding was vacated by the Appeals Court Decision on the basis that, the Appeals Court found, Plaintiff had inadequate notice that the issue of the validity of the Sandra Brown Chain of Title would be addressed in Land Court Decision 1. Appeals Court Decision, 87 Mass. App. Ct. at *3.

As to the merits of my conclusion on this chain of title, the Appeals Court held as follows:

in light of the "conclusive evidence" provision of the [Trust], the plaintiff had no burden to establish that the beneficiaries had authorized or endorsed the sale. Therefore, even had the validity of the [November 2010 Dorothy Deed] been presented, the plaintiff had no burden to prove that this facially valid chain of title did not suffer from a hidden defect.

Id. The Appeals Court did not elaborate on this conclusion in any detail. Moreover, it is at odds with the Appeals Court's conclusion that the Sandra Brown Chain of Title "should not have been at issue at trial". Thus, I now take the opportunity to address this issue in the first instance.

Trustees of nominee trusts -- like the Trust -- stand in a hybrid agent/fiduciary relationship to the beneficiaries of their trust, and, in such a relationship, "the agency relation . . . predominates." Penta v. Concord Auto Auction, Inc., 24 Mass. App. Ct. 635 , 640 (1987) (quotation omitted). "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." Mello v. Mello, 63 Mass. App. Ct. 1116 (Table), *3 (2005) (Unpublished Rule 1:28 Opinion) (citing Plunkett v. First Fed. Sav. & Loan Ass'n of Bos., 18 Mass. App. Ct. 294 , 304-306 (1984); Penta, 24 Mass. App. Ct. at 640); see also Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 504 (2014) (recorded conveyances that, on their face, comport with statutory requirements are voidable based on latent technicaldefects, such as an agent's lack of authority).

The first issue relative to the November 2010 Dorothy Deed is whether, Dorothy, as trustee of the Trust, had adequate capacity to enter into that deed. As discussed above, that deed, and the accompanying Dorothy Affidavit, were duly executed by Dorothy and notarized by Blake. At the Remand Trial, Blake testified that her only role in this transaction, as a notary, was to identify Dorothy as the person executing these documents and to confirm that Dorothy acknowledged that she was voluntarily executing same. With specific reference to the Dorothy Affidavit, Blake testified that Dorothy only told her that she executed that document as her free act and deed, but that she could not herself confirm whether the contents of the Dorothy Affidavit were truthful and accurate. Blake further testified that she had no knowledge of -- and conducted no assessment of -- Dorothy's mental capacity to execute these documents, and that it was not her role to make any such assessment. In essence, she was a mere witness to the act of signing -- nothing more. [Note 33]

On June 4, 2004, former Governor Mitt Romney issued Revised Executive Order No. 455 (04-04) entitled "Standards of Conduct for Notaries Public" ("E.O. 04-04"), which states:

A notary public shall not perform a notarial act if . . . the principal has a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring the notarial act . . . [or] in the notary public's judgment, the principal is not acting of his or her own free will . . . .

E.O. 04-04, § 6(a)(3)-(4). However, it also provides that "[a] notary public has neither the duty nor the authority to investigate, ascertain, or attest to the lawfulness, propriety, accuracy, or truthfulness of a document or transaction involving a notarial act." E.O. 04-04, § 8(a).

Based upon these two provisions of E.O. 04-04, while Blake would have been prohibited from notarizing the November 2010 Dorothy Deed and the Dorothy Affidavit if she harbored suspicions as to Dorothy's mental capacity or understanding of these documents, she was under no duty to independently investigate that issue. She was thus left to make her own judgment, in the moment, of Dorothy's capacity and understanding to sign those documents.

As discussed in Land Court Decision 1, the burden is on the party seeking to void a document to establish that a person was incapacitated at the time of the execution of the document. While several lay witnesses testified that Dorothy presently suffers from Alzheimer's Disease, no party (at either trial) presented any credible, scientific evidence that would tend to suggest that Dorothy lacked the mental capacity to enter into any of the various documents she is alleged to have signed. Thus, I FIND that there is insufficient proof to conclude that Dorothy lacked the mental capacity to execute the November 2010 Dorothy Deed and/or the Dorothy Affidavit, and, thus, that both such documents are presumptively valid.

The next issue relative to the validity of the November 2010 Dorothy Deed was Dorothy's authority to execute that deed. As is typical of nominee trusts, Article 2 of the Trust provides that "the Trustee shall have no power to deal in or with the trust estate except as directed by all of the beneficiaries." As noted above, the testimony of the Beneficiaries [Note 34] at the Remand Trial was that they did not know of the November 2010 Dorothy Deed at the time that it was executed, but that, having later been made aware of it, they had no objection to that deed, and that, if they had known about it at the time, they would have approved it. [Note 35]

It is all well and good for the Beneficiaries now to make such conditional statements in hindsight, but the fact remains that they did not affirmatively give Dorothy the authority to execute that deed at the time, and thus that the unanimous assent of the Beneficiaries -- as required by Article 2 of the Trust -- was lacking. Moreover, it appears that Ashley would not have given her consent since the transaction changed her ownership of the Disputed Property. Accordingly, I FIND that Dorothy, as trustee of the Trust, did not have the unanimous assent of the Beneficiaries to convey the Disputed Property to Sandra by the November 2010 Dorothy Deed, and thus lacked authority to do so.

The third issue with respect to the November 2010 Dorothy Deed is whether -- despite the fact that Dorothy lacked authority to grant that deed -- Dorothy's actions in doing so were subsequently ratified by the Beneficiaries. On this point, case law has established that:

Where an agent lacks actual authority to agree on behalf of his principal, the principal may still be bound if the principal acquiesces in the agent's action, or fails promptly to disavow the unauthorized conduct after disclosure of material facts. It is the instant duty of a principal, upon ascertaining the facts, at once to disaffirm an act done in his name by an agent in execution of a power conferred but in a mode not sanctioned by the terms of the agency or in excess or misuse of the authority given. Ratification relates back, and has the same effect, as a prior grant of authority by the principal to the agent.

Linkage Corp. v. Trs. of Bos. Univ., 425 Mass. 1 , 18 (1997) (quotations omitted). "Ratification may be effected by the principal's express declaration or inferred from his actions, including failure to repudiate an act. In order to establish ratification it generally must be shown that the principal had full knowledge of all material facts." Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522 , 529 (2008) (quotation omitted).

As noted above, it is clear that the Beneficiaries knew nothing of the November 2010 Dorothy Deed or the November 2010 Sandra Deed at the time those deeds were executed. Further, their testimony indicated that they took little to no interest in the Disputed Property. In large part, they appear to have left the dealings surrounding the Disputed Property to Sandra and Dorothy. Brandon, in his testimony, did not even appear to be particularly concerned with the possibility that Sandra's dealings might not have yielded the Beneficiaries the maximum possible value for their beneficial interests. Ashley undermined this notion, testifying that her tacit approval was based upon her understanding that "the same conditions were going to continue".

It is true that, when first notified of the November 2010 Dorothy Deed and given an opportunity to oppose, dispute, or otherwise disavow the unauthorized actions of Dorothy, they declined to take the opportunity to do so. Linkage Corp., 425 Mass. at 18 (principal must "promptly [ ] disavow" authorized actions of her agent to avoid ratification). However, from their testimony, it was far from clear that they "had full knowledge of all material facts." Colony of Wellfleet, 71 Mass. App. Ct. at 529 (2008) (quotation omitted). Within this context, the Beneficiaries after-the-fact statements that they would not have objected to the November 2010 Dorothy Deed had they known about it does not rise to the level of a ratification, especially considering the fact that Ashley specifically conditioned such statement on her understanding that her interests would remain the same even given this transfer -- which they manifestly did not. [Note 36] Moreover, the fact that the Beneficiaries signed the Beneficiary Authorization (authorizing the Moreland Deed) is behavior contrary to ratification. [Note 37]

Based upon the foregoing discussion, I FIND that the Beneficiaries failed to effectively ratify the ultra vires action of Dorothy to enter into the November 2010 Dorothy Deed without their knowledge and consent.

On this point, Plaintiff argues that, even if there had not been an effective ratification of the November 2010 Dorothy Deed, Plaintiff is entitled to the protection of Article Five of the Trust -- a so-called "conclusive evidence" provision -- which overrides the above-discussed technical defect as to Dorothy's authorization to grant the otherwise facially-valid November 2010 Dorothy Deed. [Note 38]

As held in Penta, a provision (like Article Five of the Trust) "with respect to conclusive evidence of the authority of the trustees of the trust relieve[s] [a third party] of the duty to inquire as to [the trustee]'s actual authority to [transfer property] on behalf of the trust." Penta, 24 Mass. App. Ct. at 641 (emphasis in original). However, if, "[b]ased upon the totality of facts as [the third party] knew them, it would have been unreasonable for [the third party] to fail to inquire as to whether [the beneficiaries] would approve of the conveyance . . . [the third party] was put to the duty of inquiring about the recorded information in the registry of deeds and to further investigate whether [the trustee] was legally able to convey good title to the property." Mello, 63 Mass. App. Ct. at *4; see also Penta, 24 Mass. App. Ct. at 640. ("A person with notice of a limitation of an agent's authority cannot subject the principal to liability upon a transaction with the agent if he should know that the agent is acting improperly."). Thus, a third party dealing with a trust cannot rely on a conclusive evidence provision "in the face of actual knowledge of [the trustee's] lack of authority." Id.

Based upon the rule articulated in Penta, as discussed in Land Court Decision 1, Sandra would not herself be entitled to the protection of Article Five of the Trust. Most notably, Sandra was not a bona fide purchaser for value because she purchased the Disputed Property from her mother for nominal consideration and, that same day, reconveyed her interest to Williams for stated consideration of $78,000.00. [Note 39] More importantly, she had actual knowledge of the requirements of the Trust and of the identity of the Beneficiaries, yet she made no effort to let the Beneficiaries know that she and Dorothy were planning to deed the Disputed Property out of the Trust. [Note 40] Thus, she not only had a duty to inquire as to whether the Beneficiaries did, in fact, approve of the transfer, but she had actual knowledge that Dorothy, as trustee of the Trust, did not have the authorityunder the Trust to enter into the deed. Thus, if it were Sandra here before this court seeking to enforce the November 2010 Dorothy Deed, she would be precluded from doing so, since "[a] person with notice of a limitation of an agent's authority cannot subject the principal to liability upon a transaction with the agent if he should know that the agent is acting improperly." Penta, 24 Mass. App Ct. at 641 (quotation omitted). [Note 41]

However, it is not Sandra now seeking to enforce this deed, it is Plaintiff. As is clear from the facts and history of this case, Plaintiff clearly and obviously had actual knowledge of Dorothy's lack of authorization to grant the November 2010 Dorothy Deed. Indeed, it was Plaintiff that raised that very lack of authority in bringing this case, seeking to invalidate the Sandra Brown Chain of Title. It is laudable that Plaintiff made efforts to try to settle this litigation by obtaining releases from Williams and Sandra. [Note 42] However, in order to ensure the validity of such release, Plaintiff should also have secured written ratifications from the Beneficiaries, which might have cured the problem created by the fact that Plaintiff had actual knowledge of Dorothy's lack of authority. However, having failed to do so, and having entered negotiations for the release granted by Sandra and Williams with full knowledge of the potential infirmities affecting this chain of title, Plaintiff's status as a bona fide purchaser for value is highly questionable. [Note 43]

In view of the foregoing, I FIND that, because he had actual knowledge of Dorothy's lack of authority to grant the November 2010 Dorothy Deed, Plaintiff was not entitled to rely on Article 5 of the Trust to relieve him of his duty to inquire as to Dorothy's actual authority to grant the November 2010 Dorothy Deed. Thus, because I have already found that Dorothy lacked such authority and that the Beneficiaries did not effectively ratify the November 2010 Dorothy Deed, I FIND that the Sandra Brown Chain of Title is invalid and that Plaintiff does not hold valid title to the Disputed Property.

The Moreland Chain of Title

It does not appear to be disputed by Plaintiff that, if the Trust indeed still held title to the Disputed Property as of June 1, 2014, the documents executed by the Beneficiaries, Dorothy [Note 44], and Sandra at or around that time would have been effective, per the requirements of the Trust, to remove Dorothy as trustee of the Trust, to appoint Sandra as her successor trustee, and to authorize Sandra, as trustee of the Trust to negotiate and sell the Disputed Property to Moreland for $85,000.00. [Note 45] Because, as I have found, supra, the Sandra Brown Chain of Title was invalid, at the time of the Moreland Deed the Trust deed indeed held title to the Disputed Property. Thus, it follows that the Moreland Deed would have been effective to convey title to Moreland.

In addition to the foregoing considerations, Moreland appears to be a bona fide purchaser for value. Moreland's stock and trade is to purchase distressed properties at a discount, with the goal of "flipping" said properties at a profit. [Note 46] Moreland's principal, Timothy O'Callaghan, testified that he negotiated and entered into the sale with full knowledge not only of the litany of title disputes affecting the Disputed Property, but also of the pendency of this case, which was on appeal at that time. He thus bargained for the sale of the Disputed Property from Sandra (at a significant discount) knowing that such purchase was "at risk" of being invalidated. The optics of the sale do not cast Moreland in a particularly favorable light. [Note 47] Here, however, the risk paid off.

In sum, I FIND that the Moreland Deed was effective to convey valid title to the Disputed Property to Moreland and that Moreland thus holds valid record title to the Disputed Property.

Conclusion

Based upon the foregoing, I FIND that Moreland holds valid title to the Disputed Property, free and clear of all claims of Plaintiff, Williams, Sandra, the Beneficiaries, Dorothy, the Trust, Fitzhur, and Hutson. Upon payment of all required fees, a certified or attested copy of the accompanying Judgment may be recorded in the Registry and marginally referenced on all relevant documents.

Judgment to enter accordingly.