This is a dispute over the ownership of improved property at 8 Harding Avenue in Malden (the Property). Both the plaintiff, Joseph M. Soscia, and the defendant, DCB Welding and Fabrication, Inc. (DCB Welding), claim title to the Property. The plaintiff asserts his title to the Property through a deed from his father, Joseph Soscia (Soscia Sr.). Although the deed from his father was never recorded, plaintiff contends that his acceptance is implied by his conduct. Conversely, DCB Welding argues that the plaintiff never accepted the deed out of fear of liability for potential contamination on the Property and sought to exercise the benefits of ownership without being willing to accept the liabilities that went along with ownership. DCB Welding claims title to the Property by virtue of a subsequent deed from Soscia Sr. that was recorded with the registry of deeds.
The plaintiff commenced this action on July 9, 2015 and also sought a temporary restraining order, or in the alternative, a preliminary injunction, as well as an ex parte motion for endorsement of a memorandum of lis pendens. The court (Foster, J.) allowed the plaintiffs motion for temporary restraining order and ex parte motion for endorsement of memorandum of lis pendens, restraining DCB Welding from conveying, mortgaging, or otherwise transferring or encumbering title to the Property. A hearing on plaintiffs motion for a preliminary injunction was held on July 21, 2015, and the court (Speicher, J.) allowed the motion in part, enjoining any transfer or encumbrance of the Property, but permitting DCB Welding to continue to occupy the Property. On August 3, 2015, DCB Welding filed its answer and counterclaim for 1) breach of lease and 2) unjust enrichment. A pre-trial conference was held on November 24, 2015, at which the court dismissed DCB Weldings counterclaim without prejudice for lack of subject matter jurisdiction. A trial was held on March 3, 2016. Upon receipt of the parties post-trial submissions on May 2, 2016 and May 10, 2016, this matter was taken under advisement.
For the reasons set forth below, I find and rule that there was a valid and completed conveyance of the Property from Soscia Sr. to the plaintiff, by delivery and acceptance of a deed, making the plaintiff the lawful owner of the Property and rendering the subsequent purported conveyance to DCB Welding void. [Note 1]
Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:
1. The plaintiff resides out of state, at 1114 Redtail Road, Audubon, Pennsylvania with his wife and two children. [Note 2]
2. DCB Welding is a corporation organized and with its principal place of business at 134 Newbury Street, Bay 3, Peabody, Massachusetts. [Note 3]
3. The Somango Nominee Trust is a nominee trust (the Trust) created by a declaration of trust dated May 20, 1996, and recorded with the Middlesex County South District Registry of Deeds (the Registry) in Book 26333, Page 68 (the Trust Instrument). The address of the trust was 63 Sherman Street, Revere. Joseph Soscia Sr., the plaintiffs father, was named as the sole trustee of the Trust pursuant to the Trust Instrument. [Note 4]
4. On May 20, 1996, L & H Tool and Die Co., Inc. conveyed the Property to Soscia Sr., as trustee of the Trust, by deed recorded with the Registry at Book 26333, Page 73 (Trust Deed). [Note 5]
5. Soscia Sr. intended to use the Property for a machine shop. The plaintiff helped his father move into the Property, did maintenance work, and worked there at times as a machinist. The plaintiff understood from discussions with his father that his father intended to ultimately give the Property to him partially as repayment for assisting with the Property and also to help the plaintiff financially. [Note 6]
6. By 2012, Soscia Sr. had moved from Massachusetts to Georgia and stopped using the Property as a machine shop. Soscia Sr. attempted to sell the Property and had it under purchase and sale agreement, but the sale was not consummated. [Note 7]
7. In September 2014, Soscia Sr., as trustee of the Trust, directed his attorney, Alfred Farese, to draw up a deed conveying the Property to his son, Joseph M. Soscia, the plaintiff, as grantee, for consideration of one dollar (the Soscia Deed). Attorney Farese, with the help of his secretary Denise Feudo, prepared the Soscia Deed and an accompanying trustee certificate certifying that the beneficiaries of the Trust had authorized Soscia Sr. to convey the Property to the plaintiff for one dollar. Attorney Fareses office sent the Soscia Deed and the trustee certificate to Soscia Sr. in Georgia, where they were merged into one document, but were otherwise unchanged. Soscia Sr. signed the Soscia Deed and the trustee certificate and had his signature acknowledged by a Georgia notary public on September 16, 2014, and sent the signed and merged deed and trustee certificate back to Attorney Farese with instructions to expect to hear from the plaintiff about the deed. [Note 8]
8. Sometime shortly after the Soscia Deed was sent back to Attorney Farese by Soscia Sr., the plaintiff was notified, either through his father, his stepmother, Jacquelyn Soscia, or Attorney Fareses office, that Soscia Sr. had executed a deed conveying the Property to him. [Note 9]
9. Although there was disagreement between the witnesses as to the reason, there was agreement, and I so find, that when he contacted Attorney Farese about the Soscia Deed, the plaintiff instructed Attorney Farese either to hold off recording the deed or to otherwise delay in the recording of the deed. [Note 10] This was not a rejection of the delivery of the deed. I credit the plaintiffs testimony that his instruction to Attorney Farese (and to Attorney Fareses secretary) was to hold onto and to delay the recording of the deed while he investigated and decided how to take title, that he might not want to take title in his own name, but that he might want to add his daughters name to the deed or take title in some other way. [Note 11]
10. I do not credit Attorney Fareses testimony that the plaintiff rejected the deed because of his concern about contamination of the Property, or for any other reason. There was no competent evidence that the Property was contaminated or that the plaintiff believed it to be contaminated. The plaintiff denied knowledge of any information that the Property was contaminated, and Attorney Fareses testimony as to his conversations with the plaintiff on this subject was equivocal. Although Attorney Farese drew his own conclusion that the plaintiff did not accept the deed, and that the reason was fear of liability concerning contamination, he never testified that he actually told the plaintiff about any contamination on the Property or that the plaintiff had any knowledge that the Property was contaminated. [Note 12] I do not draw the same conclusion. I do not credit Attorney Fareses suggestion that the plaintiff knew about or believed the Property to be contaminated. I find that the plaintiff was not informed that the Property was contaminated, he did not believe it to be contaminated, and he did not act on the basis of any such information.
11. Following the conversations in or about September 2014 between the plaintiff and Attorney Farese, and the plaintiff and Attorney Fareses secretary, Ms. Feudo, in which the plaintiff told them to hold onto the deed, the Soscia Deed remained in the plaintiffs name and in the possession of Attorney Farese and was not recorded. The plaintiff understood the deed to be safely held for his benefit in the possession of Attorney Farese and (correctly) believed that the Soscia Deed did not need to be recorded to convey title of the Property from his father to himself. Although the plaintiff ultimately decided he wanted to eventually have the Property transferred to both him and his daughter, he did not feel any urgency in the need to have the deed recorded, and took no steps to do so before other events intervened. [Note 13]
12. Following his conversations with Attorney Farese and Ms. Fuedo in which he instructed them to hold onto the deed, the plaintiff took steps to rent the Property to generate income. In September or October, 2014, the plaintiff began advertising the Property on Craigslist and speaking to realtors. [Note 14]
13. Around late September or early October 2014, the plaintiff began negotiations with DCB Welding through communications with its president, Christine Bartholomew (Bartholomew) for lease of the Property after she responded to the Craigslist advertisement. No other individual from DCB Welding communicated with plaintiff about the lease. Throughout lease negotiations and during their communications subsequent to the execution of the lease, Bartholomew understood and believed plaintiff to be the landlord and owner of the Property. [Note 15]
14. On October 25, 2014, DCB Welding entered into a lease with the plaintiff for use of the Property (the Lease). DCB Welding paid the plaintiff a $6,000 rental deposit for the first four months rent and intended to take possession of the Property on December 1, 2014. On the Lease, the plaintiff is listed as the landlord. The plaintiff signed the Lease as Joseph Soscia with no middle initial. Although he no longer resided there, the plaintiff used his mothers address of 63 Sherman Street, Revere, instead of his Pennsylvania address on the Lease, because it was the location he stayed at when he visited Massachusetts. [Note 16]
15. After signing the Lease, the plaintiff began work on repairs and improvements to the Property necessary for the commencement of occupancy by DCB Welding. The repairs performed either by the plaintiff or by contractors hired by the plaintiff included electrical work, plumbing, installation of new bathroom fixtures, repair of the roof, installation of a new heater, painting of the interior of the building, levelling of the interior flooring necessary to DCB Weldings welding and fabrication business, demolition of basement walls to create an open floor plan, cleaning of gutters and replacement of downspouts, and work on the fire alarm system. In connection with work performed on the property, the plaintiff hired and paid several professionals, including an electrician, a plumber, painter, mason, and an architect. He also communicated with the building inspector for the City of Malden (the City).
16. The plaintiff spent approximately $15,000 on the repairs and improvements, some of which was his own money and some of which came from DCB Welding deposit payment that Bartholomew authorized him to use for repairs to the Property. The plaintiff also invested a significant amount of his own time repairing and improving the Property. The work required him to make approximately ten trips to Massachusetts over the course of two months, where he stayed at his mothers house in Revere. He made these investments in time and money with the intention that he would eventually get some return in the form of income from the Property. [Note 17]
17. He used his mothers address in Revere as his local address in matters related to the Property.
18. Upon entering the Lease with DCB Welding, the plaintiff also got commercial insurance for welding operations at the Property. Under the insurance policy, the plaintiff was responsible for making the payments. The plaintiff did not use his middle initial on the insurance application. [Note 18]
19. In November 2014, Bartholomew, in her capacity as President of DCB Welding, filed a building permit application for the Property. The application identifies the plaintiff as the owner, but does not use his middle name or initial. The plaintiff testified he could not remember whether the check for the permit application came out of his mothers account or his own, but stated that the account was a shared account. No copy of the check is in the exhibits. [Note 19]
20. Around November 21, 2014, Bartholomew spoke with the building inspector and determined that no certificate of occupancy would be issued by December 1, 2014, her planned date to move into the Property. DCB Welding did not obtain a certificate of occupancy by December 1, 2014. [Note 20]
21. On December 4, 2014, DCB Welding, through its attorney, wrote a letter informing the plaintiff that it believed he had breached the Lease because it could not obtain a certificate of occupancy by its intended move-in date and did not intend to occupy the Property in the future. DCB Weldings attorney requested the $6,000 in rental payments back from the plaintiff. Attorney Farese, as well as the plaintiff, received this letter and discussed it with Soscia Sr. and Jacquelyn Soscia. After being notified that DCB Welding would not be moving into the Property, the plaintiff canceled the insurance policy. [Note 21]
22. After DCB Welding notified the plaintiff it did not intend to occupy the Property, the plaintiff again posted an advertisement on Craigslist. Eventually, he found another tenant and negotiated a new lease with Francisco Rodriguez (Rodriguez) of EastBay Metal, LLC (the Second Lease). During these negotiations, the plaintiff held himself out as the owner of the Property and Rodriguez understood the plaintiff to be the owner. Rodriguez subsequently executed the Second Lease on behalf of EastBay Metal, LLC as tenant of the Property. The Second Lease lists the plaintiff as the landlord. Again, the plaintiff signed his name Joseph Soscia with no middle initial. [Note 22]
23. During negotiations with Rodriguez for the Second Lease, the plaintiff agreed that he would perform certain additional work to the Property prior to EastBay Metal moving in. This work included completing the fire alarm system and getting an approved fire rating from the City with regard to the windows. Plaintiff hired an architect to help prepare a plan for the approved fire rating. He also communicated with the City building inspector about repairs with regards to the fire alarm system and windows. Again, the plaintiff did not use his middle initial in these communications. [Note 23]
24. The plaintiffs stepmother, Jacquelyn Soscia, who had power of attorney for Soscia Sr., began discussing with Attorney Farese the possibility of selling the Property to an outside purchaser. [Note 24]
25. Around December 16, 2014, Attorney Farese began negotiating conveyance of the Property from the Trust to DCB Welding. Attorney Farese did not contact the plaintiff in regards to these negotiations. [Note 25]
26. By email dated March 11, 2015, Jacquelyn Soscia, referring to the Soscia Deed, instructed Attorney Farese to use the prior Deed to finalize this sale to DCB Welding. Attorney Farese understood this to mean that he should change the name on the Soscia Deed to list DCB Welding as the grantee and the consideration from one dollar to $6,000.00" (the DCB Welding Deed). [Note 26]
27. On March 26, 2015, Soscia Sr. passed away. No successor trustee for the Trust was named. After his father died, all communications between the plaintiff and his stepmother ceased. [Note 27]
28. Sometime after the March 11, 2015 email from Jacquelyn Soscia, the Soscia Deed was changed to reflect DCB Welding as the grantee instead of the plaintiff, and to reflect the consideration of $6,000.00 instead of one dollar. Attorney Fareses secretary, Ms. Feudo, created the DCB Welding Deed by taking the Soscia Deed and using Wite-out or a similar product to alter the name of the grantee and the statement of consideration from Joseph M. Soscia and one dollar to DCB Welding & Fabrication, Inc. and $6,000.00, respectively. The DCB Welding Deed has the same date, September 16, 2014, as the Soscia Deed, and the trustee certificate still identifies the plaintiff as the grantee of the Property and the consideration as one dollar, despite the recitation of consideration on the first page of the deed as $6,000. [Note 28]
29. DCB Welding did not pay an additional $6,000 for the deed to the Property. The $6,000 referenced in the DCB Welding Deed was the same $6,000 that DCB Welding had paid the plaintiff in consideration for the Lease. [Note 29]
30. On May 19, 2015, two months after Soscia Sr.s death, Farese mailed the DCB Welding Deed to DCB Weldings counsel. [Note 30]
31. On May 29, 2015, Bartholomew recorded the DCB Welding Deed with the Registry in Book 65447, Page 72, purporting to convey the Property from Soscia Sr., as trustee of the Trust, to DCB Welding. [Note 31]
32. At some time in late May 2015, the plaintiff discovered that the Soscia Deed had been changed to form the DCB Welding Deed, and that the deed had been delivered to DCB Welding and recorded, when he attempted to access the Property and found it was locked with a deadbolt. Plaintiff then called the police. In response to a request from the police, DCB Welding produced the DCB Welding Deed and claimed ownership of the Property. At this time, the police had the plaintiff remove all of his equipment and belongings kept at the Property. [Note 32]
33. Subsequently, the plaintiff had to cancel the Second Lease with EastBay Metal, LLC and return the deposit since Mr. Rodriguezs company was no longer able to move in. EastBay Metal, LLC was never able to move into the Property. [Note 33]
34. On June 16, 2015, the plaintiff sent a letter to DCB Welding informing it of his claim of title to the Property. [Note 34]
35. On June 19, 2015, DCB Welding obtained a Certificate of Occupancy for the Property. DCB Welding moved in shortly thereafter. [Note 35]
36. On June 22, 2015, the plaintiff again sent notice of his title claim to Bartholomew at DCB Welding. On June 25, 2015, the plaintiff sent copies of his letters to DCB Welding. [Note 36]
37. Neither plaintiff, nor DCB Welding, nor Attorney Farese have conducted or reviewed any environmental reports regarding the Property and there is no evidence of any environmental contamination at the Property. [Note 37]
The ultimate dispute in this case turns on whether there was a delivery of the Soscia Deed to the plaintiff and whether the plaintiff accepted the deed either expressly, or implicitly, based on his conduct. In order to effect a conveyance of property, a deed must be delivered by the grantor and accepted by the grantee. Juchno v. Toton, 338 Mass. 309 , 311 (1959). Delivery and acceptance can be made by the parties themselves or their attorneys acting on their behalf. Trial v. Rodrigues, 3 LCR 232 , 233 (1995). Delivery of a deed is essential to its validity and the deed becomes effective only at the time of its delivery. Town of Lexington v. Ryder, 296 Mass. 566 , 568 (1937). The factors essential to delivery are that the grantor intended the deed to effect a present transfer of the property and that the grantee by his conduct assent to the conveyance. Whether there has been a delivery of a deed is ordinarily a question of fact. Frankowich v. Szcuka, 321 Mass. 75 , 77 (1947) (internal citations omitted); Washington Mutual Bank v. American Home Mortgage Servicing, Inc., 88 Mass. App. Ct. 1114 (2015). Particularly important here, it is settled that manual delivery of a recorded deed is not required to work a transfer, and that acts of the grantee when coupled with a purpose of the grantor to treat the deed as delivered are sufficient to pass the title. Bianco v. Lay, 313 Mass. 444 , 448 (1943), quoting Sullivan v. Hudgins, 303 Mass. 442 , 446 (1939). The date on a deed is prima facie evidence of the date of delivery. Graves v. Hutchinson, 39 Mass. App. Ct. 634 , 639-640 (1996). Delivery of a deed is only complete upon acceptance by the grantee. Hawkes v. Pike, 105 Mass. 560 , 562 (1870). Acceptance can be actual or may be implied from the grantees conduct. . . . But there can be acceptance by conduct only if the grantee had knowledge of the conveyance at the time he acted. Juchno v. Toton, supra, 338 Mass. at 311.
Here, it is clear, and I so find, that Soscia Sr. intended to convey the Property to the plaintiff and this intention was communicated to the plaintiff, who understood that he was to receive delivery of the Soscia Deed. Attorney Farese and Ms. Feudo both testified that Soscia Sr. directed Fareses firm to draw up a deed conveying the Property to his son, the plaintiff, as grantee. At trial, the plaintiff testified that his father had expressed a desire to leave the Property to him as repayment for working on the Property as well as to help support his family financially. At the direction of Soscia Sr., Fareses firm prepared the Soscia Deed and trustee certificate, which were then signed by Soscia Sr. and sent back to Farese with instructions to hold the deed for the plaintiff until the plaintiff contacted Farese. There is no dispute that the plaintiff contacted Attorney Farese and that Attorney Farese informed the plaintiff that the deed was available for his benefit. This constituted an attempted delivery of the Soscia Deed. The next question to be answered is whether the delivery of the deed was completed by acceptance by the plaintiff.
There was contradictory evidence presented regarding conversations that took place between the plaintiff and Attorney Farese following the delivery of the Soscia Deed. The parties agree that the plaintiff asked Attorney Farese and Ms. Feudo not to record the deed, but disagree as to whether this was a rejection of the attempted delivery of the deed, or simply an instruction to hold the deed before recording while the plaintiff determined how he wanted to take title. I find and rule that the plaintiffs discussions with Attorney Farese and Ms. Feudo did not constitute a rejection of delivery of the deed, and that his subsequent conduct sufficiently demonstrated his acceptance of the delivery of the deed so as to complete the conveyance of the Property to him.
In characterizing the plaintiffs instructions to Attorney Farese and Ms. Feudo not to record the deed, DCB Welding misconstrues the import of an instruction not to record. It is true that recording alone does not constitute acceptance of a deed. See Barnes v. Barnes, 161 Mass. 381 , 383 (1894) (recording of deed by one who was not agent of grantee, where grantee had no knowledge of the attempted conveyance, did not effect a conveyance of property); see also, Hawkes v. Pike, supra, 150 Mass. at 563 . However, the converse, that there can be no conveyance without recording, is not true. A lengthy delay in the recording of a deed will not negatively affect the effectiveness of a conveyance. Graves v Hutchinson, supra, 39 Mass. App. Ct. at 640-641. Similarly, a conveyance remains effective as between the parties to the conveyance and as to those with knowledge of the conveyance, even without recording the deed in the registry of deeds. Recording of [a] deed [is] not required to complete [a] conveyance. The deed, being duly executed and delivered, [is] sufficient, without any other act or ceremony, to convey [the property]. Solans v. McMenimen, 80 Mass. App. Ct. 178 , 181 (2011), quoting G. L. c. 183, § 1. It is well settled that a deed duly signed, sealed and delivered is sufficient as between the original parties to it to transfer the whole title of the grantor to the grantee, although the instrument is not acknowledged or recorded. Cooper v. Monroe, 237 Mass. 192 , 198 (1921). The recording statute, G. L. (Ter. Ed.) c. 183, § 4, does not affect the validity upon delivery of an unrecorded deed as between the parties to it or as to persons with notice. Aronian v. Asadoorian, 315 Mass. 274 , 276 (1943) (emphasis added).
The plaintiffs conduct, following his conversations with Attorney Farese and Ms. Feudo, evinced his acceptance of the deed. At the time of this conduct, he had actual knowledge, through conversations with either Soscia Sr., his stepmother, or Attorney Fareses office, that Soscia Sr. had executed the Soscia Deed on September 16, 2014 and that Farese had been instructed to deliver it to him. The plaintiffs conduct was consistent with his acceptance of the delivery of the deed. He advertised the Property for lease on Craigslist and spoke to realtors. He negotiated and entered into a lease with Bartholomew for lease of the Property by DCB Welding. Throughout the course of these negotiations, the plaintiff held himself out to be the owner of the Property and Bartholomew testified that she believed the plaintiff to be the owner. Eventually, the negotiations led to an agreement for use of the Property and the Lease was signed on October 25, 2014. After signing the Lease, the plaintiff invested his own funds and with Bartholomews permission used DCB Weldings deposit to make repairs and improvements to the Property and to generally prepare it for occupancy by DCB Welding as his tenant. He insured the Property with due regard to the particular use to which it was to be put by his intended lessee.
After DCB Welding informed the plaintiff that it would not accept occupancy of the Property, the plaintiff, still acting as one who believed he was the owner of the Property, again posted an advertisement on Craigslist to find a new tenant to lease the Property. He ultimately negotiated a Second Lease with Rodriguez of EastBay Metal, LLC. As with Bartholomew, the plaintiff held himself out as the owner, and Rodriguez testified that he understood the plaintiff to be the owner of the Property. Both the Lease and Second Lease list the plaintiff as the landlord. The plaintiffs continued work to fit out the Property for his new tenant ceased only when he was locked out by DCB Welding. The plaintiffs conduct, including without limitation the execution of the Lease with DCB Welding and the plaintiffs investment in the repair and improvement of the Property, sufficiently evinced and accomplished the acceptance of the delivery of the Soscia Deed. See, Juchno v. Toton, supra.
DCB Welding attempts to use the fact that the plaintiff signed his name without his middle initial on several legal documents (the Lease, Second Lease, building permit application, and application for property insurance) as evidence that he denied and failed to accept ownership of the Property. Because the plaintiffs name and his fathers name were both Joseph Soscia, DCB Welding maintains that the plaintiff dropped the middle initial M in a deliberate attempt to conceal or obscure the true ownership of the Property and maintain his ability to disclaim liability in the event contamination was discovered on the Property. Further, DCB Welding argues that the plaintiffs use of his mothers address in Revere in the Lease, the same address his father had noted in the original deed for the Property, is further evidence of his intention to disclaim ownership.
I decline to reach the conclusion argued by DCB Welding. The suggestion that there was some illicit motive in the failure of the plaintiff to use his middle initial and in his use of his mothers address is undercut by my finding that he had no knowledge of or any reason to know of any actual or alleged contamination on the Property. I further decline to ascribe such a motive to the plaintiffs failure to use his middle initial and his use of his mothers Revere address, because on all the evidence I accept as truthful his testimony that his failure to use his middle initial was not with any such intent, and that his use of his mothers address was for the convenience of being able to use a local address.
Aside from DCB Weldings speculative accusations, which I do not accept or credit, there is nothing in the record to support the argument that the plaintiff acted in any way other than as the true owner of the Property. The record before me demonstrates that there was a valid conveyance from Soscia Sr. to the plaintiff. Further, I find that, although the Soscia Deed was not recorded prior to the subsequent conveyance to DCB Welding, the conveyance from Soscia Sr. to the plaintiff was binding and effective so as to convey title not only as between Soscia Sr. and the plaintiff, but so as to preclude DCB Welding from receiving title to the Property. This is because I find that DCB Welding accepted delivery of its deed with actual knowledge of the earlier, unrecorded conveyance to the plaintiff. Bartholomew, the president of DCB Welding, in negotiating with the plaintiff, understood him to be the owner of the Property. Moreover, the deed to DCB Welding was plainly and clearly an alteration of the deed that had conveyed title to the plaintiff. The name of the grantee as well as the consideration for the deed were typed over a Wite-out obliteration of another grantees name and a different stated monetary consideration. That the obliterated name was the plaintiffs was apparent on the third page of the document, which, by apparent oversight, still identified the plaintiff as the intended grantee. [Note 38] Bartholomew personally recorded the deed, and I find that she was personally aware of the obvious alterations to the deed and that the deed had originally been delivered to the plaintiff.
I find, therefore, the subsequent conveyance from Soscia Sr., as trustee of the Trust, to DCB Welding to be invalid. It is also invalid because the deed to DCB Welding, even had DCB Welding not taken with actual knowledge of the conveyance to the plaintiff, was altered after the plaintiff had accepted it. Although the DCB Welding Deed was recorded and the Soscia Deed was not, the DCB Welding Deed, an altered document delivered with knowledge by the subsequent grantee of the earlier conveyance, did not divest the plaintiff of his estate. The alteration of the name of the grantee, in a deed already delivered, but not recorded, does not divest the title from the original grantee and vest it in the substituted grantee. Carr v. Frye, 225 Mass. 531 , 532-533 (1917) (the erasure of original grantees name and insertion of another did not divest grantee of his estate; it was the original grantees property though the record title was in anothers name); Lima v. Lima, 30 Mass. App. Ct. 479 , 487 (1991); Smigliani v. Smigliani, 358 Mass. 84 , 90-91 (1970) (finding the altered instrument ineffective as a conveyance).
Attorney Farese and Ms. Feudo testified that they created the DCB Welding Deed by changing the existing Soscia Deed using Wite-out or some similar product, writing in the new grantee where the plaintiffs name had previously been, and changing the statement of consideration to $6,000. The DCB Welding Deed bears the same date, September 16, 2014, as the Soscia Deed. Likewise, the trustee certificate, part of the same document as the DCB Welding Deed, contains the September 16, 2014 date and still identifies the plaintiff as the grantee of the Property and the consideration as one dollar, both in conflict with the first page of the DCB Welding Deed. Accordingly, while the alteration of the Soscia Deed to form the DCB Welding Deed may have invalidated the instrument itself, it did not divest the plaintiff of his title to the Property.
For the reasons stated above, I find that the plaintiff is the owner of the Property and neither DCB Welding nor the Trust has any right, title, or interest in the Property.
Judgment will enter in accordance with this Decision.
[Note 1] The court ordered service on the trustees and beneficiaries of the Somango Nominee Trust by publication. No one having appeared on behalf of the Trust, the Trust is defaulted, and judgment will enter against it pursuant to Mass. R. Civ. P. 55(a) and 55(b).
[Note 2] Stipulation of Facts (SOF), ¶ 1; Trial Transcript (Tr.) 17-18.
[Note 3] SOF, ¶¶ 2-3.
[Note 4] SOF, ¶¶ 4-6; Tr. 20, 67; Exh. 1.
[Note 5] SOF, ¶¶ 9-10; Exh. 2.
[Note 6] Tr. 1:19-22.
[Note 7] Tr. 68-69, 113-115. There is insufficient admissible evidence in the trial record for me to credit Attorney Alfred Fareses testimony that the reason the sale fell through was because of contamination that prevented the buyers from getting a mortgage. This testimony, although not objected to on hearsay grounds, was equivocal at best and was also at least double hearsay: I believe the information that was conveyed to my office was that there had been some sort of contamination problem and that the people who were buying it couldnt get a mortgage.
[Note 8] SOF, ¶ 11; Tr. 19-20, 22-23, 29, 100-102, 117-118, 120, 131; Exh. 3.
[Note 9] SOF, ¶¶ 12-13; Tr. 22-23, 71-72, 102-103, 119-120.
[Note 10] Tr. 23, 121, 123
[Note 11] Tr. 23-24, 72-74, 135.
[Note 12] Attorney Farese testified as follows:
Q. And at that time did you tell him the reason that the buyers were backing out (the alleged contamination)?
A. I probably did, but I dont have any specific memory of it. I think I did, but Tr. 116. He further testified:
Q. Did he bring up contamination at any point?
A. I believe that was part of the - - one of the specific reasons that he had indicated. So it appeared to me that he didnt want to accept the property because there was a contamination issue Tr. 122.
[Note 13] SOF, ¶ 14; Tr. 23-25, 72-77, 121-124, 135-136.
[Note 14] Tr. 27-28, 84-85.
[Note 15] SOF, ¶¶ 15-17; Tr. 27-29, 84, 140-142, 146, 149-150.
[Note 16] SOF, ¶¶ 18-19; Tr. 28-30, 56-58, 67-68, 79, 86, 141-142, 150-151; Exh. 4.
[Note 17] Tr. 30-42, 46-52, 81-86, 88, 95, 142-143, 150-152; Exh. 5-7; 12.
[Note 18] Tr. 52-53, 91-92; Exh. 8.
[Note 19] SOF, ¶ 20; Tr. 54-55, 91-93, 144-145; Exh. 9.
[Note 20] Tr. 158-159, 163.
[Note 21] SOF, ¶ 21; Tr. 53-56, 79-82, 94-95, 124-126, 165; Exh. 10.
[Note 22] Tr. 58-59, 61, 89, 167-170, 176-177; Exh. 11.
[Note 23] Tr. 61-63, 171-174; Exh. 12.
[Note 24] Tr. 19, 103-105; Exh. 13.
[Note 25] SOF, ¶ 22; Tr. 103-104.
[Note 26] SOF, ¶ 30; Tr.104-105, 108-109; Exh. 13.
[Note 27] SOF, ¶¶ 7-8; Tr. 66, 73-74.
[Note 28] SOF, ¶¶ 24-29, 31; Tr. 25-26, 108-111, 131-134; Exh. 3.
[Note 29] Tr. 147.
[Note 30] SOF, ¶ 32; Tr. 105; Exh. 14.
[Note 31] SOF, ¶ 23; Tr. 66, 165-166.
[Note 32] Tr. 63-65, 96-97.
[Note 33] Tr. 63-65, 174-175.
[Note 34] SOF, ¶ 33.
[Note 35] SOF, ¶¶ 34-35.
[Note 36] SOF, ¶¶ 36-37.
[Note 37] SOF, ¶ 38.
[Note 38] Exhibit 3.