MISC 16-000331

December 14, 2016

Worcester, ss.



The question to be answered in this quiet title action is whether the recording of an execution by a judgment creditor, without more, severs the joint tenancy of the owners of the subject property, thus converting their ownership into a tenancy in common and defeating one co-owner's right of survivorship upon the death of the other. The answer may seem esoteric, requiring, as it does, an analysis of the archaic language of our statutes pertaining to the levy of executions on land, but the answer has very real consequences, as it determines whether an undivided half-interest in the subject property goes, through right of survivorship, to plaintiff Kelly McHugh ("McHugh"), who was a joint tenant with her deceased co-owner, James Zanfardino, Sr. Alternatively, if the joint tenancy was severed by the recording of the execution, the undivided half interest will go to Zanfardino, Sr.'s heirs, his adult children, James Zanfardino, Jr. and John Zanfardino.

McHugh commenced this action seeking to quiet title to two condominium units, Units 1 and 3, at the 154 Greenwood Street Condominium, located at 154 Greenwood Street in Worcester (the "Units"). She claims that she held the two condominium units in joint tenancy with James Zanfardino, Sr., and that upon his death she became sole owner of the property by right of survivorship. Zanfardino, Sr.'s sons, defendants James Zanfardino Jr. and John Zanfardino, are Zanfardino, Sr's heirs and claim that at the time of Zanfardino, Sr.'s death McHugh and Zanfardino, Sr. were tenants in common, and his share of the Units thus passed to them upon his death.


The plaintiff filed her complaint on June 16, 2016. On motion of the defendants, the court, on June 21, 2016, issued a preliminary injunction enjoining McHugh from selling or otherwise conveying her interest in the Units, but also enjoining the defendants from interfering with McHugh's exercise of rights of ownership of the Units. The plaintiff filed a complaint for contempt on July 11, 2016, and an emergency motion to quash a notice of deposition and for a protective order. On July 15, 2016, the plaintiff filed a motion for summary judgment. The defendants filed a motion to dismiss, and a motion to dismiss the complaint for contempt, as well as a motion to stay the plaintiff's motion for summary judgment. On July 21, the court dismissed the complaint for contempt, denied the defendants' motion to dismiss for failure to join an indispensable party, and ordered the defendants to cooperate with the plaintiff in her exercise of ownership of the property pursuant to the preliminary injunction. The court stayed discovery pending a decision on the plaintiff's motion for summary judgment. Defendant James Zanfardino, Jr. filed his answer on August 10, 2016. A hearing was held on the plaintiff's motion for summary judgment on September 29, 2016, after which the motion was taken under advisement.


The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the motion for summary judgment:

1. As of June, 2005, Kelly HcHugh and James Zanfardino, Sr. owned the three-unit residential building at 154 Greenwood Street in Worcester, as joint tenants with a right of survivorship.

2. On May 11, 2006, McHugh and Zanfardino, Sr. submitted the property at 154 Greenwood Street to the provisions of G. L. c 183A, converting it into a three-unit condominium by filing a master deed recorded at the Worcester District Registry of Deeds on May 12, 2006 in Book 38949, Page 353.

3. On May 11, 2006, [Note 1] McHugh and Zanfardino, Sr. sold Unit 2 to Mandy Perry by a deed recorded with the Registry on July 13, 2006 in Book 39162, Page 149.

4. On October 18 and 23, 2006, McHugh and Zanfardino, Sr. executed and delivered separate mortgages on Units 1 and 2 to 1-800 Eastwest Mortgage Co. The mortgages, in the amounts of $123,000 and $99,400.00, were recorded with the Registry on October 24, 2006, respectively in Book 40021, Page 134 and Book 40021, Page 156.

5. On August 11, 2008, a writ of execution in the amount of $4,989.65 was recorded against Kelly McHugh in the Registry in Book 43191, Page 358. The execution was brought forward by a notice recorded in the Registry on July 8, 2014 in Book 52528, Page 212.

6. On April 22, 2016, Zanfardino, Sr. died intestate.

7. Zanfardino, Sr.'s heirs are James Zanfardino and John Zanfardino.


"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). "An opposing party's failure to file a cross-motion shall not preclude the court from granting dispositive relief to the opposing party if such relief is appropriate." Land Ct. Rule 4. [Note 2]

The sole dispositive issue raised on summary judgment is a determination of the time at which a writ of execution against a joint tenant's interest severs a joint tenancy, thereby converting it to a tenancy in common. The defendants argue that a joint tenancy severs when a writ of execution on one tenant's interest is first recorded, and McHugh contends that the joint tenancy is not severed until the completion of the levy by sale or setoff. McHugh and Zanfardino, Sr. owned the property at 154 Greenwood Street, and later the two remaining condominium units, as joint tenants. After McHugh and Zanfardino, Sr. had converted the property into a condominium and sold Unit 2, but still owned Units 1 and 3, a creditor recorded a writ of execution against McHugh's interest, but took no further action to complete the levy, other than to keep the execution from expiring by bringing it forward on July 8, 2014. See G.L. c. 236, §49A. Zanfardino, Sr. subsequently died. If the joint tenancy remained in existence at this point, Zanfardino, Sr.'s interest would have passed to the plaintiff by the right of survivorship. See Petition of Smith, 361 Mass. 733 , 737 (1972). However, if the joint tenancy severed upon the recording of the writ of execution, as the defendants argue, then McHugh and Zanfardino, Sr. held the property as tenants in common at the time of his death, and his interest would pass to the defendants as his heirs. Whether the recording of the execution alone severed the joint tenancy turns entirely upon the interpretation of G.L. c. 236, §12, which governs the effect of a levy on execution on property owned by either joint tenants or tenants in common.

"Our primary duty in interpreting a statute is to effectuate the intent of the legislature in enacting it." Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 , 601 (2010). "Statutory language is the principal source of insight into legislative purpose." See Local 589, Amalgamated Transit Union v. Massachusetts Transportation Authority, 392 Mass. 407 , 415 (1984). Nonetheless, "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Com. v. Garcia, 82 Mass. App. Ct. 239 , 245 (2012), quoting United States v. Costello, 666 F.3d 1040, 1043 (7th Cir.2012). Accordingly, "the court begins by looking at the words of the statute—but not in isolation from the statute's purpose or divorced from reason and common sense." DiGiacomo v. Metro. Prop. & Cas. Ins. Co., 66 Mass. App. Ct. 343 , 346 (2006). The court "do[es] not employ the conventions of statutory construction in a mechanistic way that upends the common law and fundamentally makes no sense," Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 , 458 (2007), nor should it "make a construction which may produce an unworkable scheme or one which allows for frustration of function." Paquin v. Bd. of Appeals of Barnstable, 27 Mass. App. Ct. 577 , 580 (1989).

"When a statute is 'capable of being understood by reasonably well-informed persons in two or more different senses,' it is ambiguous." Meyer v. Town of Nantucket, 78 Mass. App. Ct. 385 , 390 (2010), quoting Falmouth v. Civil Serv. Comm'n., 447 Mass. 814 , 818 (2006). "Where the text is unclear or ambiguous, 'a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" In re E.C., 89 Mass. App. Ct. 813 , 816 (2016), quoting Telesetsky v. Wight, 395 Mass. 868 , 872 (1985). In doing so, the statute must be read as a whole. See In re Jamison, 467 Mass. 269 , 276 (2014).

The statute at issue here, Chapter 236 of the General Laws, governs the process for collecting on an execution after judgment. See generally G.L. c. 236. When a party acquires a writ of execution, it "creates a lien which is then perfected by a levy of execution." Lyons v. Bauman, 31 Mass. App. Ct. 214 , 216 (1991). "A levy is the taking or seizure of property pursuant to a writ of execution." LaChance v. Peerless Ins. Co., 36 Mass. App. Ct. 451 , 453 (1994). The levy process requires an officer to give notice to the debtor, deposit at the registry of deeds a copy of the execution and a memorandum, appoint appraisers if necessary, and record a return on execution. See G.L. c. 236, §§3, 4, 21, 23. A levy on execution may be completed either by sale or set-off. Although set-off is no longer commonly used, it operates "as an involuntary conveyance to the creditor of a portion of the debtor's real estate which has been levied against." LaChance v. Peerless Ins. Co., supra, 36 Mass. App. Ct. at 453.

G.L. c. 236, §12, provides for the levy by set-off of property that, as in the present case, has multiple owners. It states as follows:

If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant. If the whole share of the debtor is more than sufficient to satisfy the execution, the levy shall be made upon such undivided portion of such share as will, in the opinion of the appraisers, satisfy the execution, and such undivided portion shall be held in common with the debtor and co-tenant.

The parties agree that the joint tenancy terminates at the point that the land is "taken on execution," but dispute the meaning of this phrase. McHugh argues that land only becomes "taken on execution" for the purposes of G.L. c. 236, §12 (and, presumably, the levy "made" for purposes of G.L. c. 236, §43), at the completion of the levy process after the property has been appraised and sold, and thus only at that point does the joint tenancy between debtor and co- tenant become a tenancy in common, to facilitate the tenancy in common created between creditor and co-tenant. She asserts that the two sentences of Section 12 are alternative applications, the first to be utilized when the execution encompasses the entirety of the debtor's share, and the second for an execution on only a portion of that share. Defendants argue that a "taking" of the land in this context is a term of art that does not refer to an actual divestiture of title, but rather simply signifies the beginning of the levy. They argue that Section 12 contains two steps: the first sentence simply severs the joint tenancy between debtor and co-tenant when the land is "taken on execution", which is an initial discrete event occurring upon recording of the execution; the second sentence, providing that "the levy shall be made," details the subsequent process for completing the levy and transferring title.

"[T]he meaning of a statute must, in the first instance, be sought in language in which the act is framed…" Commonwealth v. Dalton, 467 Mass. 555 , 557, quoting Commonwealth v. Boe, 456 Mass. 337 , 347 (2010). The statute provides no definition for what it means for land to be "taken" in the context of a levy. "'Words that are not defined in a statute [as here,] should be given their usual and accepted meanings,' derived 'from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." MacLaurin v. City of Holyoke, 475 Mass. 231 , 239 (2016), quoting Seideman v. Newton, 452 Mass. 472 , 477–478 (2008). The usual definition of the word "take" is "[t]o obtain possession or control, whether legally or illegally." Take, Black's Law Dictionary (10th ed. 2014). As the plaintiff argues, a deprivation of possession or control points towards the completion of the levy rather than its initiation, for it is only upon completion that such possession actually passes to the creditor. See Taylor v. Robinson, 84 Mass. 562 , 565 (1861). Nonetheless, it is necessary to divine the intended meaning of the word not only from its own plain definition, but also through the context in which it appears, as terms in a statute are to be interpreted in light of the other words surrounding them. See Chin v. Merriot, 470 Mass. 527 , 535 (2015). The language surrounding the appearance of the term "taken on execution" indicates that it does indeed acquire a peculiar meaning for the purpose of Chapter 236. When viewed in relation to other distinct steps in the levy process, it does appear that the land is deemed "taken" at some point prior to the completion of the levy. See G.L. c. 236 §43 ("A levy by set–off or sale shall be considered as made at the time when the land is taken, and the subsequent proceedings and the officer's return thereof shall be valid…") (emphasis added); G.L. c. 236, §4 ("If land...is taken on execution, the officer shall forthwith deposit in the registry of deeds for the county or district where the land lies a copy of the execution…") (emphasis added); G.L. c. 236, §23 (requiring a return on execution to state "[f]irst, [t]he time when the land was taken on execution… second, …that the appraisers were appointed… third, that the appraisers were duly sworn… fourth, that they appraised and set off the land …").

Further supporting this interpretation is its treatment in past cases. Apart from the "words of the law itself… we may also enlist the aid of other reliable guideposts," and accordingly may "consider the statute in light of the common law." Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 , 454 (2007). In cases interpreting G.L. c. 236, the courts have treated land as taken at a point prior to the completion of the levy. See Taylor v. Robinson, supra, 84 Mass. at 564 ("… some time must necessarily elapse after land is taken before the levy is completed, in order to give notice to the debtor, appoint appraisers, and determine the quantity and value of the land required in order to satisfy the execution…"); Cowls v. Hastings, 50 Mass. 476 , 480 (1845) ("the levy may be considered as taking effect from the time of the original seizure or taking of the land on the execution, and so the officer might, in carrying out this principle, date his entire proceedings as of the day of the commencement of the levy…"); Still Assocs., Inc. v. Porter, 24 Mass. App. Ct. 26 , 30 (1987) ("The property was 'taken on execution' no earlier than January 6, 1978. On that date FDIC placed the execution in the hands of a deputy sheriff who 'forthwith' recorded the necessary documents."). See also Crocker's Notes on Common Forms § 782 (7th Edition, 1955) ("Having made the taking, the officer may proceed by levy by set-off or by sale."). Hall v. Crocker, in particular, pinpoints the time at which the property is "taken on execution" as when the officer accepting the execution undertakes any action for the purpose of pursuing it. See Hall v. Crocker, 44 Mass. 245 , 249 (Mass. 1841). [Note 3] As the defendants suggest, the date the execution is recorded in the registry of deeds may thus be the date the land is "taken on execution."

Nonetheless, Section 12's provision that property "may be taken on execution, and shall thereafter be held in common", does not entail a severance of the joint tenancy immediately upon recording of the execution. "Although statutory language 'is to be construed as written, in keeping with its plain meaning,'… the language is not to be read in 'isolation,' but '[w]hen the meaning of a statute is brought into question, a court properly should read other sections and should construe them together.'" Commissioners of Bristol Cty. Mosquito Control Dist. v. State Reclamation & Mosquito Control Bd., 466 Mass. 523 , 529 (2013) (internal citations omitted). Here, Section 12 functions retrospectively in conjunction with G.L. c. 236, §43; like the post- completion relation back of the creditor's title provided in Section 43, a joint tenancy is indeed considered to have severed at the start of the levy through Section 12, but this is a determination made only once the levy is completed, and is not implemented until that time.

Section 43 provides, "A levy by set–off or sale shall be considered as made at the time when the land is taken, and the subsequent proceedings and the officer's return thereof shall be valid…" G.L. c. 236, §43. "[T]he purpose of fixing definitively when a levy should take effect was to determine the point of time when the title of the creditor should vest…" Taylor v. Robinson, supra, 84 Mass. at 564. Title is thus considered as vesting at whatever time the levy began, such as at the date of recording, but only by relating back to the date of recording after completion of the levy; this relation back only occurs if and when the levy is actually completed by undertaking the remaining steps necessary to complete the set-off or sale of the property, including the appraisal of the property and the completion of the sale. See G.L. c. 236, §43; Haskell v. Varina, 111 Mass. 84 , 85 (1872) ("[T]he levy takes effect as of the date of the seizure, if the appraisement and the completion of the levy are pursued with reasonable diligence."); Hall v. Crocker, 44 Mass. 245 , 247 (1841) ("It seems to be a well settled rule, that the levy shall be considered as taking effect, by relation, from the time when the legal proceedings for making the levy of execution commence, if followed up seasonably by a compliance with the requisites of the law.") (emphasis added); Taylor v. Robinson, supra, 84 Mass. at 564-565 ("[A] levy is to be considered as made at the time when the land is taken…But by making the subsequent steps in perfecting the levy to have a relation back to the date of the taking, the right of the creditor is fully protected against all intervening titles…Until that time [when the subsequent steps are completed] the debtor or those claiming under him may retain the possession and use of the land, and enjoy the rents and profits; no title or seisin passes to the creditor, nor is the execution satisfied.").

If there is no vesting of title in the creditor without completion of the levy, then there is similarly no purpose to severing a debtor's joint tenancy to facilitate the creditor's impending co- tenancy until the levy has been completed. Just as Section 43 establishes that title is considered vested in the creditor as of the date the land is "taken," but only by relation back upon the completion of the levy, Section 12 establishes that the joint tenancy is considered severed as of that same date, but also, only retroactively upon completion of the levy. Thus, while land shall ultimately be deemed to have been "taken on execution" at the initial step of recordation, the consequential Section 12 severance of a joint tenancy is not immediate, but rather a retroactive determination that can be made only after completion of the levy.

Construing the severance accomplished by Section 12 so that it aligns with the vesting of title provided by Section 43 is consistent with the result that would logically be obtained by applying the common law of joint tenancies. "Statutes are also to be construed in the light of preexisting common law." Com. v. Conway, 2 Mass. App. Ct. 547 , 552–53 (1974). Joint tenancies have long been characterized by the four unities of time, title, interest, and possession. Knapp v. Windsor, 60 Mass. 156 , 161 (1850). A joint tenancy terminates upon a disturbance of these unities, such as where a tenant "aliens his interest, or creditors levy on his interest, or he partitions under G.L. c. 241, s 1." W. v. First Agr. Bank, 382 Mass. 534 , 552 n.4 (1981). Within the context of a levy, upon its completion the creditor ultimately obtains title and a right to possession. See Taylor v. Robinson, supra, 84 Mass. at 565. By application of the common law, this transfer of title to a creditor would disturb the unities and mandate a severance of the joint tenancy. By operation of the statute, Section 43 causes this transfer of title to relate back to the date of initiation of the levy. Applying the aforementioned common law rule in the context of this statutory effect, the breaking of the unity of title would relate back to that same date, and the joint tenancy would accordingly be considered as severed on that date. Section 12 achieves this same result, as it likewise severs the joint tenancy at the date that the transfer of title relates back to; yet this relation back cannot occur until the levy is complete, and the severance occasioned by Section 12 must consequently be delayed until that point as well.

The defendant argues that an interpretation harmonizing Section 12 with the common law renders the statute meaningless and ineffective, because it would only serve to repeat the already well-established common law rule that a joint tenancy severs upon one tenant's conveyance of his or her interest. However, while Section 12's overall operation is consistent with this common law rule, its relation back still serves a particular, specific function that supplements rather than mimics the generally established rule. Moreover, though the general effect of Section 12 may indeed be to reinforce the well-worn precept that severance occurs upon transfer of title, a statute is not meaningless simply because it codifies rules existing in the common law. To the contrary, the persuasiveness of defendant's interpretation, which would sever the tenancy far before any transfer of title, is in fact impeded by its direct derogation from the common law, as "[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Pineo v. White, 320 Mass. 487 , 491 (1946); EMC Corp. v. Comm'r of Revenue, 433 Mass. 568 , 571 (2001) ("It is not to be lightly supposed that radical changes in the law were intended where not plainly expressed."). See also Suffolk Const. Co. v. Div. of Capital Asset Mgmt., supra, 449 Mass. at 458 ("We do not employ the conventions of statutory construction in a mechanistic way that upends the common law and fundamentally makes no sense."). The language of the statute evidences no clear intent to contradict the common law. At most, it ambiguously provides for two competing interpretations, one comporting and the other conflicting with common law. Given the lack of any clear intent to derogate from the centuries-old principles governing joint tenancies, the statute should be read in a manner consistent with the common law rule that severance of a joint tenancy accompanies disturbance of the unities, meaning, in this case, that the tenancy is only severed upon the transfer of title.

Other courts have come to this same conclusion when evaluating the impact of unperfected executions on joint tenancies. These courts consider a levy that has been commenced but not completed to have no greater an impact than a judgment lien, and accordingly have held that a joint tenancy severs only upon completion of the levy and transfer of title. See Grothe v. Cortlandt Corp., 11 Cal. App. 4th 1313, 1322 (1992) (collecting cases, noting that "nothing in these cases is inconsistent with our conclusion that a recorded levy alone, signifying nothing more than an official designation of the property subject to execution, does not sever the joint tenancy.") (emphasis in original); Knibb v. Sec. Ins. Co. of New Haven, 121 R.I. 406, 411 (1979) [Note 4]; Van Antwerp v. Horan, 390 Ill. 449, 454 (1945). [Note 5] A number of states have gone even further to hold that a joint tenancy does not sever even after sale, but instead continues until the debtor's right of redemption has been entirely foreclosed. See Jackson v. Lacey, 408 Ill. 530, 532 (1951); Frederick v. Shorman, 259 Iowa 1050, 1060 (1966) [Note 6]; Local Realty Co. v. Lindquist, 96 Utah 297, 303 (1938). There does not, however, appear to be any state that has shifted the moment of severance in the other direction to hold that a joint tenancy in real property severs prior to the completion of the levy.

The Supreme Judicial Court's treatment of tax takings further suggests that the nature of ownership is not affected until a full transfer of title. Because assessed taxes automatically operate as a lien on property, when an individual fails to pay these taxes, a municipality may take that resident's land by creating and recording an instrument of taking. See G.L. c. 60, §§37, 53-4. At the time this instrument is recorded, the municipality acquires title to the land, and the right to enter into possession. See G.L. c. 60, §§53-4; Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 424 (2004). In this way, a recorded tax taking is far closer to perfection than a recorded execution, which passes no title or right to possession upon recording. See Taylor v. Robinson, supra, 84 Mass. at 565. Yet even in the event of a tax taking, the court has recognized only a limited impact on the nature of ownership prior to the completion of the process. Though the municipality may have some form of title, it does not have absolute title until the right of redemption has been foreclosed. See G.L. c. 60, §53-54; Wulsin v. Bainton, No. 10-P-619, 2011 Mass. App. Unpub. LEXIS 1005, at *11 (App. Ct. Sep. 13, 2011) (period of adverse possession not interrupted by tax taking where town did not foreclose or take possession). The court likewise found in Hanna v. Town of Framingham that, for the purposes of appealing a zoning bylaw, the taxpayer remains the owner of that property, even where the town has recorded an instrument of taking, if the town has not actually taken possession or foreclosed the right of redemption. See Hanna v. Town of Framingham, supra, 60 Mass. App. Ct. at 425. This suggests that the mere recording of an instrument of tax taking does not alter the fundamental nature of ownership until a true divestiture of all interest in the property comes about.

Finally, it is necessary to examine the underlying effect of each interpretation to determine whether it is sensible and in consonance with the overall purpose of the statute, as "a statute should be construed in a fashion which promotes its purpose and renders it an effective piece of legislation in harmony with common sense and sound reason." Com. v. Soldega, 80 Mass. App. Ct. 853 , 855 (2011), quoting Commonwealth v. Griswold, 17 Mass. App. Ct. 461 , 462 (1984). "Statutory language is the principal source of insight into legislative purpose." See Local 589, Amalgamated Transit Union v. Massachusetts Transportation Authority, 392 Mass. 407 , 415 (1984). "If a liberal, even if not literally exact, interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, such interpretation is to be adopted rather than one which will defeat the purpose." Joseph Baker's Case, 55 Mass. App. Ct. 628 , 631 (2002), quoting from North Shore Realty Trust v. Commonwealth, 434 Mass. 109 , 112 (2001).

The language and effect of the provisions of G.L. c. 236, taken together as a whole, undoubtedly indicate that the chapter's most general purpose is to provide a process for the satisfaction of a judgment that sufficiently protects the rights of both debtor and creditor. Acknowledging that this is a statement of purpose of exceptional generality, the court still need delve no further, as accomplishment of this purpose is supported by an interpretation of Section 12 that precludes the premature severance of joint tenancy sought by the defendants: such severance serves to accomplish no beneficial purpose whatsoever as to either debtors or creditors, whereas severance at the completion of the levy equitably promotes the rights of both at the expense of neither.

First, severance of the joint tenancy as of the date of the recording of the execution, but only by relation back upon completion of the levy, serves the purpose of protecting a debtor from experiencing irreparable harm to his or her property interest where the creditor begins the levy but does not, or cannot, ultimately collect through the levied real estate. A levy that has begun may be defeated or waived prior to completion so as to be void against the debtor's interest in the property. See G.L. c. 236, §50. A creditor may also choose to suspend its levy on execution. See G.L. c. 236, §31. A levy may also simply expire if not pursued in a timely manner. See G.L. c. 236, §49A. Additionally, a debtor may, of course, simply pay the amount due under the execution prior to the levy's completion, thereby satisfying the judgment and the execution. Were the joint tenancy to sever immediately upon recording, a debtor's interest in the property may be irrevocably harmed even if a creditor's levy is satisfied by payment, voided, or otherwise invalidated: the debtor's interest would be reduced to a tenancy in common, and he or she may be unable to subsequently re-establish the joint tenancy and enjoy its attendant benefits, despite the lack of any successfully pursued levy. The inequity of this result is most pointedly apparent where an execution is recorded, but the debtor immediately pays the amount due; despite having fully satisfied his or her obligations, the debtor's interest in the property will nonetheless have been harmed. If the joint tenancy instead severs only upon completion of the levy, a debtor's interest is preserved until the creditor seasonably completes the requisite statutory process.

The defendants argue that the premature severance they favor provides protection to the creditor, because if the joint tenancy remains in effect and the joint tenant dies before the levy is complete, the creditor would be unable to collect. However, this is incorrect. Generally, when a joint tenant dies before a creditor acts to enforce a lien on his interest, the lien is extinguished. See Weaver v. City of New Bedford, 335 Mass. 644 , 647 (1957); Henderson v. Town of Yarmouth, 335 Mass. 647 , 647 (1957). However, a levy will not be lost by the death of a joint tenant if it is ultimately completed. If the levy is fully completed, the subsequent transfer of title relates back to the time at which the land was first taken. See Taylor v. Robinson, supra, 84 Mass. at 565. This serves to protect creditors by preventing a debtor's interim loss of all interest from defeating an incomplete levy. A creditor therefore may complete the levy even if the debtor conveys his entire interest; he likewise may do so where the debtor dies. See Capen v. Doty, 95 Mass. 262 , 264 (1866) ("from the moment of so beginning the levy, if the same is duly and seasonably followed up and completed, ceases to be the estate of the debtor, or to be affected by his death or insolvency…if he dies after the levy has once begun, the service of the execution may be completed as if both parties were still living."). For the purposes of the levy, a transfer of the debtor's interest through the right of survivorship would differ little from any other living or testate conveyance from which it is well-established that the creditor is protected. A creditor may therefore complete a levy where the debtor dies and passes his or her interest to a joint tenant. [Note 7] Accordingly, the fact that the joint tenancy continues after recording of the execution would not impact the creditor's ability to complete the execution in the case of the debtor's death. In terms of creditor protection, early severance thus accomplishes no discernable goal.

Immediate severance of the a joint tenancy thus serves no rational purpose with regard to the rights of debtors and creditors, and it is the relationship between and effect upon these parties that G.L. c. 236 is intended to regulate. The only conceivable purpose behind the early termination of a joint tenancy as sought by the defendants is to provide a potential benefit to heirs, like those here, who would acquire an interest through an involuntary and fortuitous severance neither induced nor intended by the joint tenant. Nowhere in G.L. c. 236 is there even the faintest indication that, in construing its provisions, the rights of such heirs are to be of any concern at all, let alone paramount to the rights of the parties explicitly governed by the statute.


The first iteration of the present G.L. c. 236 dates back as far as 1696, when the Commonwealth enacted a statute governing the taking of real estate by means of an execution. See St. 1696, c. 10, §§1-3. A provision governing the particular issue in this case, the impact of an execution on a joint tenancy, was first added in 1783. See St. 1783, c. 57, §2. Though the statute has been amended since that early time, the operative language in what is now G.L. c. 236, §12 has remained essentially the same from 1860 to the present. See G.S. c. 103, §9 (1860). Although the phrasing and construction of the statute are arcane and may seem resistant to easy interpretation, and this inherent difficulty of language does indeed provide the defendants with an argument that is superficially colorable, ultimately their argument is not supported by the considerable case law interpreting the statutory scheme, or by common sense. An execution recorded against the interest of one joint tenant does not immediately convert the joint tenancy to a tenancy in common; the levy must be seasonably completed for severance to occur, and only then does that severance relate back to the date of recording of the writ of execution.

For the reasons stated above, the plaintiff's motion for summary judgment is ALLOWED. Judgment will enter accordingly.


[Note 1] Though the parties agreed in the statement of undisputed facts that the conveyance to Ms. Perry occurred at some undisclosed date in June, the deed provided in Exhibit 3 indicates that the conveyance occurred on May 11. This fact is not material to the court's decision.

[Note 2] Defendants' opposition not only seeks denial of the plaintiff's motion, but additionally requests that judgment be awarded in their favor.

[Note 3] "It is clear from this provision, that the land is deemed legally taken, so as to fix the time at which the levy shall be considered as made, before notice to the debtor to appoint an appraiser, and of course before the appraisers can be sworn… when an execution has been delivered to an officer, with directions to levy the same on the real estate of the debtor, and the officer accepts the execution with such directions, and consents and undertakes to execute it; any act, done by him, in pursuance of that purpose, is a beginning to execute it, and constitutes a seizure…".

[Note 4] "We now consider whether the levy of execution destroyed the joint tenants' unity of interest. At the time of the levy of the execution, defendant had a mere lien upon the property, which only had the potential of ripening into title following a judicial sale. As a result, the levy of execution only gave rise to an expectation of title in defendant, giving defendant no greater interest than that already possessed. We fail to ascertain how this mere expectation alters the interest of the joint tenants and therefore conclude that the levy does not destroy the unity of interest." (internal citations omitted)

[Note 5] "[I]t is clear that if the attaching of a judgment lien upon the interest of a joint tenant does not sever the joint tenancy, the making of a levy upon the interest of the joint tenant debtor would not be such acts as would sever the joint estate, because of the fact that the levy gives no greater interest than that which the judgment creditor already possessed."

[Note 6] "During the continuance of a joint tenancy, each joint tenant has a liability to have his fractional interest taken for the satisfaction of his debts. Any such taking, when completed, works a severance of the joint tenancy. Thus a judgment creditor must not only levy on the land, but sell it, and have any redemption period expire, before the severance is completed."

[Note 7] It is worth noting that this is not the case in some other states. See, e.g., Zeigler v. Bonnell, 52 Cal. App. 2d 217, 220 (1942) (holding that relation back doctrine only protects the creditor "when the rights of innocent third parties have not intervened", and the non-debtor tenant's receipt of the debtor's interest through survivorship is an innocent intervention). Nonetheless, Capen v. Doty is clear that a creditor's interest is protected even in the event of the debtor's death. See Capen v. Doty, supra, 95 Mass at 264.