HARRIETT B. HIGGINS & another vs. ADELARD SAVOIE & another. CLARA AGNES WASSERMAN & another vs. SAME.

CROSBY, J. These are bills in equity brought in the Land Court to remove clouds upon the title to two parcels of real estate situate in Newton in this Commonwealth. The real estate is shown respectively as lot G-l and lot G-3 on a plan recorded with Middlesex South District Deeds, book 5420, page 108. The bills are substantially similar. In the first case the plaintiff Higgins alleges that she is the owner of the equity of redemption in lot G-l; that she obtained title thereto by foreclosure deed from the plaintiff The Attleborough Savings Bank dated December 17, 1931, and duly recorded, under foreclosure of a mortgage given to said bank by Frederick M. Joyce and Margaret M. Joyce, his wife, in her own right on March 3, 1931. The plaintiff The Attleborough Savings Bank alleges that it is the holder of a mortgage on lot G-l given by the plaintiff Higgins dated December 17, 1931, and duly recorded. In the second case the plaintiff Wasserman alleges that she is the owner of the equity of redemption in lot G-3; that she obtained title thereto from Margaret M. Joyce by deed dated January 13, 1931. The plaintiff The North Brookfield Savings Bank alleges that it is the holder of a mortgage on lot G-3 given by Margaret M. Joyce in her own right,

Page 465

and Frederick M. Joyce, her husband, dated January 5, 1931, and duly recorded.

It is further alleged, in substance, and found by the trial judge, that the defendant Adelard Savoie began an action against said Margaret M. Joyce and Frederick M. Joyce as principal defendants, and Joseph A. Butler as trustee, by writ returnable on the first Monday of December, 1930, in the Superior Court for the county of Suffolk; that on October 23,1930, by virtue of said writ the sheriff attached all the right, title and interest that the defendants Joyce, or either of them, had in and to any and all real estate in the county of Middlesex, and said attachment was filed in the registry of deeds for the county of Middlesex. On that date Margaret M. Joyce was the owner of lots G-l and G-3. It further appears that on or about January 8, 1931, counsel for the plaintiff in the second case was given by the clerk of the Superior Court for the county of Suffolk a certificate with respect to said action of Adelard Savoie against Margaret M. Joyce and Frederick M. Joyce. The certificate was in the following words: "I hereby certify that I have carefully examined the indexes of suits entered in said Court from the first Monday of December, A. D. 1930 unto the first Monday of January, A. D. 1931, both dates inclusive, and do not find that any such action has been entered herein during that period. Witness my hand and the seal of said Superior Court, at Boston, in said County and Commonwealth, this eighth day of January, A. D. 1931. George A. Scheele, Asst. Clerk. (Court Seal)." The certificate was filed for record in the Middlesex registry of deeds on January 13, 1931. The trial judge found that the plaintiffs in each case took their respective titles relying on the effect of the filing for record of the clerk's certificate to discharge said attachment. The writ in the case of Adelard Savoie against Margaret M. and Frederick M. Joyce in fact was entered late on December 29, 1930.

The plaintiffs in both cases allege that the defendant Herbert C. Blackmer, as deputy sheriff of Middlesex County, filed in the Middlesex South District registry of deeds an instrument purporting to be a levy of an execution

Page 466

for a judgment in the Suffolk Superior Court recovered by Adelard Savoie, February 19, 1934, against Frederick M. Joyce and Margaret M. Joyce, reciting therein that on February 21, 1934, said deputy sheriff made a levy of such execution on the right, title and interest that Margaret M. Joyce had on October 23, 1930, the date of the attachment, in said lot G-l and lot G-3, and that counsel for the defendant Savoie intends to proceed with the levy so filed; that the filing of the levy has created a cloud on their respective titles, and that further proceedings thereunder will so operate, and they pray that the cloud on their respective titles by reason of said levy and proceedings thereon be removed.

The defendants in each case filed a demurrer, a plea, and an answer. All were of similar tenor, and the cases were tried upon these pleadings. There does not seem to be any dispute as to the facts. The judge sustained the demurrers in each case, and there were entered interlocutory decrees accordingly, and final decrees dismissing the bills. From these decrees the plaintiffs respectively appealed.

It appeared that the statement in the certificate of the clerk was erroneous, as Savoie had on October 23, 1930, effectively attached all the right, title and interest which Margaret M. Joyce had in or to the lots G-l and G-3. (G. L. [Ter. Ed.] c. 223, § 66.) The writ was entered late on December 29, 1930. The plaintiffs rely upon G. L. (Ter. Ed.) c. 223, § 132, which provides in part as follows: "An attachment of real estate shall be dissolved by . . . a certificate from the clerk of the court in which the action was pending that the attachment has been dissolved or that the action has finally been determined." The question is whether the certificate here considered is a "certificate . . . that the attachment has been dissolved or that the action has finally been determined." The certificate simply states that after a careful search the clerk has found no record of the entry of the action. It does not refer to the attachment, and it is not a certificate that the attachment has been dissolved, unless this follows from the fact that the writ has not been entered. An action is in a sense terminated by failure to enter the writ, if it can be said to

Page 467

have been before the court at all. But this alone does not show that it has "finally been determined" within the meaning of G. L. (Ter. Ed.) c. 223, § 132. "Final disposition" and "non-entry of the writ" are treated as distinct in a similar statute. G. L. (Ter. Ed.) c. 184, § 16, provides: "At any time after final judgment or a decree in favor of the defendant, or after the discontinuance, dismissal or other final disposition ... of a proceeding mentioned in the preceding section, or in case of the non-entry of the writ . . . the clerk of the court . . . shall upon demand give a certificate of the fact of such . . . final disposal or non-entry, and such certificate may be recorded in the registry in which the original record mentioned in said section was made." It is plain that a certificate of non-entry under G. L. (Ter. Ed.) c. 223, § 132, is of a different kind from certificates as to other transactions, such as a final disposition by judgment, dissolution by the giving of a bond, or by the deposit of the amount of the ad damnum, which clearly fall within the section. We are of opinion that it was not the intention of the Legislature that the risk of such a mistake as occurred in the present cases should be borne by the prior attaching creditor, who has not been guilty of any fault or negligence. In analogous situations this court has uniformly held in favor of a person who has done all he could do to have a transaction recorded, as against a subsequent creditor or purchaser who has relied on an erroneous record. Tracy v. Jenks, 15 Pick. 465. Ames v. Phelps, 18 Pick. 314. Jordan v. Farnsworth, 15 Gray, 517. Fuller v. Cunningham, 105 Mass. 442. Hayden v. Peirce, 165 Mass. 359. Where an attachment of real estate was properly made and returned, and the clerk of the court failed to enter the name of the grantee in his attachment book, the attachment was held to be valid as against a subsequent purchaser from the grantee. Sykes v. Keating, 118 Mass. 517. In cases like the present the prospective purchaser may protect himself. If the writ is not entered the action may be dismissed on motion of the defendant. G. L. (Ter. Ed.) c. 231, § 13. This dismissal will appear on the records of the court, and

Page 468

if no purchase is made until this is done, the purchaser will be protected. The case of Cardival v. Smith, 109 Mass. 158, is not contrary to what is here decided. The considerations governing the interpretation of the statute in the present cases are plainly different from those applicable to the decision of that case.

G. L. (Ter. Ed.) c. 184, § 16, cited by the plaintiffs, is not applicable to the cases at bar. By that section the clerk is authorized to give only a certificate of the fact of nonentry, which fact in the present cases did not exist. See Siegemund v. Building Commissioner of Boston, 263 Mass. 212, 214.

The plaintiffs do not raise any question because the action in which the attachment was made was entered late. See Lemieux v. Lincoln, 204 Mass. 55.

It follows from what has been said that the demurrers to the bills were rightly sustained, and that the interlocutory decrees, and the final decrees dismissing the bills must be affirmed.

Ordered accordingly.