RUBY W. WEST vs. FIRST AGRICULTURAL BANK.

KAPLAN, J. For convenience, we discuss in one opinion two cases in which the respective plaintiff wives sought to present constitutional challenges to the Massachusetts form of tenancy by the entirety as it existed before its reformulation by legislation that became effective in 1980 (St. 1979, c. 727, amending G. L. c. 209, Section 1, effective February 11, 1980). [Note 1] Invoked by the plaintiff Ruby West was the equal protection clause of the Fourteenth Amendment, and by both plaintiffs, art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Articles of Amendment, effective November 2, 1976, which states in part, "Equality under the law shall not be denied or abridged because of sex ..." (hereafter E.R.A., the Equal Rights Amendment).

We shall conclude by giving effect to the older form of the tenancy as to the pre-1980 transactions at bar in both cases. That form encounters some constitutional problems which we recognize and analyze. But the retroactive alteration of incidents of the tenancy which are sought in these cases, and which would apply in many like cases, is not required and would be undesirable. The Legislature has provided for the present and future.

1. Facts and proceedings. West case. The defendant First Agricultural Bank on August 7, 1979, recovered a deficiency

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judgment of $36,179.52 upon a mortgage foreclosure against Ernest L. West, the plaintiff's husband. On September 15, 1979, the bank caused execution to be levied under the judgment on three parcels of land in which the husband had ownership interests, and notice was given of a sheriff's sale to occur on December 21, 1979. One of these properties was an improved parcel on Lafayette Street, Pittsfield, which had been held by the husband and the present plaintiff Ruby West as tenants by the entirety since 1954, and evidently was their residence. [Note 2]

On December 7, 1979, the plaintiff commenced her action in Superior Court to enjoin the sale of the husband's interest in the Lafayette Street property. [Note 3] That interest, under the classic form of tenancy by the entirety prevailing in Massachusetts, would consist of his exclusive right of control, possession, and income during the joint lives, together with an "indestructible" right to a remainder if he survived his wife; and the interest could be reached by the husband's individual creditors. The wife's interest consisted only of a corresponding right of survivorship, but this was not subject to levy by her creditors (or her husband's). [Note 4] The wife in the

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West case was asserting that the Massachusetts tenancy as described was unconstitutionally discriminatory as based on sex; therefore she must be accorded some (not clearly expressed) rights of control, possession, and income in association (not clearly defined) with those of the husband, only joint obligations of both spouses being leviable by creditors, and then (presumably) against the entire estate. The court, rejecting the wife's contention, allowed the defendant bank's motion to dismiss the complaint for failure to state a claim, and we allowed an application for direct appellate review. [Note 5]

McDougall case. These were the facts, as found by a master, with some amplification by the judge. The plaintiff Joan McDougall and her husband Duncan became tenants by the entirety of the property 615-631 Dutton Street, Lowell, on March 4, 1974. Before that date the premises were occupied by several businesses owned or controlled by the husband, including a corporation, S & S of New England, Inc. (hereafter New England). Just before the date of purchase, according to the master, New England was a tenant at will of the entire premises, paying rent to the prior owner, and allowing the other McDougall businesses to share occupancy with it. After March 4, 1974, the date of purchase, there was no agreement for payment of rent and no rent was paid; the husband simply withdrew from the businesses monthly the $1,500 needed to meet the mortgage requirements.

In May, 1976, the defendant corporation S & S of N.E., Inc. (hereafter S & S), acquired the assets and assumed the obligations of New England. The husband owned 700 of S & S's 1,000 shares; the plaintiff McDougall, one John Finnegan,

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and Doris Finnegan (his wife), each owned 100 shares. S & S remained an occupant of the premises. Still there was no agreement as to payment of rent by any occupant, and no rent was paid.

On May 12, 1977, the plaintiff and her husband, advised by the husband's attorney, executed a deed transferring the property to the plaintiff as an individual, and the plaintiff, in turn, executed a deed transferring the property back to the plaintiff and her husband as tenants by the entirety. [Note 6] The former deed was recorded on May 17, 1977. The latter deed was not recorded. It was left in the custody of the attorney. The husband later obtained the deed, and sometime in spring, 1978, tore it into pieces, and handed the pieces to the plaintiff. She produced the pieces (taped together to form the entire deed) at the master's hearing.

On September 9, 1977, the husband sold his 700 shares in S & S to John Finnegan for $20,000. The purchase agreement stated that S & S "occupied" as a tenant at will. At that time Finnegan asked the husband about future rent, but the husband refused to discuss the question and never thereafter raised the question. Finnegan had no discussion at the time with the plaintiff about rent.

On the September, 1977, date of the sale of stock to Finnegan, the plaintiff and her husband had been separated for over a month, and the husband sued for divorce on November 9, 1977. In early November the plaintiff approached Finnegan about rent. He gave her two checks totalling $300 but then declined to pay any more. On November 5, 1977, the plaintiff served on S & S a fourteen-day notice under G. L. c. 186, Section 12, to vacate for nonpayment of rent.

On February 14, 1978, the plaintiff commenced the present action against S & S for rent from June 1, 1977. [Note 7] On

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February 17, 1978, the husband brought his separate action against S & S for rent for the same period. [Note 8] On March 1, 1978, the Union National Bank took possession of the Dutton Street property upon foreclosure of a mortgage held by it which had been given by Joan and Duncan McDougall when they acquired the property in 1974.

On March 6, 1978, the two actions were referred to a master to report his findings of fact and conclusions of law without returning a transcript of the evidence. But on April 21, 1978, the husband's complaint against S & S was dismissed for his failure to appear for a deposition after notice by S & S, [Note 9] so the master was confined to the wife's action for rent, the subject of the present appeal.

The master reported in August, 1978, his findings of fact and conclusions of law, and a general finding for the defendant. As matter of law, the master held that the second deed of May 12, 1977, constituted a legal reconveyance of the property to husband and wife as tenants by the entirety. It followed, according to the master, that only the husband, in his right of control, possession, and income during the joint lives, could claim rent from the property. See Cunningham v. Ganley, 267 Mass. 375, 377 (1929); Wingrove v. Leney, 312 Mass. 683, 684 (1942). Therefore he concluded for the defendant S & S in the action.

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The judge of the Superior Court accepted the master's findings of fact but expressed no opinion as to his conclusion about the validity of the reconveyance. If that conveyance was ineffective, then the plaintiff was the individual owner and in a position to demand all the rent. But, said the judge, if the conveyance recreated a tenancy by the entirety, that estate was unconstitutional under the E.R.A. in so far as it vested in the husband the sole right to control, possession, and income during the joint lives. Therefore, the judge reasoned, the wife must be accorded a corresponding right. This might have suggested that she should recover one-half the rent. Yet the judge, holding that a rent obligation arose from the plaintiff's demand, which in the judge's view changed S & S's status as a tenant at will without rent into the status of a tenant at sufferance, allowed the plaintiff a recovery against S & S of $6,000, being the full reasonable rental (as found by the master) of $1,500 per month for the four months, November, 1977, through February, 1978 (to the date of foreclosure of March 1, 1978). From a judgment to this effect, S & S appealed, and we brought the case here on our own motion. [Note 10]

2. Constitutional questions as tendered by the parties. In neither case has it been argued that the 1980 legislation is operative, and we accept for purposes of these cases that it is not operative. Then in the West case, the wife's claim that creditors could levy only for defaulted joint obligations of the spouses seeks and is predicated upon changes in fixed rules of property on constitutional grounds.

As to the McDougall case, a constitutional issue would not arise if the reconveyance could be considered ineffective, leaving the whole fee in the plaintiff wife. We are not bound to accept the master's conclusion of law to the contrary (see Mass. R. Civ. P. 53 [e], as amended, 367 Mass. 917

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[1975]; Jones v. Wayland, 374 Mass. 249, 255 [1978]; Wormstead v. Town Manager of Saugus, 366 Mass. 659, 660 [1975]), and the legal question is open to dispute, but we think the master was probably correct. Under G. L. c. 183, Section 4, as appearing in St. 1973, c. 205, an unrecorded deed conveying "an estate in fee simple ... shall not be valid as against any person, except the grantor ... and persons having actual notice of it ..." The plaintiff was the grantor. She has argued that the object of the statute was only to protect subsequent purchasers against prior unrecorded conveyances. That might be the statute's primary purpose, but it may rule also against a grantor's taking unfair advantage of a recording system to deny a deed she executed but did not record. [Note 11] The plaintiff has also argued that the tearing up of the second deed in effect reinstated the first. But that second deed had previously been delivered through its being placed and remaining in the possession of the attorney, and its destruction, even by the husband as one of the grantees, would not produce the result of reviving the first, see 3 American Law of Property Section 12.85, at 367-368 (A.J. Casner ed. 1952), [Note 12] whatever might be the force of an argument of estoppel as between a grantor and a grantee who later tore up the dispositive instrument. See id., Section 12.85, at 368; 4 H.T. Tiffany, Real Property Section 1067, at 476 (3d ed. 1975). [Note 13]

There is the further question whether the plaintiff's notice was a proper procedure for initiating a duty on S & S's part to pay rent, even if it be assumed that she had a substantive right to the rent. Yoffe v. Krasnow Wool Stock Co., 322 Mass. 211, 212-214 (1948), held that a fourteen-day

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notice to a tenant at will to quit for nonpayment of rent did not terminate the tenancy where the tenant had attempted to pay the agreed upon rent; a separate lengthier notice under G. L. c. 186, Section 12, would be required. We doubt the relevance of Yoffe (and possibly even of any part of G. L. c. 186, Section 12) to a case where no rent was being paid (though none had previously been demanded), and think the notice adequate to terminate immediately a gratuitous tenancy. The upshot, as the judge concluded, was that after notice S & S became a tenant at sufferance (see G. L. c. 186, Section 3) liable to pay a reasonable rent, assuming the plaintiff had a capacity to act as landlord, and that turned on the constitutional issue.

3. General constitutional considerations. The plaintiffs contend that, before its 1980 statutory modification, our local form of tenancy by the entirety, preserving precisely the ancient estate, [Note 14] was sex-biased and presented features which were offensive to the standard of the equal protection clause and (a fortiori) to that of the E.R.A. [Note 15] On a surface

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view, the tenancy appeared to be a reflection of discredited stereotypes. The male was assumed competent, and thus was to have full control of the property and returns from it during his lifetime and could alien or lose all his interest in it including his survivorship right. The female was thought incompetent, and so was given no rights in the property during her husband's lifetime, and must abide his ideas of proper management, but was protected in her survivorship right against her creditors (and even against her husband and his creditors).

The theoretical support for the tenancy was the concept of the legal unity of the husband and wife, and if it turned out that in that unity the husband was dominant, this was perhaps because the stereotypes mentioned had determined the shape of the concept. Licker v. Gluskin, 265 Mass. 403 (1929), decided a half century ago, was a monument to the conventional attitudes. [Note 16] But in recent years we have freely recognized the weakness of the "common law unity concept" as a guide to satisfactory current decision (see DeCenzo v. Assessors of Framingham, 372 Mass. 523, 526 [1977]; Green v. Commissioner of Corps. & Taxation, 364 Mass. 389, 394-395 [1973]; Brown v. Boston, 353 Mass. 740, 744 [1968]; Osborne v. Lancaster, 345 Mass. 164, 165 [1962]). And we have to recognize that inequalities in the incidents of the tenancy must put in some question its constitutional validity. [Note 17]

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This question of the constitutionality of the Massachusetts tenancy has not previously come before this court, but it has reached Federal courts in this locality. We digest in the margin the cases of Klein v. Mayo, 367 F. Supp. 583 (D. Mass. 1973) (three-judge court), aff'd without op., 416 U.S. 953 (1974); D'Ercole v. D'Ercole, 407 F. Supp. 1377 (D.Mass. 1976); Friedman v. Harold, 638 F.2d 262 (1st Cir. 1981). [Note 18] The decisions do not overlook the aridity of the

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"unity" concept and its probable original basis in the contemporary ideas about the capacities of men and women. However it was suggested, particularly in the D'Ercole case, supra, that the parties seeking to attack the various aspects of the tenancy could not show final State responsibility for the deprivations claimed. [Note 19] This was because the parties to the tenancy had voluntarily selected that form of land holding; the State had not compelled them. There was, indeed, no form of estate in land, readily available for selection, that replicated the tenancy by the entirety but reversed the roles therein of husband and wife, see Klein, 367 F. Supp. at 585; D'Ercole, 407 F. Supp. at 1382-1383, [Note 20] although we suppose draftsmanship might achieve the substantive

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result, or something approximating it, by the use of a trust with "spendthrift" provisions. [Note 21] Still the joint and common tenancies, with indubitably equal rights, were available; and in any event, in the absence of proved coercion, misrepresentation, or ignorance guilefully manipulated, the parties entering on a tenancy by the entirety were making a choice of their own (and were in a position to revise the initial choice by mutual agreement thereafter). See Klein at 586; D'Ercole at 1382.

The reality of the choice is fortified by the fact that -- regardless of historical origins and claims about stereotypes -- tenancy by the entirety was suitable to the requirements of many married couples, and could have been and, no doubt, often was recommended to them on a quite reasonable basis. It made sense in common situations where there was no particular concern about division of management rights, and the couple wanted assurance that the surviving spouse would take the property free and clear of any debts (including tort judgments) of the deceased spouse. The wife had an advantage in that her survivorship could not be reached even by her own creditors. For some years the tenancy had State inheritance tax advantages, [Note 22] and on passage of the property upon death of either spouse probate might be avoided if the estate was otherwise small. See M. Park, Conveyancing Section 129, at 136 (1968).

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On the issue of voluntary choice, comparison is invited with the situation in Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979), prob. juris. noted, 446 U.S. 917 (1980). The case can be put schematically thus. By Louisiana statute law, the husband was established as "head and master" of property -- we deal here with real property -- held in community with his wife, and he was accorded the exclusive right to manage and alien it. But if the wife desired equality with her husband in these respects she could enter originally into an antenuptial contract with him in that sense, or, later, at any stage of the marriage, secure such equality for the future by recording an appropriate instrument as set out in the statute. 609 F.2d at 732. This arrangement, according to the court, involved unconstitutional State action. Standing alone, the provision presumptively giving the husband control could not stand: this would be sex based discrimination by the State. The official discrimination was in some degree mitigated, but it was not eliminated, by according the wife an opportunity to overcome the presumptive arrangement by asserting herself and taking positive action. The State was violating equal protection even though the "burden" (including expense) laid on the wife to claim equality was not "insurmountable." Id. at 733-734. [Note 23] As a practical matter, in many cases the statutory expedient open to the wife would be a dead letter because of simple lack of knowledge that it existed; there would be no real choice. Id. at 733 n.14. See, as an instance of wife's ignorance, Corpus Christi Parish Credit Union v. Martin, 358 So. 2d 295, 297-298 (La.), cert. denied, 439 U.S. 897 (1978).

With respect to choice, our case of the Massachusetts tenancy was more defensible constitutionally than the Louisiana statute because the Commonwealth did not

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create an unequal situation from which a wife had to extricate herself; such inequality as inhered in our case was brought about initially, if at all, by choice which, as we have said, need not have been artificial. In fairness we should add that the existence of a category of estate associated with the husband-wife relation might lead to some unthinking or mechanical use of that form in conveyances to married couples (see Fuss v. Fuss [No. 2], 373 Mass. 445, 447 [1977]; Glendon, Tenancy by the Entirety in Massachusetts, 59 Mass. L.Q. 53, 59 [1974]), and until 1973 there was an evidential presumption that a conveyance to husband and wife was to them as tenants by the entirety (but the presumption could be overcome by proper language in the conveyance). [Note 24]

4. Concerning possible relief. Let us now assume for argument's sake a vulnerability in the Massachusetts tenancy and consider what if any relief might be appropriately provided in the particular cases or the generality of cases. Relief applicable to past tenancies would not follow automatically from a finding of unconstitutionality, for, as the Court said in Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940) (aptly referred to by the Kirchberg court): "The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, -- with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute [in our present case, a mixture of statute and long established decisional law] and of its previous application, demand examination."

To take a preliminary look at the cases at bar: With regard to McDougall, the element of voluntary choice on

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the given facts might be thought so real as to shut off constitutional demands, whatever position was taken on the general class of cases. Here the entire fee of business property was in Mrs. McDougall by force of the transfer to her individually and she then by her deed elected the tenancy in haec verba (see n.24), by which she may be taken to have relinquished willingly to her husband the current control of the property, including the matter of rental. [Note 25] West's case has the appearance of a tenancy of the more usual sort, not out of keeping with a standard situation. The tenancy was entered into in 1954 and generated about it a web of relationships. The wife is not prepared to relinquish her survivorship or the immunity of the tenancy from her debts, but balks at another incident, the burdening of the current tenancy by the husband's obligations. She argues for an equality retrospectively imposed, but equalization could very rationally take a form that would not relieve the husband's interest of levy by his creditors, but would rather subject the wife's interest to her own creditors. See n.27 below. See also Newman v. Chase, 70 N.J. 254, 260 (1976); King v. Greene, 30 N.J. 395, 412-413 (1959).

But the question of possible relief should be considered more broadly. As noted, the parties make no claim that the 1980 legislation applies (retroactively) to their cases. That legislation covers conveyances from and after February 11, 1980. [Note 26] It amended G. L. c. 209, Section 1, to provide: "A husband

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and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety." And further: "The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse" (with a proviso regarding liability of the spouses for necessaries). From these provisions the whole shape of the new tenancy will be extrapolated.

Any "equalization" of the rights of spouses by decision of this court as to conveyances antedating February 11, 1980, would pose formidable problems as to the starting date. It is not clear that selection of the date of the E.R.A. would be anything more than arbitrary in view of equal protection claims. In delineating the changed rights, the court would be faced with choosing among multiple patterns of equalization that have been attempted around the country in modifying tenancies by the entirety (it is a notable fact that the statutory changes have generally been wholly prospective, see Annot., Retrospective operation of legislation affecting estates by the entireties, 27 A.L.R.2d 868, 870-872 [1953]; Annot., Married Women's Act as abolishing estates by entireties, 141 A.L.R. 179, 181 & n.12 [1942]). The very variety of the patterns, as indicated in the margin, [Note 27] suggests

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that the process of selection is more suitably done by the Legislature than by a court. Something might of course be said here for trying, by hindsight, to align a judicial choice with that actually made by the Legislature in the 1980 statute. See Friedman v. Harold, supra, 638 F.2d at 269. However we have doubts whether it would be appropriate thus to install a "principal residence" exemption, and there is serious trouble with the fact that the Legislature itself has not indicated -- surely not expressly -- that it intended retroactive reform (see n.26). The further, grave objection to going backward to tenancies created by past conveyances is that it would upset expectations and defeat reliances based on a long established form of conveyance used in thousands of transactions, not all of which were of the family type, as the record in McDougall shows. There would be other aspects of unfairness. The retroactive "equalization" of rights could amount to forcing a party to make a never intended and quite possibly unmerited gift to another. See Klein v. Mayo, supra, 367 F. Supp. at 585. Retroactive alteration of the law is strongly contraindicated when the subject is settled rules of property. See Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201, 242-243 (1965); Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility,

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28 Hastings L.J. 533, 543 (1977); R.E. Keeton, Venturing to Do Justice 34, 40-41 (1969).

Thus we conclude that a decision by us on constitutional grounds would be prospective and would affect only tenancies created after the issuance of our decision; and relief would be denied in both our cases. Cf. Rosenberg v. Lipnick, 377 Mass. 666, 671 (1979). [Note 28] In fact the 1980 legislation has come in ahead of a decision on those lines, and has brought in changes from February 11, 1980, but not such as to cover the instant cases.

The judgment in the West case will be affirmed, and any outstanding stay vacated. The McDougall appeal will be dismissed (see n.7). [Note 29]

So ordered.