Allen v. Allen

• Decision Date: 16 September 2014
• Docket Number: No. 13–P–605.,13–P–605.
• Citation: 16 N.E.3d 1078,86 Mass.App.Ct. 295
• Court: Appeals Court of Massachusetts
• Parties: Deborah A. ALLEN v. Harold J. ALLEN, Jr.

86 Mass.App.Ct. 295
16 N.E.3d 1078

Deborah A. ALLEN¹
v.
Harold J. ALLEN, Jr.

No. 13–P–605.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 12, 2014.
Decided Sept. 16, 2014.

16 N.E.3d 1081

Helen G. Litsas, Boston, for the defendant.

Amy M. McCallen, Boston, for the plaintiff.

Present: TRAINOR, KATZMANN, & HANLON, JJ.

Opinion

KATZMANN, J.

This case concerns competing claims between adult siblings for the ownership of the house formerly owned by their now-deceased parents. Harold Allen, Jr., (Harold) traces his ownership to a July, 2001, deed (July deed) from the siblings' mother, Ethel Allen (Ethel). Harold's sister Deborah Allen (Deborah) claims ownership by virtue of a November, 2001, deed (November deed) from Ethel to the Allen Realty

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Trust (Trust), of which Deborah was a cotrustee along with Ethel.

Deborah brought an action alleging that the July deed was forged and claiming that the property was rightfully hers.² Following a jury-waived trial, a judge of the Land Court determined that, because the acknowledgment of the July deed was defective, its recording did not give constructive notice to Deborah of the conveyance and the deed was not enforceable against her. This is an issue of first impression, not yet addressed by our appellate courts.

On appeal, Harold argues (1) pursuant to exceptions provided in the recording statute, his deed was not required to be recorded, or, alternatively, the recording statute's safe harbor provision protects his claim to the property; (2) the judge's decision exceeded the scope of the pleadings; (3) because of clearly erroneous findings, there was insufficient evidence to support the judgment; and (4) the judge erred in denying Harold's motion to amend his counterclaim. We affirm.

Background. We summarize the relevant facts as found by the judge in his memorandum of decision and postjudgment order, supplemented as necessary with undisputed facts from the record. We reserve certain details for discussion with the specific issues raised.

Deborah and Harold are two of the six children of Ethel and Harold Allen, Sr. (Harold, Sr.). Harold, Sr., and Ethel owned a house at 257 Marrett Road, in Lexington, and lived in that home for many years. Over the course of their marriage, Harold, Sr., and Ethel created numerous estate plans, which consistently excluded their two sons, Harold and Lawrence, because Harold,

Sr., and Ethel had provided for them through lifetime gifts.³ After Harold, Sr., died, Ethel continued this pattern.⁴

The events at the center of this dispute occurred during 2001. In late April, 2001, Ethel began the process of moving from her Lexington home to live with one of her daughters, Nancy Oldro, in Nashua, New Hampshire. After evaluating conflicting testimony, the judge concluded that Ethel had fully moved in by mid-July, 2001.

Harold traces his claim to a deed Ethel executed on July 23, 2001, conveying the house to Harold and to Ethel as joint tenants with a right of survivorship. This deed is the subject of the present dispute. Attorney Paul Maloy prepared the deed and signed a certificate of acknowledgment, dated July 23, 2001, which reads: “Then personally appeared the above named Ethel M. Allen and acknowledged the foregoing instrument to be her free act and deed, before me, [/s] Paul F. Maloy—Notary Public.” Maloy recorded the deed on August 10, 2001. We reserve further details regarding the execution and acknowledgment of the deed for the discussion below.

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On November 30, 2001, Ethel established the Allen Realty Trust and executed a deed conveying the Lexington property to herself and to Deborah as cotrustees of the Trust, reserving a life estate for herself. She specified that the property would be sold upon her death and the proceeds divided among several of her descendants, including Deborah.⁵ This deed was recorded on February 8, 2002.

Only after Ethel died on December 20, 2009, did Harold reveal the July 23, 2001, deed. Neither Deborah nor her sister Nancy nor the attorney who prepared the November deed had discovered the July conveyance.⁶ In January, 2010, Deborah commenced the

present action, disputing Harold's claim to the property. After a trial that included forensic testimony regarding the July deed, the judge found that Ethel's signature on the July deed was authentic. But he determined that, contrary to the certificate of acknowledgment on the deed, Ethel never appeared before Attorney Maloy to acknowledge the deed. The judge found that, instead, she had signed the deed in front of Harold, who then brought it to Maloy for his signature. Harold appeals from the judgment and from the denial of his postjudgment motions.⁷

Standard of review. “In reviewing a matter wherein the trial judge was the finder of fact, ‘[t]he findings of fact ... are accepted unless they are clearly erroneous[ ] [and] [w]e review the judge's legal conclusions de novo.’ ” Crown v. Kobrick Offshore Fund, Ltd., 85 Mass.App.Ct. 214, 224, 8 N.E.3d 281 (2014), quoting from T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569, 924 N.E.2d 696 (2010) (citations omitted). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Springgate v. School Comm. of Mattapoisett, 11 Mass.App.Ct. 304, 309–310, 415 N.E.2d 888 (1981), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Furthermore, “[i]n applying the ‘clearly erroneous' standard, rule 52(a) requires that ‘due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ ” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509, 677 N.E.2d 159 (1997). Thus, “[s]o long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it.” Id. at 510, 677 N.E.2d 159. It is the appellant's burden to show that a finding is clearly erroneous. Hanover Ins. Co. v. Treasurer & Receiver Gen., 74 Mass.App.Ct. 725, 730, 910 N.E.2d 921 (2009).

Discussion. 1. The recording statute. a. Latent defect in certificate of acknowledgment.⁸ “[O]rdinarily an acknowledgment is not an essential part of a

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deed; but if it is desired to record the

deed in order to charge the world with notice of the conveyance, then it is necessary that the deed be acknowledged and that a certificate reciting this fact be attached to the deed. Doubtless, that is the principal function of a certificate of acknowledgment.” McOuatt v. McOuatt, 320 Mass. 410, 413–414, 69 N.E.2d 806 (1946) (McOuatt ). See G.L. c. 183, § 4, as appearing in St.1973, c. 205 (“A conveyance ... shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it ... is recorded in the registry of deeds for the county or district in which the land to which it relates lies”); Gordon v. Gordon, 8 Mass.App.Ct. 860, 862–863, 398 N.E.2d 497 (1979) ( “[T]itle to real estate may be transferred by a deed which has not been acknowledged, and such deed is good against the grantor and his heirs and those having actual notice”).

The certificate of acknowledgment “furnishes formal proof of the authenticity of the execution of the instrument when presented for recording.” Id. at 862, 398 N.E.2d 497, citing McOuatt, 320 Mass. at 413–414, 69 N.E.2d 806. “The certificate of acknowledgment is of evidentiary character, and the taking of the acknowledgment has always been regarded in this Commonwealth as a ministerial and not as a judicial act and the recitals contained in the certificate may be contradicted.” McOuatt, supra at 413, 69 N.E.2d 806.

In McOuatt, the Supreme Judicial Court held that where an acknowledgment had not actually occurred, a facially correct certificate of acknowledgment failed to satisfy the statutory requirement that in order for a deed conveying property between spouses to be valid, it must be acknowledged and recorded.⁹ McOuatt, supra at 415–416, 69 N.E.2d 806 (applying the then-existing version of G.L. c. 209, § 3 ). Here, as in McOuatt, the deed included a facially correct certificate of acknowledgment, with the required signature and recitals, and was recorded. Also, as in McOuatt, the judge here concluded that the acknowledgment never actually occurred.

Notwithstanding the facially correct certificate of acknowledgment, because the July deed was never actually acknowledged, it was not entitled to be recorded. See G.L. c. 183, § 29 (“No deed shall be recorded unless a certificate of its acknowledgment or of the proof of its due execution, made as hereinafter provided, is

endorsed upon or annexed to it”);¹⁰ Dole v. Thurlow, 53 Mass. 157, 12 Metcalf. 157, 163 (1846) (“[A]s a prerequisite to recording, acknowledgment, or proof by one or more subscribing witnesses, was necessary. Actual recording, without one of these prerequisites, would not give effect...