Christian v. Mooney

• Decision Date: 17 August 1987
• Citation: Christian v. Mooney, 511 N.E.2d 587, 400 Mass. 753 (Mass. 1987)
• Parties: Carol Tuttle CHRISTIAN et al. 1 v. Robert F. MOONEY et al.; 2 Walter Beinecke, Jr., third-party Defendant.
• Court: Supreme Judicial Court of Massachusetts

Page 587

511 N.E.2d 587

400 Mass. 753

Carol Tuttle CHRISTIAN et al.¹ v.Robert F. MOONEY et al.; ²Walter Beinecke Jr., third-party Defendant.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 9, 1987.

Decided Aug. 17, 1987.

Jerry L. Mashaw, New Haven, Conn., Connecticut & Jack R. Pirozzolo, Boston (Richard E. Bennett, with them), for William J. Devine.

Bruce A. Issadore, Norwell, for Agnes Conwell Quinlan & another.

Paul Killeen(Theodore L. Tillotson, Boston, with him), for E. Garrett Bewkes.

Jacob J. Locke(Robert G. Conley, Boston, with him), for Robert F. Mooney.

Kevin G. Murphy, Springfield, for Marion L. Jewell.

Before WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

This case concerns the ownership of particular lots shown on an 1874 plan of land of one Winchester Veazie and located on the south coast of Nantucket in an area described as Share 10 of Smooth Hummocks (Share 10).This case also concerns the asserted liability of Robert F. Mooney, who in 1966 acted as title examiner in connection with a Land Court proceeding which purported to foreclose all rights of redemption in Share 10 following a taking for nonpayment of taxes.

In 1967, a Land Court judge, accepting Mooney's opinion as title examiner that record title to the land remained in Winchester Veazie, entered a decree purporting to cut off all rights of redemption.We now know that, among other things, Mooney overlooked two 1874 deeds by Veazie to one D. Morton Fox conveying the lots involved in this action.Each plaintiff, other than Devine, has asserted an interest in particular numbered lots in the subdivision through descent or devise, or both.³Devine discovered Mooney's errors by reading certain Land Court records.He located the other plaintiffs, acquired a one-half interest in their claims, and arranged for this proceeding to be brought at his expense.

In 1963, for the first time in at least sixty years, the town assessed taxes against Share 10 in the name of "Winchester Vezie [sic ] et al," valuing the land at $10.Understandably, the taxes went unpaid, and in February, 1964, the collector of taxes took Share 10 for nonpayment of taxes.In March, 1964, the town's interest was assigned to John J. Gardner, II, for $15.38.Gardner was clerk of the Nantucket board of assessors.About two years later Gardner retained Roy E. Sanguinetti to foreclose the tax title.Sanguinetti was Nantucket's town moderator and town counsel.The petition for foreclosure and the notice of the foreclosure named "Winchester Vezie [sic ]" as the only interested party.In connection with the tax foreclosure action, the Land Court appointed Mooney as title examiner.Mooney, who was paid a fee of $35 for his services, filed a report, dated June 24, 1966, in which he stated that Veazie was the last known owner of the locus.

The trial judge concluded that Mooney was negligent in his title examination.He missed various deeds by Veazie of portions of Share 10 to various persons, including Fox.The pages of the 1862-1875 grantor index for grantors whose names began with the letter "V" became full sometime in 1874 and at the bottom of the last page initially designated for the letter "V," long before 1966, someone had written "seePage 230."If Mooney had noted and pursued that instruction, as the judge concluded he reasonably should have, he should have found reference to the conveyances on which the plaintiffs base their respective claims.⁴

On April 4, 1967, the Land Court entered a final decree in the tax foreclosure case "forever foreclosing and barring all rights of redemption."In May, for less than $100, Gardner conveyed Share 10 to Sanguinetti, as a trustee, and three weeks later Sanguinetti conveyed Share 10 to the defendant Beinecke for $16,500 in an arm's length transaction.Beinecke, following his practice in connection with other Nantucket land, decided to register title to Share 10, and he retained Mooney to handle the matter.On October 16, 1968, Mooney filed a petition to register and confirm title to Share 10.The appointed title examiner made a report in 1969 which commenced with and relied on the 1967 tax title foreclosure proceeding.He gave a report favorable to registration of title in Beinecke.In May, 1976, the title examiner filed a supplemental report which, for purposes of this case, contained no changes but did note irregularities of Sanguinetti as trustee.

While the registration case was pending, certain Nantucket tax taking procedures came under investigation.In July, 1978, Mooney, who was then town prosecutor, withdrew as counsel for Beinecke in the registration proceeding because in June, 1978, the town had brought an action against Beinecke alleging that the conveyance of Share 10 to Beinecke was voidable because Gardner and Sanguinetti had violated the conflict of interest statute in their dealing with the land.⁵The town's action came to this court on appeal following allowance of Beinecke's motion to dismiss it.Nantucket v. Beinecke, 379 Mass. 345, 398 N.E.2d 458(1979).Following this court's opinion, there was a Land Court trial, and in March, 1981, a determination that the town's action was "time barred."The Land Court judge noted in her decision that "there are questions which now exist in relationship to the title [to Share 10] which will have to be explored ultimately by this Court."

In 1979 Beinecke sold Share 10 to the defendant Bewkes for $150,000, subject to a purchase money mortgage of $145,000.At his option Bewkes could rescind the transaction (except for the original $5,000 payment) if Beinecke were unsuccessful in procuring registration of title to Share 10.In July, 1981, several months after the town lost its Land Court action seeking recovery of Share 10, Bewkes became a substitute petitioner in the registration case.Mooney, on direction from someone in the recorder's office at the Land Court, submitted a second supplemental title examination covering the period from 1967 to July 1, 1981, indicating that title was in Bewkes.In September, 1981, Bewkes paid the balance due to Beinecke and a broker's commission of $15,000.On December 9 1981, the Land Court issued a decree of registration and confirmation declaring Bewkes to be the owner in fee simple of all of Share 10.⁶

In the meantime, Devine had been at work.In 1980he discovered in Land Court records DeYoung's affidavit listing the errors in Mooney's 1966 title examination, and commenced the task of identifying people who might be successors in title to the grantees listed in Fox's 1874 and 1875 deeds of portions of Share 10.By early 1981he had located a number of such people.In exchange for a conveyance of one-half of each person's interest, Devine agreed to underwrite the cost of the litigation if it were unsuccessful.By September, 1981, Devine had agreements with six original plaintiffs and a deed from one of them.

This action was commenced on January 27, 1982, within two months of the entry of the decree in the registration case.The second amended complaint sought a determination that Bewkes held certain lots in Share 10 in a constructive trust for the plaintiffs; that Bewkes be ordered to convey certain numbered lots to particular plaintiffs as tenants in common; that Mooney be ordered to pay damages; and that the registration decree of December 9, 1981, be declared void and without force and effect.

After a trial involving numerous exhibits, the trial judge, sitting in the Land Court by designation, made extensive and thorough findings of fact.He then ruled that Devine could not assert his claim because his agreements with the other plaintiffs were champertous and unenforceable.⁷He ruled that certain plaintiffs had established that they were entitled to assert rights as successors to one or the other of Fox's grantees, and that other plaintiffs had not.He concluded that the 1963 tax assessment for Share 10 was invalid but that the 1967 decree foreclosing all rights of redemption in Share 10 was unassailable pursuant to G.L. c. 60, § 69A (1984 ed.), which, in the circumstances, purports to bar a proceeding to vacate a foreclosure decree brought more than one year after entry of the final decree.He also appears to have decided that the plaintiffs were barred by laches in their attempt to challenge the 1967 foreclosure decree.He further concluded that the registration of title in Bewkes's name was not obtained by fraud and that under G.L. c. 185, § 45 (1984 ed.), a registration decree could only be vacated on proof of fraud.He ruled that neither Beinecke nor Bewkes committed fraud on the Land Court and that Beinecke, whom Mooney represented for ten years in the registration case, was not chargeable with imputed knowledge of the fraud which Mooney committed on the Land Court in his 1966 title examiner's report.The judge thus ruled that the registration of title in Bewkes should stand and that there was no basis for imposing a constructive trust on Bewkes of any portion of the registered land.

The judge then turned to the question of Mooney's liability to the plaintiffs for fraud.He concluded that the claims against Mooney were not time barred.He ruled that Mooney's 1966 breach of duty to the Land Court was fraud in the sense, not of an intention to defraud, but as "such wilful disregard of the facts as to be tantamount to fraud."The judge held that Mooney was liable in fraud to those plaintiffs who had established their standing, and he assessed damages (totaling $75,000) based on the fair market value of their interests at the time this proceeding was commenced.⁸

Mooney has appealed, as have various plaintiffs, including Devine.We allowed Devine's request for direct appellate review.We need not decide many issues raised by the various appeals.We conclude that (1) the judge erred in his apparent conclusion that the plaintiffs were barred by laches and (2) there is a...