Kozdras v. Land/Vest Properties, Inc.

• Decision Date: 03 December 1980
• Parties: Frank KOZDRAS et al. 1 v. LAND/VEST PROPERTIES, INC., et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1105

413 N.E.2d 1105

382 Mass. 34

Frank KOZDRAS et al. ¹ v. LAND/VEST PROPERTIES, INC., et al. ²

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 6, 1979.

Decided Dec. 3, 1980.

Alex H. MacDonald, Boston, for defendants.

Gary S. Sackridder, Salem, for plaintiffs.

Howard R. Palmer, Asst. Atty. Gen., for the Commonwealth, amicus curiae, submitted a brief.

Norman T. Byrnes and John T. Driscoll, Jr., Boston, for the Massachusetts Conveyancers Ass'n and another, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

The defendants (Associates) appeal from a judgment entered by a judge of the Superior Court ordering them to convey to the plaintiffs, Frank Kozdras and Bertha C. Kozdras, husband and wife as joint tenants, certain land in North Andover presently included in a certificate of title issued to the Associates pursuant to a decree by the Land Court. The Associates concede that the land had been owned by the plaintiffs prior to registration but claim that as a result of the registration proceedings any claim that the plaintiffs had to the land had been extinguished. The Associates argue that the evidence was insufficient to prove that they acted fraudulently. They therefore contend that the plaintiffs are not entitled to any relief, and that the judge should have entered a judgment for the defendants.

After a jury-waived trial limited to the issue of fraud, ³ the judge entered findings and rulings which, in substance, concluded that the plaintiffs had proved fraud in the registration proceedings. The judge found that in the petition to register the land the Associates made statements "which are contrary to fact yet susceptible of accurate knowledge. These statements were made as of defendants' own knowledge, but without such knowledge. They are technical and/or constructive fraud." The judge, relying on our decision in State Street Bank & Trust Co. v. Beale, 353 Mass. 103, 227 N.E.2d 924 (1967), entered a judgment ordering a reconveyance of the land by the Associates to the Kozdrases. The Associates appealed from that judgment to the Appeals Court, and we caused the appeal to be transferred to this court on our own initiative, acting pursuant to G.L. c. 211A, § 10(A). We conclude that the judge's findings are amply supported by the record. We therefore affirm the judgment.

We summarize the facts as they appear in the findings of the judge and in the record before us. On September 25, 1970, the Associates purchased some unimproved land by a deed which described the land conveyed as follows: "Three certain parcels of land on Salem Street and both sides of South Bradford Street, as shown on Sheets 1, 2 and 3 on a plan of land entitled: 'Plan of Land Owned by Fuller Farm Trust, Located in North Andover, Mass., Dated January, 1970. Charles E. Cyr, Civil Engineer' said plan being recorded in the said (North Essex) Registry of Deeds as Plan No. 6148, and containing collectively 195.9 acres more or less, according to said plan."

At the time of the purchase the Associates through their counsel knew that the seller had deeds for only 34 of the 93.3 acres depicted on sheet 3 (the relevant portion of the Cyr plan). Counsel also knew that the assessor's records showed the seller as the owner of only 32.6 acres in the deeded area. ⁴ The official plan on file in the assessor's office accurately depicted the location of the Kozdrases' land.

On December 31, 1970, the Associates filed a petition in the Land Court to have their title to the land "registered and confirmed" under G.L. c. 185. In that petition they described each of the three parcels in detail by metes and bounds, with the names of the supposed abutting owners, all as shown on the plan referred to in their deed.

The plan filed by the Associates (the Cyr plan) had been prepared by a private civil engineering firm hired by the seller of the three parcels. This plan did not conform to the official assessor's plan. A rough sketch of the parcel, which differed from the Cyr plan, was brought to the assessor's office for certification of the names of the adjoining owners. The Kozdras plot was shown on the rough sketch as an abutting parcel. The assessor checked the plan submitted by the Associates to see if all the abutters were listed on the plan, then signed it. ⁵ The Cyr plan, however, included twelve acres owned by the Kozdrases in the parcel to be registered. This was the map that was filed by the Associates with the petition for registration. See G.L. c. 185, § 33. ⁶

The petition for registration described the parcel shown on the plan (sheet 3) filed with the Land Court as bound "Northerly and Northwesterly by land now or formerly of Frank Kozdras, 1113.75 feet." By statute, the Associates were required to state in their petition "the names and addresses of the adjoining owners and occupants, if known; and if not known, (to) state what search has been made to find them." G.L. c. 185, § 28, as amended by St.1971, c. 423, § 3. The list which the Associates filed included the name and address of Frank Kozdras. The Associates also listed a mortgage and two easements which affected the parcel but made no reference to the ownership of any right, title or interest in the land by the Kozdrases.

The Land Court, as required by G.L. c. 185, § 37, referred the petition for registration to one of its title examiners to "search the records and investigate all facts stated in the petition, or otherwise brought to his notice, and (to) file in the case a report thereon, concluding with a certificate of his opinion upon the title." The same statute provided that "(i)f the opinion of the examiner is adverse to the petitioner, he shall be allowed by the court a reasonable time in which to elect to proceed further or to withdraw his petition. The election shall be made in writing ...." ⁷ The report of the examiner which was filed with the recorder is not a part of the record before us. However, it must have been adverse to the Associates in some respect because the Associates filed an election, under G.L. c. 185, § 37, to proceed further with the petition.

As a result of the Associates' election, notice of the proceedings was published. G.L. c. 185, § 38. ⁸ Additionally, the Land Court had a copy of the notice sent by registered mail to Frank Kozdras, as required by G.L. c. 185, § 39. The notice, as published, and as mailed to and received by Frank Kozdras, ⁹ contained virtually the same description of land which was contained in the petition filed by the Associates, and listed Kozdras as an owner of abutting land. This was the only notice received by the Kozdrases. They had no notice that their land was actually included in the plan that was filed and used to identify the parcel being registered. ¹⁰ The notice gave no indication that the Cyr plan differed from the plan in the assessor's office. Nothing in the plan filed or the notice sent gave any indication of the fact that the Associates knew that their seller had deeds for less than 34 of the 93.3 acres shown on the relevant section (sheet 3) of the Cyr plan.

The notice sent made reference only to the Cyr plan as filed with the petition in the Land Court. It also stated that any person who desired "to make any objection or defense to said petition" had to file a written appearance and answer with the Land Court on or before August 23, 1971, and that "(u)nless an appearance is so filed by or for you, your default will be recorded, the said petition will be taken as confessed and you will be forever barred from contesting said petition or any decree entered thereon."

Frank Kozdras took his notice to an attorney who advised him that since he was an abutter, he did not have to do anything with regard to the registration of the land or concern himself further with it. Frank Kozdras, therefore, filed no appearance in the Land Court proceedings, which culminated with the entry of a decree on May 24, 1973, for the confirmation and registration of title of the Associates in and to the land involved in the petition.

Two years later, in 1975, the Kozdrases learned for the first time that the petition by the Associates for the confirmation and registration of title, the description of the land covered thereby, and the Cyr plan filed with the petition, had included 12 acres of land actually owned by them. On November 19, 1975, the Kozdrases commenced the present proceeding by a complaint which concluded in part that the Associates "knew or had reason to know that part of the land which they were seeking to register belonged to the plaintiffs (the Kozdrases), or that the plaintiffs claimed an interest therein"; that the Associates' Land Court petition "did not disclose that they knew that the plaintiffs claimed an interest in said land sought to be registered"; and that the Associates "were under a duty to disclose in said petition all adverse interests claimed in said lands, whether they be legitimate or otherwise."

The Associates filed a motion for summary judgment on the issue of the Superior Court jurisdiction "to entertain the action." After the motion for summary judgment was heard, the motion judge limited the plaintiffs to the issue of fraud. See note 3, supra. The matter was tried before a judge of the Superior Court, jury waived, and the judge made the following findings. "The petition for registration contains statements which are not true. The certificate concerning adjoining owners is not true. The sketch with the certificate concerning adjoining owners is not true.

"The Land Court Plan filed by defendants is erroneous. It does not show the land and its ownership as it really is in fact.

"Twelve acres belong to the plaintiffs. In this trial before me defendants made no real denial of this. They now know it is so. The testimony of the Title Examiner engaged by the plaintiffs clearly shows that the...