Allen v. Allen
86 Mass. App. Ct. 295 (2014)
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Rule of Law:
A deed recorded with a latently defective certificate of acknowledgment, where the grantor did not personally appear before the notary as stated, is not properly recorded and thus fails to provide constructive notice to a subsequent bona fide purchaser.
Facts:
- Ethel Allen and her husband owned a house and consistently structured their estate plans to exclude their sons, Harold Allen, Jr. and Lawrence, because they had received substantial lifetime gifts.
- In late April 2001, Ethel began moving from her Lexington, MA home to live with her daughter in New Hampshire, completing the move by mid-July 2001.
- On July 23, 2001, Ethel executed a deed (the July deed) conveying the house to herself and her son, Harold, as joint tenants. The deed included a certificate of acknowledgment signed by Attorney Paul Maloy stating Ethel had personally appeared before him.
- In fact, Ethel never appeared before Attorney Maloy; she signed the deed in Harold's presence, and Harold then brought the signed deed to Maloy, who notarized the acknowledgment.
- Attorney Maloy recorded the July deed on August 10, 2001.
- On November 30, 2001, Ethel established the Allen Realty Trust and executed a second deed (the November deed) conveying the same property to herself and her daughter, Deborah Allen, as cotrustees.
- The November deed was recorded on February 8, 2002. Deborah had no actual notice of the July deed.
- Harold did not reveal the existence of the July deed to his siblings until after Ethel's death on December 20, 2009.
Procedural Posture:
- Deborah Allen brought an action against her brother, Harold Allen, Jr., in the Massachusetts Land Court (a trial court).
- The initial complaint alleged that the July deed held by Harold was a forgery.
- After a jury-waived trial, the Land Court judge found that Ethel's signature on the July deed was authentic.
- However, the judge also found that Ethel never personally appeared before the notary to acknowledge the deed.
- The Land Court ruled that the defective acknowledgment rendered the recording of the July deed ineffective to provide constructive notice to Deborah, making it unenforceable against her.
- Harold Allen, Jr., the defendant, appealed the judgment of the Land Court to the Massachusetts Appeals Court (an intermediate appellate court).
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Issue:
Does a recorded deed with a latently defective certificate of acknowledgment, where the grantor did not personally appear before the notary, provide constructive notice to a subsequent grantee without actual notice, thereby granting the first grantee superior title?
Opinions:
Majority - Katzmann, J.
No. A deed with a latently defective acknowledgment is not entitled to be recorded, and its improper recording does not provide constructive notice to subsequent grantees. An acknowledgment is a prerequisite for a deed to be validly recorded and to provide constructive notice. Here, the trial court found that Ethel Allen did not personally appear before the notary to acknowledge the July deed, despite the certificate stating she did. Relying on precedent such as McOuatt v. McOuatt, the court held that the recitals in a certificate of acknowledgment may be contradicted by evidence, and a facially correct but factually false acknowledgment fails to satisfy the statutory requirement. An 'improvidently recorded' deed does not operate as constructive notice. Therefore, because the July deed was not properly acknowledged, its recording was ineffective against Deborah, who was a subsequent grantee without actual notice. The court also rejected Harold's argument that the 10-year statutory safe harbor cured the defect, because Deborah commenced her legal proceeding within the ten-year period, which is all the statute requires to prevent the cure.
Analysis:
This case establishes a significant precedent in Massachusetts property law by confirming that a latent defect in a deed's acknowledgment renders its recording ineffective for providing constructive notice. The decision prioritizes the substantive requirement of a personal appearance before a notary over the facial validity of the recorded instrument. This protects subsequent bona fide purchasers from unrecorded or improperly recorded interests, reinforcing the reliability of the public recording system. The ruling places the risk of an improper acknowledgment on the grantee who obtains and records the deed, rather than on subsequent purchasers who rely on the integrity of the chain of title.
