Halloween's Not Over Yet

by Gary Casaly, Esquire

Some goblins look meaner than they are. Let's say, for example, that you record some documents but later find out that you recorded them out of order. I get this question on a weekly basis. Is there a problem that now has to be corrected? Generally, no. The question of documents recorded out of order was addressed in King v. Stephens, 9 Mass.App.Ct. 919, 404 N.E.2d 115. According to the dates on the deeds, this is what happened in King:

  1. Andrew and William held title.
  2. By deed dated 10/02/94 William conveyed all of his interest to Andrew. Andrew thus owned the property.
  3. By deed dated 10/05/94 Andrew conveyed a half interest to William. Andrew and William thus held half interests.
  4. By deed dated 03/30/97 Andrew conveyed his remaining half interest to William. William, therefore held all the title.

The deeds noted above are listed in the order of their execution. However, the deeds of 10/02/94 and 10/05/94 were recorded out of order. Based on this order of recording, the record title looked like this:

  1. Andrew and William held title.
  2. Andrew conveyed a half interest to William. (This is the 10/05/94 deed.) If the order of recording controlled, Andrew would have a quarter interest and William would have a three-quarters interest.
  3. William conveyed all his interest to Andrew. (This is the 10/02/94 deed.) If the order of recording controlled, this would have put all title back to Andrew.
  4. Andrew conveyed a half interest to William. (This is the 03/30/97 deed.) If the order of recording controlled, this would have resulted in Andrew and William again holding a half interest each.

The court said the order of recording was not important.

The problem presented is not one of priority as between two conflicting, successive conveyances to bona fide purchasers, or persons claiming under them, of the same legal interest in land, and thus is not a problem to be resolved by application of the recording statute …. The deeds … were valid between William and Andrew when delivered, and were valid against all other persons when the deeds were recorded …. (Emphasis added.)

Where third parties competing under different chains of title are involved they are entitled to rely upon the record and in such cases the recording statute will preserve the rights and resolve the issue. Otherwise the recording statute—and thus the order of recording—is irrelevant.

There are other ghosts and demons that are not so friendly. Let's say you're doing a title and you come upon a will where the testator provided that he left his property "to my son Thomas … and my son William … share and share alike, or to the survivor of them." If Thomas and William both survived the testator, would they hold their title jointly? Or, is the provision some sort of a "class gift," which would vest one of the children with all the title at the time of the testator's death in the event that the other child predeceased the testator? This could make a big difference, especially if both children survived the testator.

If the brothers took a class gift, then upon the death of the testator they would hold their title in common. But if the devise vested title in them as joint tenants the death of one after the testator would (absent a severance of such a tenancy) vest the entire title in the survivor at that time. In this regard it's provided under G.L.c. 184 §7 that a "devise" to two or more persons shall vest them as tenants in common unless it is expressed that the devise "to them and the survivor of them." Would the above devise be governed by the statute? In Cross v. Cross, 324 Mass. 186, 85 N.E.2d 325 (1949) the court said that the sons took the title equally upon the testator's death as tenants in common, noting that "[t]he expression 'share and share alike,' standing alone would create a tenancy in common [citations omitted]." The court rejected the notion that a joint tenancy had been created but said, with respect to the question of a class gift among the brothers, "we think that the purpose of the latter words 'or to the survivor of them' was to provide for the contingency where only one son might be living [at the testator's death]. In such case the surviving son was to take all." [Citation omitted.] As both sons were [living at the testator's death], the controlling words are those creating a tenancy in common, ant the sons took equally." (Significantly, the sons had been identified by name in the will. However, in Smith v. Haynes, 202 Mass. 531, 89 N.E. 158 (1909), where certain grandnieces had been identified simply as the "8 children of my Niece Florence Fellows" without language concerning survivorship, the court held there was a class gift, though the will used the term "share and share alike," since otherwise the gift would have lapsed, there being no issue of one of the grandnieces who predeceased the testator. This demonstrates the rule that the law abhors an intestacy.)

Other title matters that look like Casper the Friendly Ghost really end up being more like the spirits unleashed from the box in "Raiders of the Lost Ark." Let's say that you see a deed on record to John Jones. John then declares a homestead. Some time later John decides to sell his property to your client. John shows up at the closing with the deed from himself to your client. Someone at the closing suggests that it may be necessary for John to specifically release the homestead rights in the deed, so an additional paragraph is added to the deed for this purpose. John then signs and acknowledges the deed and it is recorded.

Although the dower as an inchoate right of a spouse has been eliminated in Massachusetts (except as to property owned at the time of death), homestead rights have not. Although John in our example held title in his own name, when he declared a homestead he created rights in the property in favor of his family, if any. Ordinarily, as we know, a person is free to sell and convey his or her own property without the consent of other family members, including a spouse. If John did not have a spouse then there would be no title issues (unless the homestead was declared between December 5, 1977, and August 30, 1979), but if he was married when he executed the deed to your client then his spouse would have to join in the deed in order to effectively release the homestead. The question, of course, is this: did anyone address the question at the closing regarding John's marital status? Did the deed state that John was "unmarried"?

The above issue might easily be overlooked at the closing, especially where nowhere in the title is there any mention of, or title held by a named spouse. However, when you client goes to sell the property it's likely that the purchaser will want proof that John was a bachelor or widower at the time the deed was executed, notwithstanding the fact that John alone held the title in his own name. Although it is clear that one spouse can hold title separately and does not need any approbation from the other spouse to sell, once a homestead has been declared everything changes and it is then necessary to inquire into whether there is a spouse, though the record title does not disclose one.

Staying with titles concerning spouses for a moment, let's look at a few situations flanked by goblins that can easily be missed and then end up haunting you. Let's go back to our example of John. This time, however, John doesn't declare a homestead but instead decides to actually bring his spouse into title by conveying an interest in his new condo to her outright. He does this by executing and recording a deed in which he is the grantor and he and his spouse are the grantees, designated as holding title as "tenants by the entirety." There would seem to be no doubt, under G.L.c. 184 §8, that this conveyance will in fact create the desired tenancy between the parties. The statute states that "a conveyance of real estate by a person to himself and his spouse as tenants by the entirety shall create a tenancy by the entirety." Seems like a pretty straightforward statute, and one might wonder why it was ever enacted. The reason, of course, is that at common law such a conveyance of the kind made by John would, regardless of the recitations in the deed, create a tenancy in common only because at least one of the "Four Unities" would be broken. In other words, the statute is in derogation of the common law. This is an important point, because until the statute was in force and effect the common law would govern the conveyance. So, if you see John making this kind of conveyance, be sure that you check to see that the deed was dated after 1954, because before then no tenancy by the entirety would be created. This analysis is crucial, especially if one of the parties dies thereafter, because the death of one would not vest the other with title. A probate of the deceased spouse would, in such a case, be required.

Another little, but rare, trap that can catch you regarding conveyances concerning spouses is the fact that until 1975 a deed between them conveyed no title until "duly acknowledged and recorded." See G.L.c. 209, §3 before its 1975 amendment. Although a deed (except in the case of registered land) is deemed to be effective, at least as between the parties, at the time it is delivered, this rule did not apply to conveyances between husband and wife until 1975. So, MCA Title Standard No. 46 ("Delayed Recordings"), which otherwise would validate a deed recorded an appreciable time after it is executed "whether or not the grantor is alive … at the time of the recording" would be inapplicable. The Standard acknowledges this in its Caveat.