Opinion
14-P-1287
02-22-2016
PETER A. POULOS v. FINANCIAL FREEDOM & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Peter A. Poulos, individually and as trustee of the 48 Aunt Julia Ann's Road Trust, appeals from a summary judgment in favor of the defendants on Peter's complaint to quiet title to property owned as tenants in common by Peter, as trustee, and by Craig T. Rockwood, as trustee of the Snowden Family Trust, a trust established by Peter's deceased ex-wife, Katheryne Snowden Poulos (decedent). Peter's principal contention on appeal is that the mortgage the decedent granted in 2002 to the defendant, Financial Freedom (Freedom), should be declared void as it (i) violates a 1987 settlement agreement (agreement) between him and the decedent, among others, and (ii) encumbers all of the property instead of just the decedent's fifty-percent interest and life estate. Peter also appeals from the denial of his motion for reconsideration. We affirm.
We use first names due to the common surnames of the parties.
We refer the parties to the Land Court judge's recitation of the facts which are largely undisputed. First, we agree with the judge that even if the decedent had signed and is bound by the agreement, it simply did not preclude her, or Peter for that matter, from encumbering their respective interests in the property after a preliminary escrow period. In addition to the sections cited by the judge, paragraph fifteen of the agreement states that Peter and the decedent covenant that neither had encumbered the property except as previously noted in the agreement, and that during the escrow period referenced in paragraph fourteen, neither party will encumber the property with a mortgage. The agreement does not further restrict the parties from granting a mortgage on their individual interests in the property following the escrow period. The conspicuous absence of any further restriction on the parties is strong evidence that none was intended. Cf. Chatham v. Angier Chem. Co., 347 Mass. 208, 211 (1964). Thus, even if Peter had been successful in establishing a question of material fact as to whether the decedent signed the agreement, it was of no import where the agreement did not prohibit her from encumbering her share of the property with a mortgage.
The escrow period refers to the time period necessary for the decedent to pay Peter $40,000; it was scheduled to terminate on December 21, 1987.
For the same reason, there was no error in the denial of Peter's motion for reconsideration, based as it was in large part on his argument that he had discovered new evidence tending to show that the agreement had in fact been signed by all of the parties.
Second, during the course of litigation, Freedom conceded that the mortgage granted by the decedent encumbers only the fifty-percent share (and life estate) that the decedent owned at the time she granted the mortgage. Freedom concedes that Peter's fifty-percent interest is unencumbered by the mortgage. Unsatisfied, Peter contends the mortgage is void altogether because the decedent falsely claimed to be the one hundred percent owner and the mortgage was granted on the entire property. He contends the judge's conclusion that the mortgage granted by the decedent encumbers only her fifty percent, in effect, reforms the mortgage and there was no reformation claim in the case.
Two years later, the decedent's fifty percent was transferred to Rockwood as trustee of the Snowden Family Trust.
Peter cites no relevant authority for his position and makes no showing that he is entitled to the relief requested. Moreover, as a cotenant, Peter has standing only to ensure that the interest he owns is unencumbered by the acts of his cotenant, which Freedom's concession achieves. "The interest of a tenant in common is alienable, and may be transferred without the consent of the co-tenants by deed, lease, mortgage, will, or intestate succession." Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 n.21 (2008) (citation omitted). We discern no error in granting summary judgment to the defendants. The defendants' request for appellate attorney's fees is denied.
We agree with Peter that in light of Freedom's initial position that its mortgage encumbers all of the property and not just the decedent's interest in it, Peter, as trustee, had standing to bring this action to quiet title to the 48 Aunt Julia Ann's Road Trust's interest in the property. Although as noted in Altobelli v. Montesi, 300 Mass. 396, 399 (1938), the mortgage of a cotenant does not affect a cotenant's title as a matter of law and a cotenant generally is not entitled to maintain an action to quiet title, here it is clear that Freedom believed, and the mortgage documents indicated, that the mortgage the decedent executed as security for the reverse mortgage covered one hundred percent of the property and not just the decedent's fifty-percent share as a tenant in common. In the mortgage documents, the decedent covenants that she owns the property in fee simple absolute and has the right to mortgage, grant, and convey it, and fails to identify Peter's interest. In these circumstances, therefore, it was open to Peter to bring an action to quiet title.
Judgment affirmed.
Order denying reconsideration affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.