In a case of first impression, the Appeals Court ruled last week in Allen v. Allen that a recorded deed with an acknowledgement falsely stating that the grantor had personally appeared before the notary public was unenforceable against a family member with a competing, subsequently recorded deed.
Allen pitted the plaintiff sister, Deborah, against her defendant brother, Harold Jr. In July, 2001, the siblings’ mother, Ethel, signed a deed conveying her Lexington home to Harold Jr. That deed was recorded in August, 2001 with a facially valid acknowledgement. In November, 2001, Ethel created a realty trust and conveyed the same property to herself and Deborah as trustees, reserving a life estate for herself and providing that, upon her death, the property would be sold and the proceeds divided among several of her descendants, including Deborah but – wait for it – excluding Harold Jr. Fast forward to 2009: Ethel dies, Harold Jr. whips out his 2001 deed, and Deborah marches into Land Court.
The case went to trial on several issues. Regarding Harold Jr.’s deed, the Land Court found that, while Ethel’s signature on the deed was genuine, she did not – contrary to the acknowledgement – personally appear before the notary (an attorney who was friendly with Harold Jr.). Rather, the court found, Ethel signed the deed in front of Harold Jr., who then brought it to the notary to get his signature on the acknowledgment. Under M.G.L. c. 183, § 29, a deed may not be recorded without a proper acknowledgement. Because the one on Harold Jr.’s deed – though facially valid – was defective, the deed was not entitled to be recorded; therefore, the court reasoned, the deed did not provide constructive notice to third parties, including, in this case, Deborah.
The Appeals Court affirmed the Land Court’s decision in all respects, agreeing that “the latent defect in the certificate of acknowledgement of the July  deed prevented it from giving constructive notice to Deborah of the prior conveyance.” Because Deborah had no actual notice of that conveyance, Ethel’s November 2001 deed to herself and Deborah as trustees ostensibly passed good title to the Lexington property.
Deborah may have won this battle, but the war apparently isn’t over. In a footnote, the Appeals Court mentions that Harold Jr. has filed a separate Land Court case alleging that Ethel’s November 2001 deed was the product of undue influence. Stay tuned.