Jacobs v. Jacobs

73 N.E.2d 477, 321 Mass. 350, 1947 Mass. LEXIS 637

Opinion

Lummus, J.

The plaintiff brings this bill to remove from premises in Boston an alleged cloud upon her title consisting of an unacknowledged and unrecorded deed of said premises purporting to be signed by her on April 7, 1944, and to convey them to the defendant.

The case comes here upon findings of fact made by a judge,, without a report of the evidence. The judge found that the deed was not a forgery, and was delivered to the grantee. But he found that the delivery was subject to the agreement of the grantee not to record the deed until a certain mortgage on the premises should be discharged, and ■ that said mortgage has not been discharged. From a final decree dismissing the bill, the plaintiff appealed.

• ..Neither acknowledgment nor recording is necessary to the validity of a deed as between the parties to it. G. L. (Ter. Ed.) c. 183, § 1. Dole v. Thurlow, 12 Met. 157, 162. Call v. Buttrick, 4 Cush. 345. McOuatt v. McOuatt, 320 Mass. 410, 413, 414. Notwithstanding the agreement of the grantee not to record the deed until the mortgage should be discharged, it took effect upon the delivery. The agreement, if a condition at all, was not a condition precedent, and did not operate to prevent the passing of the title. Fairbanks v. Metcalf, 8 Mass. 230, 238. Ward v. Lewis, 4 Pick. 518, 520. Bromley v. Mitchell, 155 Mass. 509, 511, 512. Howland v. Plymouth, 319 Mass. 321, 324. Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4847.

Since the delivery of the deed took the title out of the plaintiff, she cannot have relief.

Final decree affirmed with costs.