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Massachusetts Agencies

Applied to Quitclaim Deed

Estoppel by Deed

The case of Zayka v. Giambro, 32 Mass.App.Ct. 748, 594 N.E.2d 894 (1992) is a decision that, at least in some instances, expands the theory of estoppel by deed, which has historically been considered to apply only to deeds with warranty covenants, including mortgages. This theory is described in the classic case of Ayer v. Philadelphia & Boston Face Brick Company, 159 Mass. 84, 34 N.E. 177 (1893), which is cited most frequently for the proposition. It is a theory, however, which was not new even to the Ayer court. In quoting Knight v. Thayer, 125 Mass. 25 (1878), Justice Holmes said in Ayer:

It has been the settled law of this commonwealth for nearly forty years, that, under a deed of covenants of warranty from one capable of executing it, a title afterwards acquired by the grantor inures by way of estoppel to the grantee, not only as against the grantor, but also as against one holding by descent or grant from him after acquiring the new title.

In Zayka the rule of estoppel by deed was expanded. In this case Dad owned a large piece of property, which included, among other parcels, locus. Dad conveyed all of the property to Mom. Mom died and, under the rules of intestate succession, Dad inherited a one-third undivided interest in all the property, which he held in common with a two-thirds undivided interest which Mom's eleven children inherited.

Dad forgot that he had previously conveyed the property to Mom and believed that he owned the property entirely in his own name. Based on that assumption Dad conveyed locus (a portion of the property) to his Favorite Son. Dad also conveyed an adjoining parcel (again, part of the entire property) to Hodson.

Soon thereafter the title defect was discovered and the eleven children, including Favorite Son, joined in a deed, conveying their interest in the entire property to Dad. Hodson asked for and received a confirmatory deed from Dad, but Favorite Son did not.

Favorite Son, who made many improvements to locus, approached Dad later and asked if he would convey additional adjoining land, that came out of the same title, to him and his new wife. Dad complied.

Dad died and, under the laws of intestacy, the same eleven children, who had given a deed to Dad before, inherited whatever real estate he owned at the time of his death, including, supposedly, locus. When the title to locus was rejected as unmarketable due to the outstanding two-thirds interest in the property then vested in the eleven children (i.e., the interest Dad died owning which he had obtained by deed from his children after Mom's death, but with respect to which he had not given a confirmatory deed to Favorite Son) Favorite Son approached his siblings and asked that they once again join in a deed to him, thus vesting all interests in locus in him. They all complied, except for one sister.

Favorite Son sued his sister, and although the trial court held that Favorite Son had good title based on adverse possession, mutual mistake and estoppel by deed, the Appeals Court elected to decide the case solely on the last basis. The court said:

Estoppel by deed occurs when, as in this case, a grantor conveys property by deed which unknown to the grantee [and, in this case, unknown to the grantor] the grantor does not own at the time of the conveyance, but which the grantor later acquires. In such case, the grantor (and anyone claiming under him) is estopped from asserting against the grantee a claim of title to the property conveyed.

* * * * *

Generally, however, application of the doctrine of estoppel by deed is limited to warranty deeds. * * * The warranty covenants in the warranty deed [constitutes] a declaration by the grantor that the grantor has a good title to convey . . . . [T]he authorities reflect unease about extending estoppel to other than warranty deeds.

* * * * *

[T]he norm in contemporary conveyancing is the short form quitclaim deed . . . . If estoppel by deed is a sound principle, no compelling logic or binding precedent proscribes its application to a quitclaim deed.

* * * * *

Application of estoppel by deed to a quitclaim deed is particularly compelling where, as here, the claim against the title is made by someone who bases her claim on direct descent by blood from the grantor. Quitclaim covenants, after all, do warrant that the grantor shall not impair the title and shall defend the title against those claiming under the grantor. The case might stand differently had there been an intervening bona fide purchaser who had no notice of the purported conveyance of the locus by [Dad] to [Favorite Son]. (Emphasis added).

See also Dalessio v. Baggia, 57 Mass.App.Ct. 468, 783 N.E.2d 890 (2003), where the court recognized the doctrine and its applicability to quitclaim deeds, but did not apply the doctrine because in fact there was an intervening bona fide purchaser.

There are other theories of estoppel as well. See Crocker's Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), where this is said:

§151. Estoppel of fiduciary. Where the guardian, in a deed executed by him as such, covenanted that he was "lawfully authorized and empowered to make sale of the granted premises," it was held that he was thereby estopped from setting up any claim to such premises previously acquired by him in his own right. Heard v. Hall, 16 Pick. 457. And it would seem that the result would be the same where an executor, guardian, etc., purports to convey the property of another by virtue of a power or license, even though the deed contains no covenant whatsoever. Poor v. Robinson, 10 Mass. 131. See also Langley v. Conlan, 212 Mass. 135, 98 N.E. 1064, a case of a donee of a power who was held estopped by her previous mortgage with warranty covenants.