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Massachusetts Agencies

Death of Grantor before Filing of Conveyance

Registered Land

Under G.L.c. 185, §57 it is provided:

[N]o deed . . . or other voluntary instrument, except a will . . . purporting to convey or affect registered land, shall take effect as a conveyance . . ., but shall operate only as a contract between the parties . . . . The act of registration only shall be the operative act to convey or affect the land . . . .

Based on the foregoing language what happens, as here, if prior to registration of a document (i.e., the "operative act to convey"), the grantor dies? Does the grantor in such a case die owning the land, which then would devolve pursuant to his or her will or the laws of intestacy? The answer is found in Federal National Bank v. Gaston, 56 Mass. 471, 152 N.E. 924 (1926). In Federal National Bank the question was whether a party who had been granted a mortgage but did not possess the outstanding certificate of title (and so could not register the instrument) held a title that was thereby rendered inferior to that of the grantor's heirs or devisees or general creditors, where the grantor died before the mortgage was in fact filed for registration. The court said:

The law is settled in the case of unregistered land, that heirs, devisees and general creditors of one who has granted land by a deed that is not recorded take subject to the grantee in the unrecorded deed. [Citations omitted].

The reasoning of these cases rests in part upon an assumption that the legal title has passed to the grantee. No such assumption can be made under the Registration Act, for by its terms the title has not passed. Nevertheless, the decisions rest upon other than technical reasoning. The courts have felt that any other result was unjust. We do not think the Legislature contemplated that there should be any difference between registered and unregistered land in regard to . . . the rights of the [owner's] heirs or devisees.[1]

This is an important decision. It states, with specific reference to the death of an owner of registered land, that the heirs and devisees are bound by the deed of that owner, even though the instrument has not been recorded, but the decision is more global, in that it also sates that for the pose part the rules that governed unregistered land also apply to registered land. This highlights the point that, except with respect to the issuance of the court of the original decree of registration, the registered land section is a record-keeping division, much like the recorded section, and that the issuance of certificates after the original decree are not in the nature of judicial actions. Moreover, the Goldstein decision (cited in the footnote" states, for example, that "[i]n general the same principles that govern the effect to be given a plan in the case of unregistered land apply where the land is registered."

1 Accord, Goldstein v. Beal, 317 Mass. 750, 59 N.E.2d 712 (1945). The same rules that govern unregistered land apply to registered land.