Summary of Opinion: Irene Jacobs v. Max Jacobs

Factual and Procedural Background

The plaintiff filed a bill in equity seeking to remove from certain Boston premises an alleged cloud on her title, consisting of a deed that was unacknowledged and unrecorded and that purported to be signed by her on April 7, 1944, conveying the premises to the defendant. The bill was filed in the Superior Court on July 8, 1946, and the suit was heard by Judge Cabot. On findings of fact without a report of the evidence, the trial judge found that the deed was not a forgery and that it had been delivered to the grantee, but that the delivery was subject to an agreement by the grantee not to record the deed until a certain mortgage on the premises was discharged. That mortgage had not been discharged. The trial court entered a final decree dismissing the bill, and the plaintiff appealed.

Legal Issues Presented

Whether an unacknowledged and unrecorded deed, delivered to the grantee but subject to the grantee's agreement not to record until a mortgage is discharged, is nevertheless effective to pass title to the grantee upon delivery.
Whether, given such facts, the grantor may obtain equitable relief to remove the deed as a cloud on the grantor's title.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dole v. Thurlow, 12 Met. 157, 162	That acknowledgment and recording are not necessary to the validity of a deed as between the parties.	Cited to support the principle that neither acknowledgment nor recording is required to pass title between the grantor and grantee.
Call v. Buttrick, 4 Cush. 345	That acknowledgment and recording are not necessary to the validity of a deed as between the parties.	Cited to support the same principle that delivery, not acknowledgment/recording, governs validity between parties.
McOuatt v. McOuatt, 320 Mass. 410, 413, 414	That acknowledgment and recording are not necessary to the validity of a deed as between the parties.	Cited as authority for the proposition that lack of acknowledgment and recording does not defeat the deed's validity between the parties.
Fairbanks v. Metcalf, 8 Mass. 230, 238	That an agreement by the grantee not to record is not, if it exists, a condition precedent preventing passage of title upon delivery.	Cited to support the court's conclusion that the grantee's agreement not to record did not prevent the deed from taking effect on delivery.
Ward v. Lewis, 4 Pick. 518, 520	That an agreement affecting recording does not necessarily operate as a condition precedent to transfer of title.	Cited in support of the proposition that the agreement not to record did not prevent passing of title.
Bromley v. Mitchell, 155 Mass. 509, 511, 512	That agreements collateral to delivery regarding recording do not necessarily prevent the transfer of title by delivery.	Cited to bolster the conclusion that the title passed despite the agreement not to record.
Howland v. Plymouth, 319 Mass. 321, 324	That delivery of a deed takes effect notwithstanding agreements concerning recording, unless the agreement is a condition precedent.	Cited to support the determination that the deed took effect on delivery and the agreement did not prevent transfer of title.
Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4847	That a grantee's agreement not to record does not necessarily prevent passing of title upon delivery.	Cited as additional authority for the proposition that the title passed upon delivery despite the agreement about recording.

Court's Reasoning and Analysis

The court accepted the trial judge's findings that the deed was genuine and had been delivered to the grantee, but that delivery had been accompanied by an agreement by the grantee not to record the deed until a specified mortgage was discharged, and that the mortgage remained undischarged. The court stated the governing legal principle that neither acknowledgment nor recording is necessary to the validity of a deed as between the parties, citing General Laws chapter 183, section 1 and supporting case law. The court then addressed the effect of the grantee's agreement not to record, stating that, even if such an agreement existed, it was not a condition precedent to the passing of title. Citing authorities on that point, the court concluded that the deed took effect upon delivery notwithstanding the agreement about recording. Because delivery had the legal effect of passing title out of the plaintiff, she lacked a basis for equitable relief to remove the deed as a cloud on her title.

Holding and Implications

Holding: Final decree dismissing the bill affirmed.

Implications: The direct effect of the decision is that the deed in question, though unacknowledged and unrecorded and delivered subject to an agreement not to record until a mortgage was discharged, was effective to pass title to the grantee upon delivery; consequently, the plaintiff may not obtain equitable relief to remove the deed as a cloud on her title. The opinion applies existing authorities to the facts and does not announce any novel legal principle beyond those cited.

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IRENE JACOBS vs. MAX JACOBS.

Deed, Validity, Acknowledgment, Recording.

A deed, although unacknowledged and unrecorded and delivered subject to an agreement by the grantee not to record it until a mortgage on the premises had been discharged, was effective to pass title to the grantee upon delivery, and precluded the grantor from obtaining against the grantee equitable relief on the alleged ground that the deed was a cloud on the grantor's title.

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.

JACOBS v. JACOBS