RAYMOND W. J. CAMPBELL & another vs. THE FIRST NATIONAL BANK OF AMHERST & another.

RAYMOND W. J. CAMPBELL & another [Note 1] vs. THE FIRST NATIONAL BANK OF AMHERST & another. [Note 2]

379 Mass. 512

December 6, 1979 - January 10, 1980

Hampshire County

Present: HENNESSEY, C.J., QUIRICO, WILKINS, LIACOS, & ABRAMS, JJ.

A recorded mortgage deed purporting to relate to "[a]ll right, title and interest in and to the land owned by the mortgagor located in Hampshire County" was not subordinated to a subsequent mortgage by virtue of G. L. c. 183, Section 6A. [512-514]

CIVIL ACTION commenced in the Hampshire Division of the Probate and Family Court Department on February 5, 1979.

The case was heard by Nuciforo, J., on a motion for summary judgment.

The Supreme Judicial Court granted a request for direct appellate review.

Paul T. Ford for the plaintiffs.

Stephen B. Monsein for The First National Bank of Amherst.

WILKINS, J. In April, 1976, the Wendell Development Corporation (Wendell) obtained a loan from the plaintiffs and gave them a mortgage on an unregistered parcel of land in Amherst. At that time, there was on record a mortgage deed from Wendell to the defendant bank purporting to relate to "[a]ll right, title and interest in and to the land owned by [Wendell] located in Hampshire County." In this proceeding the plaintiffs seek a determination that the mortgage to the bank is subordinate to their mortgage. They

Page 513

argue that the general description in the mortgage deed to the bank prevents it from being effective, at least as to them. The bank filed a motion for summary judgment which was allowed, and judgment was entered for the bank. We granted the plaintiffs' application for direct appellate review. We agree with the judge's conclusions, but, because the plaintiffs seek a declaration of rights in this proceeding, we order the entry of judgment that the plaintiffs' mortgage does not have priority over the bank's.

It is agreed that Wendell acquired the subject parcel in 1974 by deed and immediately gave a mortgage to a savings bank. The deed and the mortgage were recorded. Wendell's subsequent mortgage deeds, first to the bank and then to the plaintiffs, were recorded in 1976.

The plaintiffs argue that the mortgage to the bank fails to comply with G. L. c. 183, Section 6A, as appearing in St. 1970, c. 222, which is set forth in full in the margin. [Note 3] We shall assume, without deciding, that a mortgage deed, including a second mortgage, conveys land within the meaning of Section 6A. There is no suggestion in Section 6A, however, that, if an instrument is accepted for recording in violation of the provisions of Section 6A, any adverse consequences must follow. Indeed, Section 6A indicates that failure to comply with its terms "shall not affect the validity of any instrument." In any event, Section 6A is inapplicable to any instrument that states that it "does not create any new boundaries." Although that explicit statement does not appear in the bank's mortgage deed, the fact that the mortgage deed created no new

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boundaries is obvious from its terms. Section 6A does not aid the plaintiffs.

Apart from considerations of Section 6A, there is no basis for subordinating the bank's mortgage as to land owned by Wendell pursuant to a deed of which the plaintiffs had constructive notice because it was recorded prior to the recording of the bank's mortgage. See Hampshire Nat'l Bank v. Calkins, 3 Mass. App. Ct. 697 , 698-699 (1975), where the mortgage description ("all of our . . . land situated within Hampshire County") was substantially the same as that involved in this case.

Judgment shall be entered declaring the rights of the parties in accordance with this opinion.

So ordered.

FOOTNOTES

[Note 1] Lillian I. Campbell.

[Note 2] Wendell Development Corporation.

[Note 3] "No instrument conveying unregistered land shall be accepted for recording unless (a) the instrument indicates that the land conveyed is the same as described in or conveyed by prior recorded instruments identified sufficiently to locate the place of recording within the registry, or states that the instrument does not create any new boundaries, or (b) the instrument identifies the land conveyed either by reference to a plan or plans previously recorded in the same registry of deeds and identified sufficiently to locate the place of recording therein, or by reference to a plan or plans recorded with the conveyance. Failure to comply with this section shall not affect the validity of any instrument."