## Facts

- A mother (Ethel Allen) owned a house in Lexington, Massachusetts.
- In July 2001, Ethel executed a deed purporting to convey the house to herself and her son (Harold Allen, Jr.) as joint tenants with right of survivorship.
- The July deed contained a notarized acknowledgment stating Ethel appeared before the notary and acknowledged execution, but the trial judge found Ethel did not sign the deed in the notary’s presence, making the acknowledgment materially defective.
- In November 2001, Ethel executed a second deed conveying the same property to a realty trust for which Ethel and her daughter (Deborah Allen) were co-trustees; the trust arrangement contemplated sale and division of proceeds.
- The November deed was recorded in February 2002.
- After Ethel died in 2009, Harold produced the previously undisclosed July deed and claimed sole ownership as surviving joint tenant.
- Deborah brought an action in the Massachusetts Land Court asserting the trust’s title under the November deed and challenging the July deed’s enforceability.
- After a bench trial, the Land Court ruled for Deborah, concluding the defective acknowledgment prevented the July deed’s recording from providing constructive notice and rendered the deed unenforceable against Deborah.

## Issues

1. Whether recording a deed with a materially defective acknowledgment provides constructive notice under Massachusetts recording law and makes the deed enforceable against a subsequent grantee without actual notice.
2. Whether the Land Court improperly decided the case on an acknowledgment-defect theory purportedly outside the pleadings.
3. Whether the finding that the grantor did not sign in the notary’s presence (and thus the acknowledgment was defective) was clearly erroneous.
4. Whether statutory recording provisions, including a “safe harbor,” could validate the July deed’s effect against a later grantee despite the defective acknowledgment.
5. Whether the July deed was enforceable because the later grantee had actual notice or because her status as an heir limited recording-act protections.
6. Whether denial of the defendant’s motion to amend his counterclaim was an abuse of discretion.

## Decision

- The Massachusetts Appeals Court affirmed the Land Court’s judgment for Deborah.
- A deed with a materially defective acknowledgment is not entitled to impart constructive notice by recording and is unenforceable against a subsequent grantee who lacks actual notice.
- The acknowledgment-defect theory was treated as within the scope of the issues tried and not an improper departure from the pleadings.
- The trial judge’s findings regarding execution outside the notary’s presence were not clearly erroneous.
- The statutory “safe harbor” and related recording defenses did not cure a defect going to the substance of acknowledgment (no personal appearance before the notary).
- Harold failed to prove Deborah had actual notice, and Deborah’s position as a recorded grantee under the later deed permitted reliance on recording-act protections.
- Denial of the motion to amend the counterclaim was not an abuse of discretion given timing and the proposed shift in theories.

## Legal Principles

- Under Massachusetts recording law, an acknowledgment is a substantive prerequisite for a deed to provide constructive notice to third parties through recording.
- A recorded instrument with a materially false or defective acknowledgment (including lack of the grantor’s appearance before the notary) does not provide constructive notice to subsequent purchasers or grantees without actual notice.
- Recording-statute curative or “safe harbor” provisions do not rehabilitate an instrument where the defect concerns the core requirement of a valid acknowledgment rather than a minor technical or clerical irregularity.
- Pleadings may permit adjudication on a theory developed by the trial evidence when the validity and enforceability of the instrument are put in issue and the matter is fairly tried.
- Appellate review of factual findings after a bench trial is deferential; findings stand unless clearly erroneous.
- A trial court may deny a late motion to amend a counterclaim when it would materially alter the case after trial and judgment without adequate justification.

## Conclusion

The court held that a deed recorded with a materially defective acknowledgment does not give constructive notice and cannot defeat a later, properly recorded conveyance to a grantee who lacked actual notice, and it affirmed judgment quieting title in favor of the later grantee.


Allen v. Allen, 16 N.E.3d 1078 (Mass. App. Ct. 2014)