In Solans v. McMenimen (pdf), the Appeals Court reversed a lower court decision and ruled that an attachment against a person’s “right, title and interest” in real estate attaches all property then owned by that person, including property owned under an unrecorded deed. More significantly, the court ruled that such an attachment takes priority over a prior, unrecorded mortgage.
In this case, the deed to the property at issue (locus) was signed and delivered to the defendant on June 8, 2006. A mortgage was signed and given to the lender the same day. Neither the deed nor the mortgage was recorded. On September 14, 2006 a judge granted the writ of attachment, which the plaintiffs recorded on September 22, 2006. On October 13, 2006 the deed and the mortgage were finally recorded.
The Appeals Court found that the defendant acquired title to the locus on June 8, 2006, and that recording of the deed was not required to complete the conveyance. Because the defendant owned the locus at the time the attachment was recorded, all of the defendant’s real estate – including the locus – was attached. Turning to the issue of whether the attachment took priority over the then-unrecorded mortgage, the court cited M.G.L. c. 183, § 4 for the proposition that an instrument – such as a mortgage – is not valid against third parties until it’s recorded in the registry of deeds. Because an attaching creditor has the status of a purchaser for value, the creditor’s attachment takes priority over a prior, unrecorded mortgage.
For the conveyancers out there, two important lessons: (1) a title rundown should always be from the date of the deed, rather than the date it was recorded, and (2) record your documents – especially mortgages – promptly!