Charles S. Silver v. Donald R. Holtman
-- August 03, 2011
MEMORANDUM OF DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT # 165
This action pertains to the circumstances surrounding the plaintiff's attempt to record a document on the land records of the town of East Granby. The plaintiff has moved for partial summary judgment on the amended complaint, in which he seeks a writ of mandamus to compel the defendant, the town clerk Sheila M. Bailey, to record the document. The document at issue is captioned “AFFIDAVIT OF FACTS Under Conn. Gen.Stat. Sec. 47–12a.” The document states that the “PREMISES AFFECTED” is 6 Herman Drive, East Granby, Connecticut and lists the “RECORD OWNER” as Charles S. Silver and Walter McCue, Trustees P.A.T. Irrevocable Trust, 67 Laurel Lane, Simsbury, CT 06070.
It is undisputed that the subject affidavit was received for recording by the then town clerk, the defendant Elisabeth W. Birmingham, on July 28, 2005, and was recorded in volume 158, page 130 of the East Granby land records. The document was then “unrecorded” after the town clerk had discussions with the defendant Donald R. Holtman, the East Granby town attorney. The fact that the document was recorded and then unrecorded, and the interactions between the town clerk and the town attorney, are not relevant here.
The essential facts are not in dispute. The issue to be determined is whether the plaintiff is lawfully entitled to record the document. The resolution is governed by General Statutes §§ 7–24 and 47–12a.
Section 7–24(b) provides: “There shall be kept in each town proper books, or in lieu thereof a recording system approved by the Public Records Administrator, in which all instruments required by law to be recorded shall be recorded at length by the town clerk within thirty days from the time they are left for record.” (Emphasis added.)
Section 7–24 further provides in relevant part: “(c) The town clerk shall, on receipt of any instrument for record, write thereon the day, month, year and time of day when the town clerk received it, and the record shall bear the same date and time of day; but the town clerk shall not be required to receive any instrument for record unless the fee for recording it is paid to the town clerk in advance, except instruments received from the state or any political subdivision thereof. When the town clerk has received any instrument for record, the town clerk shall not deliver it up to the parties or either of them until it has been recorded ․
“(d) Each town clerk shall also, within twenty-four hours of the receipt for record of any such instrument, enter in chronological order according to the time of its receipt as endorsed thereon, (1) the names of sufficient parties thereto to enable reasonable identification of the instrument, (2) the nature of the instrument, and (3) the time of its receipt.” (Emphasis added.)
Section 47–12a, which is entitled “Affidavit of facts relating to title or interest in real estate,” provides in relevant part: “(a) An affidavit, which states facts relating to the matters named in subsection (b) of this section and which may affect the title to or any interest in real estate in this state, and which is made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the land records of the town in which the real estate is situated ․
“(b) The affidavits provided for in this section may relate to the following matters: Age, sex, birth, death, capacity, relationship, family history, heirship, names, identity of parties, marital status, possession or adverse possession, adverse use, residence, service in the armed § forces, conflicts and ambiguities in description of land in recorded instruments, and the happening of any condition or event which may terminate an estate or interest.
“(c) Every affidavit provided for in this section shall include a description of the land, title to which may be affected by facts stated in the affidavit, and shall state the name of the person appearing by the record to be the owner of the land at the time of the recording of the affidavit. The town clerk shall index the affidavit in the name of that record owner.” (Emphasis added.)
The plaintiff maintains that the document should be recorded since it complies with the requirements of § 47–12a. The defendants maintain that the document is not required by law to be recorded because it does not comply with § 7–24(d) in that it does not contain the name of a grantee or the name of the current owner.1
These parties have had a long history of litigation. The defendants used a considerable portion of their briefs informing the court of the difficulties that the town of East Granby, and other towns, have encountered in prosecuting tax lien foreclosures against individuals or entities connected to the plaintiff. They claim that the plaintiff's attempt to record this document is part of a plan to avoid the payment of taxes. Furthermore, the defendants point to the fact that the plaintiff has previously attempted to record documents which were recorded and then unrecorded by the town clerk. The actions of the town clerk were then approved by another trial court. The decision of that trial court was discussed in the case of McCue v. Birmingham, 88 Conn.App. 630, 870 A.2d 1126, cert. denied, 274 Conn. 905, 876 A.2d 14 (2005). That case does not help the defendants here for two reasons. First, the documents involved in McCue were different from the document at issue here. Second, the case was decided on the basis of res judicata, and not a review of trial court's rulings pertaining to the documents.
At the outset, the court notes the obvious fact that an affidavit relating to title of real estate is statutorily authorized by § 47–12a to be recorded on the land records. For this reason, the cases cited by the defendants concerning unauthorized documents are inapposite. See Laudano v. Laudano, 108 Conn. 37, 142 A. 407 (1928) (documents filed that claimed an interest in real estate were neither caveats or lis pendens ); Melechinsky v. Snow, Superior Court, judicial district of Hartford, Docket No. CV 92 0513259 (June 22, 1993, Satter, JTR) [9 Conn. L. Rptr. 305] (town clerk under no duty to record supplement to complaint that contained two counts in action brought against, among others, the Hartford Courant).
The affidavit at issue is made under oath, and it is notarized. It contains the following language:
“I, Charles S. Silver, being first duly sworn, hereby depose and say:
1. I have personal knowledge of the facts stated in this affidavit.
2. I am one of the trustees of the P.A.T. Irrevocable Trust, hereafter ‘the Trust,’ and have accepted the trust.
3. The other trustee, Walter McCue, died on August 30, 2004.
4. The trust is the record owner of the real estate located at 6 Herman Drive in the Town of East Granby, Connecticut, as more fully described in Schedule A attached to this affidavit.
5. A Notice of Trust with respect to the Trust was recorded in the East Granby Land Records, in Volume 106 at Page 495.
6. On December 7, 1998 the Trust executed a deed conveying the aforesaid real estate but to the undersigned's knowledge that deed has not been recorded.
7. On that date the Trust was terminated.
Dated this 20th day of July 2005.”
The court concludes that the subject affidavit complies with the requirements of § 47–12a. As allowed by § 47–12a(b), it relates to the death of a trustee, and an event which may terminate an estate or interest, specifically, the conveyance of the property. The affidavit complies with § 47–12a(c) in that it contains a description of the land affected, and states the person appearing by record to be the owner of the land at the time of the recording.
The thrust of the defendant's objection to the recording of the affidavit is that it will create confusion since the identity of the actual, present, owner of the land is not stated in the affidavit. The defendants misread the requirements of the statute. The affidavit need only state the person “appearing by the record to be the owner of the land.” The statute does not require that the affidavit name owners who do not appear on the land records. It is not the responsibility of the town clerk to assess the possibility of future confusion or even the accuracy of the statements contained in the affidavit. The only responsibility of the town clerk is clearly stated in § 47–12a(c): “The town clerk shall index the affidavit in the name of that record owner.” (Emphasis added.) The town clerk who received the affidavit on July 28, 2005, testified at a later deposition that the affidavit contained all of the information that she needed in order to properly index the document. See Deposition of Elisabeth W. Birmingham, November 10, 2009, pp. 21–24.
To be clear, this is not a ruling on the legal consequences of the affidavit upon the title to the subject land. The court only determines here that the affidavit complies with § 14–12a and that it is required by law to be recorded. The effect, if any, of the affidavit upon any future proceedings must be determined in those proceedings.
The plaintiff seeks summary judgment for the issuance of a writ of mandamus to compel the recording of the subject affidavit in the East Granby land records. “Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes ․ It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law ․ That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Miles v. Foley, 253, Conn. 381, 391, 752 A.2d 503 (2000).
The plaintiff has established that he has a legal right to have the subject affidavit recorded, and the court concludes the requirements for the issuance of a writ of mandamus have been satisfied. A writ of mandamus may issue ordering the defendant Sheila M. Bailey, town clerk, to record the original of the affidavit described herein upon the East Granby land records.
1. FN1. The defendants also object to the motion for summary judgment on the ground that the plaintiff's amended complaint, which was filed on March 1, 2011, is incomplete in that it is missing a page. It is noted that on April 14, 2011, the plaintiff filed a request to amend an amended complaint to correct this error. The defendants did not object to the plaintiff's request. Therefore, pursuant to Practice Book § 10–60(a)(3), “the amendment shall be deemed to have been filed by consent of the [defendants].” Accordingly, the complaint that was filed on April 14, 2011, is presently the operative pleading.
Domnarski, Edward S., J.