Baldi v. John T. Broderick, Jr., et al
ORDER denying 131 Motion for Writ of scire facias. So Ordered by Judge Paul J. Barbadoro.(vln)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ronald and Gail Brown
Civil No. 04-cv-466-PB
Opinion No. 2017 DNH 135
John A. Baldi
MEMORANDUM AND ORDER
Ronald and Gail Brown seek a writ of scire facias in an
effort to collect on a 2007 judgment against John Baldi.
I recite the facts largely as summarized in my previous
See Doc. No. 142 at 1–3.
John and Catherine Baldi at
one time jointly owned land in Epsom, New Hampshire that abutted
property owned by Raymond and Beryl Dow.
In 1995, the Dows
orally agreed to transfer part of their land (the “24-Acre
Parcel”) to the Baldis in exchange for the Baldis’ agreement to
allow the Dows to cut trees on a portion of the Baldis’
The parties agreed to make the transfer by means of a
boundary line adjustment.
A plan depicting the proposed
boundary line adjustment was subsequently approved by the Epsom
Planning Board and filed in the Registry of Deeds on May 18,
Although no deed effecting the transfer was prepared at
that time, the Baldis thereafter paid all property taxes on the
24-Acre Parcel and treated it as their own in all respects.
Several years later, on November 2, 2004, Baldi recorded a
deed conveying his interest in the 24-Acre Parcel to his wife
for nominal consideration.
More than ten years later, on June
13, 2015, Baldi obtained a quitclaim deed from the Dows
purportedly transferring any interest the Dows had in the 24Acre Parcel to the Baldis as joint tenants.
Baldi has explained
that he obtained the deed to remove any uncertainty as to his
wife’s ownership of the 24-Acre Parcel.
Prior to the Dows’ 2015 deed, Catherine Baldi had discussed
selling the property with a New Hampshire nursery.
January 2017, she had arranged to sell the 24-Acre Parcel to a
And since 2004, she has paid the property
tax due on the 24-Acre Parcel.
I held a hearing in January 2017, during which I ordered
the parties to brief whether Baldi currently held an interest in
the 24-Acre Parcel.
After reviewing those briefs, I ruled that
Baldi had not acquired full title to the property through the
1995 boundary line adjustment.
See Doc. No. 142.
doctrine of estoppel by deed may have applied to Baldi’s 2004
deed to his wife, however, I directed the parties to brief that
Id. at 7.
New Hampshire recognizes the doctrine of estoppel by deed,
by which “[a] party who has executed a deed is thereby
estopped from denying not only the deed itself, but every fact
it recites and every covenant it contains.”
Foss v. Strachn, 42
N.H. 40, 41 (1860) (dictum); see also White v. Ford, 124 N.H.
452, 455 (1984) (per curiam); Fadili v. Deutsche Bank Nat. Trust
Co., 772 F.3d 951, 954 (1st Cir. 2014).
Where a grantor
covenants to convey greater title than he has, and later
acquires that title, the title passes to the grantee.
White, 124 N.H. at 455; Fletcher v. Chamberlin, 61 N.H. 438,
446, 491 (1881); Fadili, 772 F.3d at 954.
Estoppel by deed applies neatly to the facts of this case.
In the 2004 deed, Baldi conveyed his interest to the 24-Acre
Parcel to his wife, with warranty covenants.
See Doc. No. 133-
As explained in my previous order, however, Baldi did not
have full title to the 24-Acre parcel at that time.
No. 142 at 6–7.
Once Baldi acquired an interest as a joint
tenant pursuant to the Dows’ 2015 deed, his interest immediately
passed to his wife.
See White, 124 N.H. at 455; Fletcher, 61
N.H. at 446; Kimball v. Blaisdell, 5 N.H. 533, 535 (1831).
Thus, Baldi no longer has an interest in the 24-Acre Parcel.1
The Browns, as third-party, judgment creditors seeking an
interest in the 24-Acre Parcel through Baldi, are bound by the
The Browns press a number of unsuccessful arguments in an
attempt to show that estoppel by deed does not apply.
they argue that the doctrine only protects grantees who are
promised more than the grantor can actually convey.
143 at 4.
Because the Baldis had identical, nontransferable
estates in 2004, they contend, the doctrine does not apply.
This argument fails.
Baldi’s 2004 deed substantially
follows the statutory form of a warranty deed.
Rev. Stat. Ann. § 477:27 (2004) (amended 2006) with Doc. No.
By statute, therefore, the 2004 deed had “the force and
effect of a deed in fee simple” with warranty covenants.
Accordingly, Baldi promised to convey a fee simple
estate in the 24-Acre Parcel, which was a greater estate than he
That Baldi and his wife in fact had identical,
nontransferable estates in 2004 does not affect the analysis.
The Browns next assert that recognizing estoppel by deed in
this situation would conflict with two statutes: sections 477:15
estoppel. Cf. Kimball v. Blaisdell, 5 N.H. 533, 533–36 (1831).
In Kimball, a grantor conveyed title that he did not have. See
id. at 533. The court held that when he subsequently acquired
title, he was estopped from denying that the title passed to the
grantee. See id. at 535. The court also held that the
grantor’s creditor — who had extended an execution to cover the
relevant property — essentially sought title through the
grantor, and was accordingly estopped from denying the grantee’s
title. See id. at 535–36; see also 4 Tiffany Real Prop. § 1234
(3d ed. 1939, 2016 update); 31 C.J.S. Estoppel and Waiver § 61
(2017 update); United Oklahoma Bank v. Moss, 793 P.2d 1359, 1362
and 477:22 of the New Hampshire Revised Statutes.
143 at 3–4.
See Doc. No.
Section 477:15 provides that an oral conveyance can
transfer “an estate at will only,” and section 477:22 provides
that, where a grantor purports to convey an interest greater
than he lawfully can, the grantee receives “all the estate which
[the grantor] could lawfully convey.”
Applying estoppel by deed here would not contravene the
Pursuant to section 477:15, the
Baldis had mere estates at will until 2015, when the Dows
conveyed greater title to them through a written deed, the
validity of which the Browns have not contested.
It was the
Dows’ 2015 written deed, in conjunction with Baldi’s 2004
written deed, that eventually vested greater title in Catherine
The Dows’ 1995 oral conveyance did not have that effect.
Likewise, consistent with section 477:22, Baldi’s 2004 deed did
not give his wife title to the 24-Acre Parcel, as he could not
“lawfully convey” it at the time.
The warranty covenants in the
deed, however, operated to transfer title when Baldi acquired it
This normal application of estoppel by deed does not
conflict with section 477:22.
The Browns last contend that estoppel by deed requires
reliance by the grantee on the grantor’s representations.
Doc. No. 143 at 2.
According to the Browns, Catherine Baldi
could not have relied on Baldi’s 2004 deed because she knew or
should have known that he lacked the title he purported to
See id. at 5–7.
And even if knowledge cannot be
presumed, there is no evidence that Baldi’s wife actually relied
on the deed.
See id. at 5, 7.
Contrary to the Browns’ contention, Catherine Baldi’s
actual or constructive knowledge of the state of title would not
foreclose the application of estoppel by deed, at least where
after-acquired title is involved.
In White v. Ford, an uncle
purported to transfer real property to his nephew, even though
at the time a municipality held title to the property through a
tax collector’s deed.
See White, 124 N.H. at 454.
later purchased the property back from the town.
Supreme Court of New Hampshire, focusing on the covenants in the
uncle’s deed, affirmed the lower court’s ruling that the uncle’s
after-acquired title passed to his nephew.
See id. at 454–55.
It is fair to assume that the nephew in White had constructive
knowledge of the tax collector’s deed — and thereby that his
uncle lacked the title he purported to convey — yet the court
makes no mention of either notice or reliance.
In an older case, cited approvingly in White, see id. at
455, the court made explicit that actual or constructive
knowledge does not preclude estoppel by deed.
In Fletcher v.
Chamberlain, the defendant conveyed a mortgage deed to one
party, and subsequently conveyed a second mortgage deed to a
devisor of the plaintiff.
See Fletcher, 61 N.H. at 438–39.
second mortgage deed contained warranty covenants and did not
mention the first mortgage deed.
See id. at 439.
second mortgagee foreclosed on the property and took title, a
successor of the first mortgagee foreclosed on the property and
took legal title.
The successor eventually conveyed
the property back to the defendant.
Assuming, as the defendant claimed, that the second
mortgagee had actual knowledge of the first mortgage deed, see
id. at 439–40, the court ruled that title had passed to the
second mortgagee when the defendant reacquired title, see id. at
The court concluded that the second mortgagee’s knowledge
of the first mortgage “did not change the character of the
estate conveyed to him, or release the mortgagors from their
Id. at 447.
In an opinion responding to a motion
for rehearing, the court reiterated that the second mortgagee’s
actual knowledge did not preclude estoppel and that he retained
See id. at 480–81, 99; see also Fadili v. Deutsche Bank
Nat. Trust Co., 2014 DNH 048, 7 (quoting Fletcher for
proposition that constructive notice does not defeat warranty
covenants), aff’d, 772 F.3d 951 (1st Cir. 2014).
To the extent estoppel by deed requires actual reliance —
even if unreasonable, taking into account constructive knowledge
— the facts as proffered by Baldi suggest that his wife did rely
on the representations in his 2004 deed.
Prior even to the
Dows’ 2015 deed, Catherine Baldi discussed selling the property
with a New Hampshire nursery.
As of January 2017, she had
arranged to sell the 24-Acre Parcel to a prospective buyer.
Doc. No. 132–1 at 20 (affidavit of Gail Brown) (stating real
estate agent told her that purchase and sale agreement was in
place to sell Baldi property, including the 24-Acre Parcel).
Moreover, Catherine Baldi has paid the property tax due on the
24-Acre Parcel since 2004.
In their discussion of reliance, the Browns lean heavily on
Kirkpatrick v. Jones, 122 N.H. 438 (1982) (per curiam).
Kirkpatrick does not dictate a different result in this case.
In Kirkpatrick, the plaintiff sought to quiet title to property
she acquired by deed in 1946.
See Kirkpatrick, 122 N.H. at 439.
In 1961, she had conveyed a strip of land on her property to the
state for the construction of a highway.
The 1961 deed
described the strip as between certain property in the north and
certain property near a line in the south.
1946 deed, however, described the plaintiff’s property as
extending south beyond the line referenced in the 1961 deed.
The defendant acquired property south of plaintiff’s land
in 1974, claiming to have relied on the description in the 1961
deed and asserting title to property south of the line described
The court affirmed the lower court’s order to quiet title
in the plaintiff.
The court ruled that the 1961 deed, by its
own terms, “did not purport to set a southern boundary,” but
instead merely conveyed the strip of land.
Id. at 440.2
Accordingly, the deed could not have induced the defendant to
rely on it as a statement of boundaries.
Baldi’s 2004 deed purported to convey title to his wife.
is no equivalent mismatch between what Baldi’s deed purported to
do and any subsequent reliance.3
Having concluded that John Baldi does not have an interest
in the 24-Acre Parcel, I deny the Browns’ motion for a writ of
The court provided additional reasons to support its conclusion
that estoppel did not apply. See Kirkpatrick, 122 N.H. at 440.
It pointed out that the plaintiff had not deeded land to
defendant; had not represented that she had the title conveyed
in the 1961 deed; nor had any knowledge that defendant mistook
the boundary line. See id. Although the Browns focus on these
additional reasons, see Doc. No. 143 at 5, they do not
strengthen the Browns’ case. Baldi did deed an interest to his
wife; did represent that he had title to that interest; and
there is no evidence showing that Baldi knew his wife had a
mistaken impression as to title.
The Browns last emphasize that the application of estoppel by
deed is not necessary to give Catherine Baldi an interest in the
24-Acre Parcel; she has an interest in it pursuant to the Dows’
2015 deed. See Doc. No. 143 at 7. Although estoppel by deed is
not required to secure Catherine Baldi’s interest as a joint
tenant, application of the doctrine would give her a greater
interest than she currently has. Importantly, it would give her
the interest that Baldi covenanted to convey.
scire facias (Doc. No. 131).
Issuing a writ of scire facias or
a writ of execution would amount to an empty exercise,
potentially producing redundant litigation.
I also dissolve the
attachment granted on October 24, 2016.
United States District Judge
July 14, 2017
John Baldi, pro se
John Fagan, Esq.
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