PETER V. POOR & another [Note 1] vs. ASA COBB PAINE LOMBARD, THIRD, & others. [Note 2]

RUBIN, J. The plaintiffs brought this action pursuant to G. L. c. 185, § 26A, seeking to confirm without registration their title

Page 720

to a parcel of land in Truro containing 10.12 acres (locus). A citation issued ordering service by publication. No objections were filed by the return date, and the Land Court judge entered an order for decree confirming the plaintiffs' title to the locus. On the date that order issued, the defendants filed a motion to appear and answer late, which was granted, and they subsequently filed an answer that contained an objection to the plaintiffs' complaint. The defendants claim to be the heirs of Asa Cobb Paine, Jr. (Paine), and, as such, to hold title to part of the property abutting the westerly boundary of the locus (cove land), particularly a parcel known as the "Paine Parcel." [Note 3] They further claim that, as owners of the Paine Parcel, they have the benefit of an appurtenant profit à prendre to take sand from the northerly hill situated on the locus, and a right to use various roads and vehicle tracks over the locus. [Note 4] In his November, 2006, decision, the Land Court judge found that the defendants did not hold title to the Paine Parcel, and allowed the plaintiffs' motion to strike the defendants' appearance and objection. [Note 5] After denial in part of their motion to amend findings and their motion to reconsider that denial, the defendants appealed.

The defendants argue that the Land Court judge erred because his decision that they did not hold title to the Paine Parcel relied upon a finding that a lost, unrecorded deed had once existed. The premise of the defendants' claim against the plaintiffs is that Paine took undivided title to the Paine Parcel in 1863. A 1911 deed from Jacob Rich purports to convey to Anna J. DeChamp, among other things, the Paine Parcel. It is on this chain of title that the plaintiffs rely. There is, however, no recorded

Page 721

deed out from Paine, who died in 1909, to Jacob Rich. The Land Court judge inferred that Paine had deeded the Paine Parcel to Jacob Rich some time before 1909.

The slippery slope of inferring the existence of a lost, unrecorded deed may well be perilous, but the refusal to infer the existence of such a deed could also have grave consequences, and our courts have long found the practice proper. See, e.g., White v. Loring, 24 Pick. 319, 322-323 (1837). The defendants recognize this, but argue that a lost deed may only be inferred if the facts of adverse possession in the grantee (and, if relevant, the grantee's successors) are established. See Gayetty v. Bethune, 14 Mass. 49, 55 (1817) (stating that "it is adverse possession only, upon which a presumption of a grant can arise") (emphasis in original). In this case, the record owner of the Paine Parcel through the chain of title starting with the deed from Rich to DeChamp, and then to Marguerite F. DeChamp Cook, and then to Cook, as trustee for Francis Patrick, did not appear in this action to establish adverse possession.

Although a legal presumption of a "lost grant" is said to arise as a result of adverse possession, see Tinker v. Bessel, 213 Mass. 74, 76 (1912) ("Title by prescription or adverse possession rests upon the fiction of a lost grant"), that presumption (which is what is referred to in the Gayetty case) is distinct from the question implicated here: whether there was, in fact, an actual lost, unrecorded deed. The Supreme Judicial Court has treated a claim of an actual lost deed as distinct from one claiming adverse possession. See Ingalls v. Newhall, 139 Mass. 268, 269 (1885). Compare Coolidge v. Leonard, 8 Pick. 504, 509-510 (1829) (in making a claim based on adverse possession, a "party [is] allowed to plead a non-existing grant"). The two claims have been treated as distinct in other jurisdictions as well. See, e.g., Walker v. Walker, 273 Ala. 106, 108-109 (1961); Franzen v. Donichy, 9 Ill. 2d 382, 387-389 (1956); Smith v. Libby, 122 Me. 156, 158-159 (1922).

Since a lost, unrecorded deed may be inferred even in the absence of proof of adverse possession, the defendants' claim fails. There was no clear error in the judge's finding of fact that

Page 722

there was an unrecorded deed out from Paine into Rich. [Note 6] The Land Court judge's conclusion that the defendants do not have title in the Paine Parcel therefore must be affirmed.

The defendants' remaining contentions are insubstantial. After the defendants appeared and answered, the parties filed a stipulation providing that the order for judgment be vacated with respect to the defendants only. In his order, the Land Court judge vacated that stipulation and ordered that when judgment entered it should confirm the plaintiffs' title free of any claim asserted by the defendants.

The defendants now claim that this was error. First, the defendants argue that the judge lacked authority to vacate the stipulation which, they argue, was a binding contract between the parties. This argument, though, is based on a misreading of the stipulation. It was entered to protect the plaintiffs' rights with respect to third parties while the defendants' claims were tried. The stipulation did nothing more than agree to vacatur of the order as to the defendants, pending the conclusion of the proceedings or further action of the court. It did not purport to resolve conclusively the dispute between the parties (as the defendants' argument implies) or to limit the court's power to re-enter judgment for the plaintiffs. The Land Court judge's order could have provided that the stipulation was superseded rather than vacated, but there was nothing wrong with the words used.

Second, the defendants argue that, because this case proceeded to trial as a contested case under G. L. c. 185, § 43, the plaintiffs' title could only be confirmed by an order containing findings of fact and conclusions of law as to that title. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). But the Land Court judge's conclusion (contained in a written decision that complied with rule 52[a]) that the defendants do not hold title to the Paine Parcel, the conclusion that we affirm, means that the defendants lacked whatever standing they otherwise might have had to challenge the confirmation of the plaintiffs' title. See, e.g., Harvey v. Inhabitants of Sandwich, 256 Mass. 379, 383 (1926). [Note 7]

Page 723

No further findings with respect to that title were required. [Note 8]

The judgment of the Land Court is affirmed.

Judgment affirmed.