BENEDICT GERMAINE, KATHLEEN M. MARSELLA, and KATHLEEN A. MARSELLA v. ERIC BLEICKEN and JOHN GOMEZ, JR. ERIC BLEICKEN, Plaintiff in Counterclaim v. BENEDICT GERMAINE, KATHLEEN M. MARSELLA, KATHLEEN A. MARSELLA, ALFRED A. MARSELLA, LOUIS DOMINGOS, COLLEEN DOMINGOS, RONALD R. DYER, URSULA L. DYER, and RAYMOND C. LOUGHLIN, Defendants in Counterclaim

On February 7, 2003, Benedict Germaine (“Germaine”), Katherine M. Marcella, and Kathleen A. Marcella (“the Marcellas”)(collectively, “plaintiffs”), filed a complaint pursuant to G.L. c. 231 against defendants Eric Bleicken (“Bleicken”) and John Gomez, Jr. (collectively, “defendants”), seeking to establish title to two parcels of land located in Plainville. Defendants were each served properly with a summons and copy of the complaint, but neither filed an answer or other responsive pleading within the time allowed for the filing thereof. Both were defaulted by the court (Scheier, J.) pursuant to Mass. R. Civ. P. 55(a) and the court entered Judgment on December 16, 2003, declaring Germaine to be the holder of title to Lot 37-A and the Marcellas to be the holders of title to Lot 37 (collectively “the property”), free from any claims of the defendants, their heirs, devisees or legal representatives, and ruling also that plaintiffs had established their respective titles by adverse possession against the defendants. Gomez, who arguably had an interest in the property through Lois Weeman, later executed a deed conveying his interest in the property to the plaintiffs but Bleicken, though requested to do so, declined.

On July 13, 2004, Bleicken filed a motion for relief from judgment, together with a memorandum in support and affidavits by Bleicken and his counsel. In his motion, Bleicken claimed that he is the owner of an undivided one-quarter interest in the property, having inherited it from his deceased mother, Ellene Weeman Bleicken. He further contended, citing Mass. R. Civ. P. 60, that the judgment must be set aside for reasons of mistake, inadvertence, surprise or excusable neglect. In addition, he averred that the plaintiffs were guilty of fraud, misrepresentation and other misconduct, and that such conduct required that he be granted relief in the form of an order setting aside the Judgment. [Note 1]

Oppositions to the motion were filed by the plaintiffs and by Raymond Loughlin, the third party purchaser of Lot 37-A. The motion was argued and taken under advisement on August 10, 2004. In an order dated September 2, 2004, this court (Trombly, J.) denied Bleicken’s motion, finding that he had not met his burden of justifying his failure to file a responsive pleading, that he had not proven that plaintiffs and their counsel were guilty of acts which would justify relief under Mass. R. Civ. P. 60(b)(3), and that he had not demonstrated, in any event, that he had a meritorious defense to plaintiffs’ adverse possession or ouster claims.

Bleicken took an appeal from the September 2, 2004 order denying his motion, and his appeal was entered in the Appeals Court as Case No. 2004-P-1652 on December 13, 2004. The Appeals Court entered a Memorandum and Order Pursuant to Rule 1:28 on February 1, 2006, in which it reversed the order denying Bleicken’s motion for relief from judgment and ordered this court to enter an order allowing the motion as to so much of the judgment as relates to lots 37, 37B, and 37C. The Appeals Court also ordered that further proceedings be conducted in the Land Court on Loughlin’s claims that he was a bona fide purchaser of Lot 37A and that he had no knowledge of any fraudulent acts which may have been committed by Germaine or the Marsellas in procuring the judgment. The Appeals Court then remanded the matter to this court for further proceedings consistent with its memorandum and order.

Upon receipt of the Appeals Court order, this court scheduled a status conference to be held on May 10, 2006, at which counsel and the court could discuss what further proceedings would be necessary to get the case back on track. The conference was held on June 15, 2006, having been continued at the request of the parties. Also on that date, Bleicken filed an Answer and Counterclaim. Named as Defendants in Counterclaim therein were Alfred A. Marsella, one of the grantees along with the plaintiffs in a deed of the property from Marilyn Gomez, and Louis Domingos, Jr., Colleen Domingos, Ronald R. Dyer, Ursula L. Dyer, and Raymond C. Loughlin, the present owners of the three lots known as Lots 37A, 37B, and 37C.

An Answer and Counterclaim to Bleicken’s pleading was filed by Ronald R. Dyer and Ursula L. Dyer on July 17, 2006. Plaintiffs and Alfred A. Marsella filed a motion on July 18, 2007, seeking to dismiss Bleicken’s counterclaims numbered 1, 2, 7 and 8. Bleicken filed an opposition to that motion and a memorandum in support of his opposition on August 2, 2006. Bleicken also filed an answer to the Dyer counterclaim on August 14, 2006. Louis Domingos, Jr. and Colleen Domingos filed an answer and counterclaim on September 11, 2006, to which Bleicken responded with an answer on September 27, 2006. On January 22, 2007, Raymond C. Loughlin filed a motion, together with a memorandum in support thereof, seeking dismissal of Bleicken’s counterclaim and reinstatement of judgment in his favor.

Loughlin’s motion to dismiss counterclaim and for reinstatement of the judgment were argued and taken under advisement on March 23, 2007. The motion of the plaintiffs and Alfred A. Marsella to dismiss Bleicken’s counterclaims numbered 1, 2, 7 and 8 was argued and taken under advisement on April 3, 2007. At the hearing on April 3, counsel and the court conferred about the possibility of resolving the controversy through mediation and agreed to submit the matter to the Alternative Dispute Resolution program sponsored by the Real Estate Bar Association (“REBA”), formerly known as the Massachusetts Conveyancers Association. The court referred the matter to REBA on April 4, 2007. REBA reported to this court on or about June 27, 2007 that the parties had elected to participate in the ADR program and that mediation was scheduled to begin on August 23, 2007. Unfortunately, on July 18, 2007, this court was informed by REBA that the scheduled August 23rd session had been cancelled because “one of the parties decided they did not want to participate”. Thus the matter, and specifically the motions argued in March and April, which had been delayed pending possible settlement of the controversy, again came before the court.

On September 21, 2007, this court (Trombly, J.) entered an order denying plaintiffs’ motion to dismiss counterclaims 1, 2, 7, and 8 and denying also the motion of Raymond C. Loughlin to dismiss counterclaim and reinstate judgment in his favor.

On July 7, 2008, Louis Domingos, Jr. and Colleen Domingos filed a motion for summary judgment, together with a statement of undisputed facts, a memorandum in support of their motion, an affidavit by Mr. Domingos, an affidavit by their counsel, and an appendix in support of their motion and affidavit. The motion was scheduled for argument on October 10, 2008. On August 22, 2008, Defendants Ronald R. Dyer and Ursula L. Dyer filed a motion for summary judgment together with a memorandum in support thereof and a supplemental appendix. Defendant Eric Bleicken filed his opposition to the motions for summary judgment on September 23, 2008. The Domingos replied to Bleicken’s opposition on September 30, 2009. The motions were argued and taken under advisement on October 10, 2008. [Note 2]

In their motion for summary judgment, the Domingos contend that they have superior title to Lot 37-C as against Bleicken, assert their affirmative defenses of adverse possession, laches and estoppel, and oppose Bleicken’s counterclaims seeking partition and to quiet title. In his opposition to the Domingos motion, Bleicken contends that he is the owner of a partial interest (one quarter) as co-tenant in all of the land which is the subject of this action, including both the land described in the original complaint and the Domingos, Loughlin and Dyer lots. He claims this interest through what he describes as a “complex chain of title involving both deeds and Probate bequests...” and contends that the last link in that chain is a bequest directly to him from the estate of his deceased mother, Ellene (Weeman) Bleicken, of her one-quarter interest in the property. He further contends that the parties from whom the Domingos and Dyers purchased their parcels, Germaine and the Marsellas, knew their title was suspect because they later brought this action seeking to clear title only to the parcel of land retained by them after selling the other lots to the Domingos and Dyers. [Note 3]

After reviewing the lengthy record before the Court, I find that the following material facts are not in dispute.

The land which is the subject of this action was at one time in the early twentieth century owned by William H. Follett (“Follett”). Upon Follett’s death, his will, admitted for probate in 1918, provided that a life estate in the property went to Alfred Weeman (“Weeman”). The will further provided that the remainder interest go to those children of Weeman “living at his death”. Weeman’s three daughters, Amie L. Weeman (“Amie”), Lois M. Weeman (“Lois”), and Ellene Weeman (“Ellene”), conveyed their interest to their father by virtue of a deed dated June 8, 1926 and recorded on October 18, 1930, at which time Weeman held fee title to the property (both the life estate and remainder interests).

Alfred Weeman died intestate on or about March 27, 1955, at which time he was survived by his three daughters and his second wife, Edith Weeman (“Edith”). Amie was Weeman’s eldest daughter from his first marriage. Ellene and Lois were Weeman’s daughters with Edith. A voluntary administration petition was filed by his daughter, Lois, in Plymouth County Probate Court but Alfred Weeman’s estate was not otherwise probated. Upon Weeman’s death, half of his interest in the property passed by intestacy to his three daughters, who shared that interest equally; the other half interest passed to Edith, his widow. It is argued that neither the daughters nor the widow were aware that any interest in the Weeman property passed to Edith upon the death of her husband. In any event, the daughters were aware that they had inherited interests in the property, as evidenced by the fact that Lois and Ellene executed separate deeds conveying their interests in the property to their sister Amie in 1956, one year after the death of their father. Both of these deeds set forth the chains of title under which they claim, specifically referring to the deed into Follett in 1861, the will of Follett executed in 1908, and the voluntary administration of their father’s estate in Plymouth Probate Court. They do not state that the deeds conveyed only partial interests.

Ellene T. Bleicken of Milan, Coos County, New Hampshire, the mother of Eric Bleicken and the daughter of Edith Weeman, died in 1991. Her last will and testament has apparently been lost and was not filed with and/or allowed by the New Hampshire Probate Court. However, a copy of her will, dated 1985 and produced and attested to by her son, Eric Bleicken, makes no reference to any property located in Massachusetts, although it provides for disposition of personal and real property owned by her in New Hampshire. The will notes that she had three sons, but only Eric, the residuary legatee named in the will, is a party to this action.

Lois Weeman Lang, sister of Amie and Ellene and the aunt of Eric Bleicken, died in Massachusetts in 2000. Her last will and testament makes no mention of real property in Massachusetts and her voluntary probate proceedings in Plymouth Probate Court refer only to a small bank account.

Amie Weeman Bishop, the third sister and the grantee in the deeds from her sisters Lois and Ellene, died in 1958. Her interest in the Weeman property, which she had acquired in 1956, passed to her surviving husband, Harold Bishop, who was also named as Executor under her will. At that time, both Harold Bishop and Marilyn Gomez, Amie’s daughter, believed that she was the sole owner of the property at the time of her death. Harold Bishop conveyed the property to Marilyn Gomez, in 1969. She, in turn, believing that the entire fee now resided in her, conveyed the Weeman Property to Alfred A. Marsella and Benedict Germaine on July 31, 1980 by deed recorded at the Norfolk County Registry of Deeds in book 5759, Page 262. Marsella and Germaine then set about to develop the property.

Marsella and Germaine proceeded to subdivide the Weeman Property into four lots, numbered Lot 37, Lot 37-A, Lot 37-B, and Lot 37-C. The new configuration is as shown on a plan entitled “Plan of Land in Plainville, Massachusetts, drawn for Germain Marsella, June 1980, W. T. Whelan Eng. Co.,” said plan being recorded at the Norfolk County Registry of Deeds as Plan No. 149 in Plan Book 287. A reduced copy of the plan is attached hereto. The lots were ultimately sold by Germaine and/or Marsella, as follows:

Lot 37 to Kathleen A. Marsella and Kathleen M. Marsella,

Lot 37-A to Defendant in Counterclaim Raymond C. Laughlin in 2004,

Lot 37-B to Defendants in Counterclaim Ronard R. Dyer and Ursula Dyer in 1983, and

Lot 37-C, which was sold to and developed by Domingos in 1982, as described below.

Adverse Possession.

Between 1980 and 1983, Marsella and Germaine, in addition to subdividing the property into four lots, cleared and excavated the property, caused engineering and survey work to be performed thereon, sold individual lots, and began construction on a portion of the property.

Louis Domingos, Jr. and his wife, Colleen Domingos, purchased Lot 37-C from Marsella and Germaine by deed dated April 23, 1982. They paid $18,000 for the vacant lot with the intention of building a home thereon. Of the $18,000 purchase price, approximately $9,000 was paid to Alfred A. Marsella from their own funds. At the same time, the Domingos granted a mortgage of their newly acquired property to Benedict J. Germaine and Anna Germaine for the remaining portion of the purchase price. The mortgage was paid in full in February, 1984.

At the time the Domingos purchased Lot 37-C in 1982, they were not aware of any title issues concerning their property or that any party other than themselves claimed an interest in it. They were issued a title insurance policy on their property in 1984, at which time they became aware of a title issue arising out of the lack of a formal probate proceeding on the estate of Alfred Weeman. They did not become aware of Bleicken’s claimed interest in their property until 2006, when they were served with notice of his counterclaim in the present litigation.

When the Domingos purchased Lot 37-C in 1982, their property was undeveloped and contained many trees, boulders and rocks. It had no existing utilities or access to water. It had not been leveled or graded for building. Between 1982 and 1984, they caused the property to be cleared, graded, prepared for construction, and developed by the construction thereon of a single-family home, an attached garage, a septic system and well, plus landscaping and a driveway. The clearing was carried on by both the Domingos themselves as well as by hired contractors. The costs to the Domingos were impressive; the cost of clearing and developing the property between 1982 and 1984 totaled more than $63,000 while the costs expended to maintain and improve their home and property since 1984 amount to over $87,000.

The Domingos moved into the house in 1984 and still reside there with their family. They have paid real estate taxes totaling more than $64,000 between 1982 and 2007. They have taken out mortgages and loans to pay for improvements and maintenance, and currently are subject to a mortgage granted by them to RBS Citizens, N.A. As far as they are concerned, they are the sole owners of Lot 37-C, subject only to the RBS Citizens mortgage.

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Ronald R. Dyer and Ursula L. Dyer, record owners of land known as Lot 37-B and having a street address of Lot 37-B Fales Road, stand in substantially the same position as the Domingos, their next door neighbors. [Note 4] Like their neighbors, they purchased a vacant lot from Germaine and Marsella in 1983 for $18,000. At the time, they obtained a title insurance policy which, they assumed, would cover them in the event a title defect was ever disclosed. They did not have any knowledge that Bleicken was claiming, or would later claim, to own an interest in their property, and first became aware of such a claim when Bleicken’s counterclaim was served upon them in 2006.

After purchasing Lot 37-B in 1983, the Dyers cleared the land in order that a house could be built on it. The lot was excavated and a foundation poured almost immediately thereafter. They then paid $54,840 to have a single family home built, moving into the house in August, 1983. The drinking water well and finished plumbing were installed prior to their moving in. Since that time, the Dyers have continuously maintained and improved their home and have spent over $23,000 in that regard. In addition, they have paid real estate taxes to the Town of Plainville totaling $65,766.77. They assert they are the sole owners of Lot 37-B and that they too were not aware of any claim by Mr. Bleicken until 2006.

Both the Dyers and the Domingos aver, and this Court finds, that neither Bleicken nor his attorney ever communicated with them prior to naming and serving them in the counterclaim in 2006. [Note 5] In fact, as noted above, the action as originally filed by Germaine and Marsella in 2003, concerned only the land retained by them. The Domingo and Dyer properties became involved only when Bleicken filed his answer and counterclaim in 2006 claiming an interest in all of the property which the original plaintiffs had purchased from Marilyn B. Gomez in 1980.

In reply to Bleicken’s answer and counterclaim, the defendants-in-counterclaim filed their own answers and counterclaims asserting, in part, the doctrines and legal theories of estoppel, laches, and adverse possession as affirmative defenses, as well as asserting affirmative claims to ownership of their respective properties. Bleicken subsequently filed an answer to their counterclaims, denying the relief requested by the Domingos and Dyers.

In his opposition to the Domingos and Dyer Motions for Summary Judgment, Bleicken admits many of the facts alleged by them, but claims that he is the owner of a one quarter undivided interest in their lots, having inherited that interest from his late mother, Ellene Weeman Bleicken, a daughter of Alfred Weeman and Edith Weeman. According to Bleicken, when Alfred Weeman died in 1955, Edith Weeman (Alfred’s widow and Bleicken’s grandmother) inherited an interest in the property under the laws of intestacy. Bleicken admits that Alfred’s three daughters did, indeed, inherit fractional interests in the four lots in Plainville, but argues that they did not inherit the entire interest. Rather, he avers that his mother, Ellene, inherited a fractional interest upon the death of her mother, Edith, and that Ellene’s interest was devised to him when she died in 1991. He also denies that Dyer or Domingos have established title by either adverse possession or by ouster.

In their response to Bleicken’s opposition, Domingos and Dyers claim that Bleicken is attempting to muddy up the waters and further delay this action by creating the appearance of disputed issues of material fact where none exist. They allege that Bleicken included hearsay and other inadmissable evidence in his memoranda, and that this should not be considered by the court in ruling on the motions for summary judgment. “When a properly supported summary judgment motion has been made, ‘an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response...must set forth specific facts showing that there is a genuine issue for trial.’” See Pepe v. DeSanctis, 15 LCR 330 , 331 (2007) Misc. Case No. 309219)(Long, J.).(emphasis in original.). Mass. R. Civ. P. 56(e). The “evidence” upon which Bleicken relies includes an excerpt from an attorney’s letter concerning a title insurance policy and other unauthenticated documents which are not admissible and cannot be used to create a factual dispute.

Bleicken also attempts to create factual disputes by filing copies of permits issued to Domingos and Dyers during the constructions of their homes. He contends that the dates of these permits have an effect on affidavits submitted by those parties concerning the dates on which they claim to have purchased their lots and begun construction of their homes. The court has reviewed the documents and finds they have no effect on the dates and times set forth by Dyer and Domingo in their affidavits. It is clear from the record that both couples purchased their lots in 1982 and 1983 and began construction immediately. The dates on the documents submitted, one of which is a permit dated 1984 allowing electrical work on the property and in the dwelling, do not prove that the clearing and construction did not begin until that year. In fact, it is far more probable that the actions allowed under the various permits and certificates of occupancy in question were part of the construction process. For example, a permit to allow electrical work in a structure would not be necessary until after the land was cleared and the structure erected.

Bleicken contests Domingos’ and Dyers’ statements that they were unaware of his claim to be a part-owner of their lots, and claims they knew, or at least should have known, that their title was suspect. He further claims that their knowledge, or lack thereof, has an effect on their adverse possession claims against him. This court disagrees. The “inner workings” of the mind are irrelevant for the purpose of adverse possession. It makes no difference that neither the Domingos or the Dyers had an inkling before they were served with the counterclaim in 2006 that Bleicken was claiming an interest in their property. The important fact is that both families purchased vacant lots, cleared them, excavated, poured foundations, constructed homes thereon, and have resided therein for well over twenty years. Their use was open to the world, and they were acting openly as the true owners of their parcels. In short, their use was open, continuous, exclusive, adverse and notorious. Clearly, they have complied with the required elements necessary to establish title by adverse possession. See Lawrence v. Town of Concord, 439 Mass. 416 (2003); Wiggin v. Kimball, No. 07-P-669 2008 WL 2695898 at *1-2 Mass. App. Ct. July 11, 2008).

Ouster.

Bleicken also raises the issue of ouster, contending that because he is a co-tenant of the land at issue in this case, it is not enough for the plaintiffs, Loughlin, Dyer and Domingo to perform sufficient activities on the land to establish adverse possession. He argues that their acts must also be sufficient to lead to the conclusion that he has been ousted from the property.

“Ouster”, as defined in Black’s Law Dictionary, abridged sixth edition, 1991, is the “Notorious and unequivocal act by which one cotenant deprives another of right to common and equal possession and enjoyment of property.” “[A]n ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseisin of his co-tenant by a tenant in common.” Bellis v. Bellis, 122 Mass. 414 , 415 (1877). A party must demonstrate ouster in addition to establishing all of the usual elements for adverse possession. In Allen v. Batchelder, 17 Mass. App. Ct. 453 , further appellate review denied, 391 Mass. 1104 (1984), the court acknowledged that the extra ingredient, ouster, is necessary to establish adverse possession against a cotenant, but found that ouster could be inferred from long periods of exclusive possession. As stated in Allen, it is “well settled that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a [fact finder] may and ought to infer an actual ouster.” Allen, 17 Mass. App. Ct. at 456.

In the present case, the actions of the Dyers and Domingos were most certainly not carried on with the permission of Mr. Bleicken. In fact, their acts of clearing and excavating their land, constructing, maintaining and residing in homes they constructed on it, paying real estate taxes and mortgages, and similar acts constitute a “series of acts [which] indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the rights of the other tenants.” Lefavour v. Homan, 85 Mass. (3 Allen) 354, 355 (1862). Based on all the above facts, there can be no doubt that the Domingos and Dyers have established title to their lots by adverse possession and have ousted Mr. Bleicken from it.

Estoppel by Deed

Bleicken contends that the deeds under which all of the plaintiffs, including the Dyers and Dominos, claim title did not convey a full fee interest in the property and that he is not precluded by the doctrine of estoppel by deed from claiming an interest in the disputed property. Specifically at issue are the deeds from Alfred Weeman’s three daughters to him in 1926, the deeds from Lois and Ellene to Amie in 1956, and the deed from Marilyn Gomez to Marsella and Germaine in 1980. Bleicken argues that those instruments and the facts of this case, do not allow an estoppel by deed, as claimed by plaintiffs. He contends that the deeds from Lois and Ellene to Amie in 1956 conveyed only their partial interests in the property and could not convey the interest which had passed to Edith upon the death of Alfred Weeman in 1955. The question then becomes whether the fact that the respective grantors may have mistakenly believed that they owned the full interest in the property, when in fact they did not, effects what was actually conveyed by those instruments.

Estoppel by deed is a doctrine whereby “[a] grantor in a warranty deed who does not have title at the time of the conveyance but who subsequently acquires title is estopped from denying that he (or she) had title at the time of the transfer and such after-acquired title inures to the benefit of the grantee or his successors.” Blacks Law Dictionary, Abridged Sixth Edition, 1991. In the instant case, it is contended that two of the daughters of Alfred Weeman, Lois and Ellene, purported to convey their complete fee interest in the property to their sister, Amie, when, in fact, the sisters’ owned only a combined 50% interest, the other 50% having passed by intestacy to Alfred’s widow upon his death. It is further argued that they and their successors, particularly Bleicken, should be estopped from stepping forward at this late date to claim an interest in the property.

It is to be noted in the present case that the deeds in 1956 from Ellene and Lois to their sister, Amie, do not purport to convey a partial interest in the Weeman property. Rather, they purport to convey to Amie the entire fee interest and even contain releases of curtesy from the respective spouses of the grantors. Plaintiffs, including Dyer and Domingos, contend that the successors in interest to Ellene and Lois, and Bleicken in particular, cannot now contend that the deeds conveyed only a partial interest. They further assert that Bleicken, having taken his interest from the estate of Ellene, is similarly precluded from asserting that the deeds from his mother and aunt did not convey all that it appeared to convey. Bleicken disagrees, claiming that the doctrine of estoppel by deed cannot now be applied because all of the grantors in those deeds are deceased, making it impossible to determine what their intent was at the time they executed the deeds. I disagree, ruling that the doctrine of estoppel by deed applies to the fact situation present in this case. “It appeals to reason and a sense of what is equitable that, when a person manifests an intention to transfer title to property, an after-acquired ownership of that property will make good the imperfection of the original conveyance.” Zayka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992)(emphasis added). In Zayka, as in the present case, the claim against the title was being made by someone who based his title on direct descent by blood from the grantors. The Court in Zayka found it even more compelling, for that reason, to apply the doctrine of estoppel. I agree and rule that Bleicken cannot contradict or disavow at this point in time a deed whereby his mother, the source of his purported interest in the subject property, conveyed away her interest therein.

It is also an important consideration that the Weeman property was not referred to in the estates or wills of either Ellene or Lois. Ellene’s will, or at least the copy produced and attested to by Bleicken, made several specific bequests to various relatives and charities but did not specifically mention any interest in the Weeman property. Any interest Bleicken might have received from his mother’s estate came to him through the residuary clause of a will which disposed only of real property in New Hampshire.

In summation, the doctrine of estoppel by deed precludes Bleicken from contesting the l956 deeds from his mother and aunt to Amie, and also precludes him from contesting the deed from Harold Bishop, the husband of Amie Bishop and Executor of her estate, to Marilyn Gomez. It is of no moment that the grantors in the deeds at issue are deceased, the aforementioned facts providing sufficient evidence that all of the grantors intended by those deeds to convey the entire fee interest, and not just a partial interest. The fact that Ellene and Lois may not have owned the interest they conveyed to Amie in 1956 is not fatal because they eventually obtained that interest through the estate of their mother, Edith Weeman, at which time the doctrine of estoppel by deed became operative.

Laches

Dyer and Domingos also contend that Bleicken should not be allowed to prevail in this litigation because he has been guilty of laches. Laches is a legal doctrine holding that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. It has been described as a method of defending against “legal ambush” and as “an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant.” Yetman v. Cambridge, 7 Mass. App. Ct. 700 , 707 (1979). “Laches is not synonymous with mere delay; it commonly implies also some form of prejudice or disadvantage to the defendant.” Westhampton Reservoir Rec. Corp. V. Hodder, 307 Mass. 288 , 291 (1940). Knowledge, unreasonable delay, and change of position are essential elements of laches, a doctrine based upon the maxim that equity aids the vigilant and not those who slumber on their rights. Laches is an affirmative defense, traditionally available in equity but not at law. J. W. Smith & H. B. Zobel, Rules Practice, s. 8.17 (1981). It is commonly employed as a “shield” rather than as a “sword”. Such is the case here.

In the present case, Domingos and Dyers purchased their parcels in 1982 and 1983, cleared the land, constructed residences thereon, and lived in them with their families for well over twenty years. They contend that even if Bleicken, arguendo, does have a valid claim to hold a partial record title to the parcels, he is nevertheless guilty of laches because he waited far too long before asserting his claim of ownership, to their detriment. Evidence indicates that Bleicken first knew that he might have a claim to partial ownership of any or all of the four lots some time in 2003, at the latest, when this case was first filed. He did not know that his mother might have an interest in the property until early 2003, several years after her death, and he first viewed the Weeman property later that same year, at which time he observed both the Dyer and Domingos properties with houses standing thereon. He stated at a deposition that the houses had obviously been standing on the lots for “a substantial period of time”. However, the record indicates that the first time Bleicken notified Dyer or Domingos of his claim to their properties was when he served them with his counterclaim over three years later, in 2006. During the period between 2003 and 2006, Domingos refinanced his mortgage and both Dyer and Domingos continued to expend funds to maintain their properties and pay real estate taxes. Clearly, Bleicken’s delay in notifying Dyer and Domingos of his potential claim prejudiced them. See Chiuccariello v. Building Com’r of Boston, 29 Mass. App. Ct. 482 , 487-88 (1990). I conclude that the actions or, more correctly, the inaction of Bleicken constitutes a classic case of laches and bar his claim of any interest in the Dyer and Domingos properties.

CONCLUSION

For all of the above reasons, I find and rule that Bleicken has no claim to title or other interest in the properties owned by Dyer and Domingos. He is barred from making any such claims by the doctrines of laches and estoppel by deed. In addition, the Dyers and Domingos have established their title as against Bleicken by adverse possession, coupled with ouster. The Motions for Summary Judgment of Defendants-in-Counterclaim Louis Domingos, Colleen Domingos, Ronald R. Dyer and Ursula L. Dyer and ALLOWED. The Court will defer entry of Judgment on the case until after it has ruled on Loughlin’s Motion for Summary Judgment, which was filed after the Domingos and Dyer motions had been argued and taken under advisement. This motion will be scheduled for hearing in the near future.

Charles W. Trombly, Jr.

Justice

Dated: April 15, 2009