These cases, consolidated for trial, involve a parcel of land in Yarmouth located on the easterly side of West Yarmouth Road, north of West Rock Road. In Miscellaneous Case No. 348141, the Plaintiff Laurie Snowden-Lebel (Lebel) claims that she, as trustee of the Heritage Research Realty Trust, has an interest in parcels shown as Lot 1 and Lot 2 on a plan recorded in Plan Book 466, Page 75 of the Barnstable County Registry of Deeds (Registry) (respectively, Lebels Lot 1 and Lebels Lot 2). (All recording references are to the Registry, if not otherwise indicated.)
In Registration Case No. 43317, the Town of Yarmouth (Town) petitioned this court for registration and confirmation of title, pursuant to G.L. c. 185, of a parcel shown as Parcel 1 [Note 1] on a plan entitled Land Court Petition Plan of Land in Yarmouth Mass., dated July 23, 1996, later revised April 2, 1999 (Parcel 1). Parcel 1 encompasses the entirety of Lebels Lot 1and a portion of Lebels Lot 2 that is approximately 45 feet wide and 270 feet deep. The disposition of both cases thus depends upon resolving the parties conflicting claims of interest with respect to Parcel 1.
In its complaint for registration, the Town claims to derive its title to Parcel 1 from this courts final decree in Tax Lien Case No. 19367, dated November 27, 1941, in which the court ordered all rights of redemption under a tax deed dated August 5, 1938 and recorded in Book 542, Page 91 and 92 forever foreclosed and barred. Notice of the decree was recorded in Book 587, Page 289 on December 1, 1941.
Lebel filed a miscellaneous action complaint on May 29, 2007. She filed this complaint after the court, exercising its discretion, denied her request to bring a counterclaim in the Towns registration proceeding, see Mass. R. Civ. P. 13(a), last sentence. The court denied leave to file the counterclaim in light of the lateness of the reques; the unfairness of having the cost and burden of preparing the registration plan, title, and other submissions fall disproportionately on the Town; and in reliance on counsels stipulation that the only true dispute to be resolved was the title question as between Lebel and the Town, which took away the need for an in rem adjudication on Lebels assertion of title.
In her complaint, Lebel challenged the title set up by the Town in its petition for registration and set up her contrary claim, seeking a declaratory judgment invalidating the underlying tax taking [Note 2] and seeking a declaration as to the parties rights, status and duties pursuant to M.G.L.A. c. 231A. She claims that the Town has failed to meet its burden to prove title and locus of the parcel for which registration is sought, and seeks a determination of title in her.
Lebel claims title to all or a portion of Parcel 1 by advancing three distinct arguments. Lebel first claims that the Towns title is void because the foreclosure proceedings of 1941 were fatally flawed due to a lack of adequate notice to the then owners of the property. She claims to have acquired the interests of those owners, their heirs or assigns, through various deeds in the record, and seeks to have the court determine that the foreclosure is invalid. Second and alternatively, she claims that even if the foreclosure is valid, the legal description of the land acquired by the Town in the foreclosure proceedings does not include Lebel Lot 1 or Lebel Lot 2, or any portions of them, but rather includes land situated somewhere north of Parcel 1. Third, Lebel claims that the Town intended to release any interest it may have held in Parcel 1 when it executed and recorded an instrument of redemption in 1942.
I tried these cases in Boston on June 12 and 13, 2008. The parties mutually agreed to have Karen V. Smith sworn to transcribe the testimony at trial. The following witnesses testified: Lebel, Edward DeWitt, III (Land Court Title Examiner), Robert E. Garcia (Professional Land Surveyor, former Surveyor for the Town of Yarmouth) James H. Quirk, Jr. (attorney retained by Lebel as an expert in title matters) and Arne Ojala (Professional Land Surveyor retained by Lebel). Ninety-two exhibits were entered into evidence and are incorporated into this decision for the purpose of appeal, if any. Following the taking of evidence, I invited both parties to submit memoranda of law, proposed findings of fact and proposed rulings of law, which they did. Both parties then made closing arguments, and I took the cases under advisement.
Considering all of the testimony, exhibits and other evidence properly introduced at trial, and the reasonable inferences I draw therefrom, and having in mind as well the pleadings, memoranda and arguments of counsel, I find and rule as follows:
I find and rule that the foreclosure decree issued in Tax Lien Case No. 19367 is not fatally flawed as Lebel argues and I therefore rule that it stands as entered in 1941. I also find and rule that the Instrument of Redemption dated December 8, 1942 and recorded in Book 598, Page 393 has no effect on the decree of foreclosure (See Trial Ex. 50). Further, I find and rule that the property acquired by the Town is that which is shown as Parcel 1 on the Towns petition plan, and therefore rule that the Town has proven its title to Parcel 1 by a preponderance of the evidence. I grant the Towns petition in Registration Case No. 43317 as it pertains to Parcel 1.
I. Tax Lien Case No. 19367
When applying the constitutional standard of due process to the foreclosure of redemption rights following a tax taking or sale, there is no doubt the landowner and other interested parties are entitled to notice which is reasonably calculated to apprise them of the pending action so that they may have an opportunity to defend their interest. Andover v. State Financial Services, Inc., 432 Mass. 571 , 574 (2000). When interested parties do not receive adequate notice of a pending foreclosure, it is within Land Court judges discretion to vacate the decree of foreclosure on the grounds of a due process violation. Sharon v. Kafka, 18 Mass. App. Ct. 541 , 543 (1984). Parties purporting to be in interest are generally barred from petitioning the court to vacate the foreclosure unless they do so within one year of the final decree of foreclosure or within one year of September 1, 1945, whichever comes later. G.L. c. 60, §69(a). The strict one-year limitation on redemption, however, is not applicable in cases where a due process violation clearly has occurred, but that is not to say that no time limitation exists. Brewster v. Sherwood Forest Realty, Inc., 56 Mass. App. Ct. 905 (2002).
In determining what limitation should be imposed on a party claiming to have been deprived of due process in a government taking of property (such as a tax taking), I first consider the legislative intent of the statute that authorizes the taking. Sharon v. Kafka, 18 Mass. App. Ct. 541 , 543 (1984). It is proper to consider the title of the statute when determining legislative intent. Id., citing Silverman v. Wedge, 339 Mass. 244 , 245 (1959). The title of the enactment which resulted in G.L. c. 60, §69(a) is An Act relative to the conclusiveness of decrees foreclosing tax titles, clearly stating the legislative purpose and public policy in favor of an efficient and final determination of title to land. See Sharon v. Kafka, at 543. A contrary interpretation of the legislative intent runs afoul of the plain meaning of the statutes title and creates unfair prejudice against municipalities, as their burden of showing adherence to proper foreclosure procedure increases with records becoming lost or destroyed over time. Lancaster v. Foley, 15 Mass. App. Ct. 967 , 968 (1983).
I therefore must weigh the competing interests of a public policy which favors a certain and final determination of title following a decree of foreclosure against an individuals interest in due process before losing property to a government taking. There is room for a just accommodation of both interests.
In weighing these interests against each other, I must consider whether the petitioner has sat idly on her rights for an unreasonable period of time before attempting to assert them. Lancaster v. Foley, 15 Mass. App. Ct. 967 , 968 (1983). Even prior to G.L. c. 60, §69(a) becoming effective in 1945, vacation of a foreclosure decree was considered to be an extraordinary remedy reserved only for those instances in which justice could not be served by any other means. Lynch v. Boston, 313 Mass. 478 , 480 (1943), citing Russell v. Foley, 278 Mass. 145 , 148 (1932). Justice is not served by allowing the heirs or successors of parties once claiming an interest in the property to question the validity of a foreclosure indefinitely. Allowing such a practice would undermine the marketability of any property having a tax taking in its chain of title. Brewster v. Sherwood Forest Realty, Inc., 56 Mass. App. Ct. 905 (2002). At some point, the balance tips in favor of the certainty of title, and the decree of foreclosure ordinarily becomes absolute and final, with all claims against the resulting title forever barred.
Under certain facts, a petition to vacate a foreclosure judgment is proper even after a number of years have expired. Town of Norwell v. Owners Unknown, et al, 15 LCR 129 , 132-133 (2007). These circumstances usually involve a petitioner who reasonably believed he or she had paid taxes over all of the years and retained ownership of the property, with no actual knowledge of the foreclosure proceedings. Id.
In the case now before me, Lebel claims her interest in Parcel 1 through two distinct chains of title. She claims that each of these chains of title leads back to parties in interest who failed to receive notice of the 1941 foreclosure proceedings. The first consists of various deeds to Lebel from the heirs of Anna Cash between 1986 and 1988. The second is through a deed from William G. Howes, III, Public Administrator of the Estate of Peter Thacher, [Note 3] Barnstable County Probate 88-P-0453-A1, which is recorded in Book 7501, Page 227. The deed from Peter Thachers estate granted certain property to John T. Callahan, who was Lebels predecessor in title. Each claim involves enough factual detail to merit addressing the two separately.
Deeds from the Heirs of Anna Cash
James A. Cash acquired certain property from his father, Job Cash, described in pertinent part as follows in a deed dated November 13, 1862 and recorded in Book 87, Page 569 (Trial Exhibit 7):
The West half part of my dwelling house, with the land under the same, and containing the land out to the road in a line with the north and south part of said house, [Note 4]
James A. Cash conveyed this property (James Cash Parcel) to Herbert L. Kern by a deed dated November 13, 1876 and recorded in Book 126, Page 159. Herbert L. Kern then conveyed the James Cash Parcel to Anna Cash (wife of the same James A. Cash) by a deed dated August 31, 1878 and recorded in Book 141, Page 443, although with a slightly different description. Based on Lebels uncontested evidence on this point, Anna Cash did not convey any interest in this property during her lifetime. Anna Cash died testate on June 4, 1911, her husband James A. Cash having predeceased her on February 12, 1908. In her will, Anna Cash devised a life estate in her homestead to her daughters Sarah E. Ellis and Mary E. Kern, with the remainder to her grandchildren. Agreeing with Lebel, however, I find that the James Cash Parcel was not a part of this homestead estate, there being ample uncontroverted evidence to prove that Anna Cash lived on Summer Street in Yarmouth at the time of her death. Anna Cashs will makes no reference to the James Cash Parcel, and also makes no provision for the disposition of any residue of her real property. The James Cash Parcel thus passed, I find, in fee by intestate succession to her daughters and heirs at law, Sarah E. Ellis and Mary E. Kern. Following the deaths of Mary E. Kern on November 3, 1927 and Sarah E. Ellis on December 8, 1938, the trial record is devoid of sufficient evidence for me to determine completely the subsequent chain of title for the James Cash Parcel. Lebel contends that Mary E. Kern died intestate, which would leave Sarah E. Ellis the sole owner of the James Cash Parcel until her death on December 8, 1938. Beyond that, Lebel argues that Sara E. Ellis died without issue, and that the probate of her estate (Barnstable Probate No. 26482) is immaterial. This is not true. If I am to believe Lebels argument, Sara E. Ellis held title to the James Cash Parcel at the time of her death. The probate of her estate is essential to determining who could have held title to the James Cash Parcel after December 8, 1938, or the right of redemption if the parcel was the subject of a valid tax taking.
Determining exactly who may have held either title or the right of redemption on the James Cash Parcel is not necessary to dispose of this case. If I were to accept Lebels theory on the intestate succession of Sarah E. Ellis interest in the James Cash Parcel following her death [Note 5], I would find that title to the James Cash Parcel was vested in Sarah E. Ellis at least until the tax deed dated August 5, 1938. If the James Cash Parcel was contained in the land taken by the tax deed, the interest held by Sarah E. Ellis was a right of redemption; if the James Cash Parcel was not contained in the land taken by the tax deed, Sarah E. Ellis held fee title. Whatever interest she had, she held it until her death on December 8, 1938, when her interest passed to her heirs or devisees. Thereafter, the interest of Sarah E. Ellis in the James Cash Parcel would have passed to her nieces, because she died intestate and without issue. Those nieces are Annie P. Mahon, Elsie R. ODonnell and Edith T. Murray. (I also assume for the purpose of analysis (without so finding, given the insufficiency of Lebels proof on this) that William J. Murray was the lawful successor to any interest that Edith T. Murray may have held in the James Cash Parcel through her grandmother, Sarah E. Ellis.) Lebel obtained various deeds from Annie P. Mahon, Elsie R. ODonnell and William J. Murray, each of them releasing any interest they had in the James Cash Parcel, along with deeds from others she thought might be a relative of the Cash family.
Deed from the Estate of Peter Thacher
Job Cash died intestate on April 13, 1883. Fred C. Smith, as Administrator of Job Cashs estate, conveyed a parcel of Job Cashs land to Ella Cash by deed dated September 9, 1884 and recorded in Book 193, Page 94. That parcel was described as follows:
a certain tract of land situate in said Yarmouth bounded and described as follows, to wit on the north by woodland of James A. Cash: on the south by the town road: on the East by land of Nancy E. Cash: on the west by the land of James A. Cash and the town road, containing two acres more or less
Ella Cash conveyed this parcel (Thacher Parcel) to Henry Cobb by a deed dated November 18, 1887 and recorded in Book 191, Page 100. Various deeds conveyed this Thacher Parcel among various people between 1887 and 1916, but its title ultimately came to rest with a deed from John Thacher to Peter Thacher dated February 10, 1916 and recorded in Book 359, Page 94. The evidence, without any real dispute, leads me to find that Peter Thacher held an interest in this parcel from 1916 until his death on May 18, 1943. After his death, it passed to his heirs or became part of the residue of his estate. William G. Howes, III, as Public Administrator of the Estate of Peter Thacher, conveyed the Thacher Parcel to James Callahan by a deed dated April 11, 1991 and recorded in Book 7501, Page 227. James Callahan is a business associate of Lebel and her predecessor in title.
Lebel argues that the tax taking commenced in 1938, and the subsequent foreclosure proceedings of 1941 in this court, were fatally flawed and invalid, (see Trial Brief of Lebel, p. 14). She correctly argues that due process requires notice to a property owner before his or her land may be taken for non-payment of taxes, and that the means used for effectuating such notice must be reasonably calculated to apprise interesting parties of the pending action. Andover v. State Financial Services, Inc., 432 Mass. 571 , 574 (2000). She also is correct in suggesting that a judge of this court may vacate a decree of foreclosure if he or she finds that a due process violation has occurred. Sharon v. Kafka, 18 Mass. App. Ct. 541 , 543 (1984).
It becomes increasingly difficult for any trial judge to make such a finding as decades elapse. In this case, Lebel would have me find that the Yarmouth Tax Collector and other town officials failed to notify adequately the owners of the James Cash Parcel and Thacher Parcel of the impending foreclosure in 1941, even though this court had authorized notice by publication to reach the then owners of the James Cash Parcel. Lebel places reliance on the rapidity of the Towns unfruitful response to an inquiry from this court regarding the identity and location of possible defendants, and on a string of inferences she says shows that the Towns officials had more knowledge than they let on about who might be interested in the tax parcel. Although convinced that the search for the true parties interested in the foreclosure proceedings was not exhaustive, on the evidence I have I cannot make the finding Lebel seeks. In determining whether notice was adequate to satisfy due process requirements, I must consider the totality of circumstances surrounding that notice. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795 (1983). Given the more than sixty five years which have passed since the foreclosure proceeding at issue, it is difficult to make findings about the totality of the circumstances that this court faced in1941 when it approved as adequate the search for those owners, certainly to the degree necessary to set them aside as so deficient in diligence to amount to a constitutional violation.
Lebel alleges that the Towns efforts to locate the correct property owners in 1941 were less than diligent. She claims, without supporting evidence which I credit, that the Towns treasurer at that time, Mr. Allen Knowles, knew how to find the owners of the James Cash Parcel, because his grandmother sold other property in Yarmouth to Anna Cash, James Cashs wife. Lebel also claims that Mr. Knowles knew the granddaughters of Sarah E. Ellis, and grew up in close proximity to them. These assertions, while provocative, I find insufficiently proven by the credible evidence to justify the findings Lebel would have me make.
In declining to make such a finding, I have in mind the difficulty that the Town now faces in disproving Lebels assertions. It is greatly burdensome to require the Town to rebut such claims, almost seventy years later. Lebel surely carries the burden of proof on this issue, inasmuch as she seeks to upset the regularity of a decree of foreclosure long complete and, from all objective indicia, proper and final. To reach the findings Lebel seeks, I would need to draw together a chain of inferences about what long-dead officials of the Town knew and did not know. On the evidence I credit on this score, the only way I could come out Lebels way would be to resort to speculation, something I cannot and will not do. Lebels best evidence does not thrust onto the Town the tough burden of proving the regularity of the foreclosure process, including the giving of adequate notice, and to make that the Towns burden would be unjust and unfairly prejudicial. Lancaster v. Foley, 15 Mass. App. Ct. 967 , 968 (1983). Surely the Town can not be expected to provide evidence as to what a now-dead employee knew or did not know in 1941.
It is this unfair burden that gives rise to the public policy in favor of the conclusiveness and marketability of title to lands taken for non-payment of taxes. Sharon v. Kafka, 18 Mass. App. Ct. 541 , 543 (1984). The public interest in conclusive and marketable titles to tax taking land must at some point outweigh an individual property owners hardship. Id. By enacting G.L. c. 60, §69(a), the legislature determined this time to be one year after the foreclosure judgment enters. The decisional law allows that one-year limitation to give way in cases where there is clear proof of a violation of due process, but a party seeking vacation of a foreclosure decree must file without unreasonable delay, and must carry and meet the burden of proving the violation. Brewster v. Sherwood Forest Realty, Inc., 56 Mass. App. Ct. 905 (2002).
Even assuming that the notice given in connection with the 1941 foreclosure was deficient, something I expressly do not do, the interest necessary to seek vacation of the foreclosure would have resided with Sarah E. Ellis, Annie P. Mahon, Elise R. ODonnell (Guinta), Edith T. Murray and William J. Murray from 1941 until 1986, with respect to the James Cash Parcel. As to the Thacher Parcel, an interest in vacating the foreclosure would have rested with Peter Thacher and his heirs from 1941 until 1991.
I am therefore faced with parties who have had an interest in vacating the foreclosure decree, if that right even existed, for approximately forty five years in the case of the James Cash Parcel, and approximately fifty years in the case of the Thacher Parcel. Lebel has not claimed that any of these parties made any effort to assert their interest since 1941. There is no evidence I credit showing that any party in interest made any attempt to use, occupy, or pay taxes due on either parcel in the decades between the foreclosure and Lebels acquisition of these putative interests. One who ignores the obligation to pay taxes for an extended length of time has a substantial burden to show ignorance of the challenged taking. Town of Norwell v. Owners Unknown, et al, 15 LCR 129 , 132. In Norwell, the town assessed taxes on a piece of property to owners unknown, and subsequently took the property from the same anonymous owners unknown. The actual owners of that property also owned an abutting piece of property, on which they regularly paid taxes. It was reasonable for those owners to conclude that they were paying taxes on all of the property, having no reason to think otherwise.
Lebel can make no such argument. The parties whom she contends would have held any interest in the James Cash Parcel ignored, in fact all but abandoned, that interest until executing deeds to Lebel around 1986 and 1987. Indeed, the language of each deed includes the following clause which negates the possibility of claiming any ignorance of a tax obligation (see Trial Exhibits 23, 25, 26, 27 and 28):
The said grantee releases the said grantor from any and all tax liability due the Town of Yarmouth. The said grantee agrees to pay all the back taxes that may be owed to the Town of Yarmouth, Massachusetts. [Note 6]
With respect to the Thacher Parcel, the parties who may have held an interest in petitioning to vacate the foreclosure ignored that interest from 1941 until at least 1991, when the public administrator of Peter Thachers estate conveyed the property to Lebels predecessor.
I find and rule, on all the evidence, that Lebel, even assuming her standing to do so (see note 5, above, and accompanying text), has not carried her burden of showing the deprivation of due process in the 1941 foreclosure proceeding. I find and rule that the foreclosure decree must stand, and that, on the evidence I credit, in the circumstances here the public interest in the marketability of land taken for the non-payment of taxes outweighs the individual interest of those who have not asserted their purported rights for a long time. Brewster v. Sherwood Forest Realty, Inc., 56 Mass. App. Ct. 905 , 906 (2002).
II. Legal Description of the Property Acquired by Tax Taking
Having determined that the tax taking and foreclosure must stand, I address Lebels second and alternative argument. Lebel claims that the James Cash Parcel, the Thacher Parcel, or both these parcels combined, constitute all or a portion of the Towns claimed Parcel 1, and that the property subject to the tax taking is located somewhere north of Parcel 1 and Lebel Lot 1 and Lebel Lot 2. If this were to be so, the Town would not have title sufficient for registration as to Parcel 1.
The courts task is to determine, on the evidence supplied by the parties, which land was conveyed by some of the old, and less than precise, descriptions in the relevant chains of title. This is the task which has been left to this court, and courts generally, for a very long time. In performing this role, courts have developed and applied principles for consistent determination of the boundaries and locations of land. It has been well settled that monuments control the interpretation of a description of real property when the courses, distances or computations of acreage do not correspond with ascertainable monuments. Pernam v. Wead, 6 Mass. 131 , 133 (1809). When deciding between monuments and measurements, there is an inherent potential for human errors in the latter that arises from surveying techniques, equipment deficiencies and calculation errors. Id. This potential for error does not exist when using fixed monuments, making them the most reliable method of determining size and location of real property. Id. From this centuries-old common law rule, a hierarchy of priorities has developed to interpret property descriptions that are facially ambiguous. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). In this hierarchy, fixed monuments are more reliable than measured courses, which in turn are more reliable then computations of area or acreage. Id. This is logical. Computations of acreage are based on measured courses, inviting yet another computational component, with its attendant risk of human error beyond the risk involved in course measurement. It is for this reason that, faced with disagreeing descriptions, courts rarely rely upon calculations of area or acreage. See Paul v. Kelly at 680. Further, courts interpret a recitation of area followed by more or less, or similar words, to mean that land area is not the essence of the deed or contract. Overly v. Treasurer & Receiver General, 344 Mass. 188 , 191 (1962), citing Noble v. Googins, 99 Mass. 231 , 235 (1868). A party to a deed or other instrument of conveyance is not entitled to relief for any deficiency or surplus in the area recited when that recitation is followed by the words more or less or similar words. See Overly at 192-193.
In this case, Lebel claims that her acquisitions of land comprising the James Cash Parcel or the Thacher Parcel leave her owning those holdings lying, on the ground, within the Towns claimed Parcel 1. Her title to the James Cash Parcel comes from a deed description that contains precisely two monuments. [Note 7] See description of James Cash Parcel, supra. The first monument is a dwelling house, which the parties agree no longer exists. Lebel offered evidence of an approximate location of the house through the expert testimony of surveyor Arne Ojala. Mr. Ojala noted the existence of a lily of the valley and lilac bushes on the ground, and concluded that these plants were indicative of the dwelling houses location. I find this evidence of limited, if any, probative value on the question of the former location of the dwelling in question. No evidence was offered to suggest that while it stood the dwelling house was surrounded by such shrubbery, or that the shrubbery observed was old enough to have existed when the dwelling house did. Mr. Ojala also testified as to his conclusions of the dwelling houses location based on a dot labeled J. Cash and located on atlases published in1880 and 1858. A similar concern exists with the reliability of the atlases, neither of which was drawn to scale or with sufficient detail to determine anything more than a general vicinity of the dwelling house, if this was, in fact, the relevant one. It is not necessary for me to determine the exact location of the James Cash Parcel, nor is it possible, on the evidence I credit, for me to do so. With respect to the James Cash Parcels location, the only issue in this case is whether it is located within the Towns claimed Parcel 1. Based on the foregoing, I find that Lebel has not offered sufficient evidence to show that it is so located.
With respect to the Thacher Parcel, Lebel claims title to land described as follows:
a certain tract of land situate in said Yarmouth bounded and described as follows, to wit on the north by woodland of James A. Cash: on the south by the town road: on the East by land of Nancy E. Cash: on the west by the land of James A. Cash and the town road, containing two acres more or less
Again, the only boundary disputed in this case is the northerly boundary, the south, east and west being undisputed. I must thus resolve the issue whether Lebel can claim to own all or a portion of Parcel 1 by the abutter call of on the north by woodland of James A. Cash or by the estimate of containing two acres more or less.
An abutter call such as the one referenced above is considered a monument in determining property size and location, but only to the extent that the monument is certain or can be made certain. Ryan v. Stavros, 348 Mass. 251 , 258-259 (1964). Because there is no evidence to ascertain the precise location of the woodland of James A. Cash, that abutter call has little or no value in determining the property location.
Lebel also relies on the words containing two acres more or less to argue that her northern property line must be somewhere north of the southern property line the Town claims for Parcel 1. She contends that the southern, eastern and western boundaries are not in dispute, and that the northern boundary must therefore be somewhere north of where the Town places it, to accomplish the two acre reference in her legal description. This reliance and argument is misplaced. The words "more or less" suggest that the area call is not exact and that the grantor did not intend the acreage call to be a reliable measure of what was conveyed. Paull v. Kelly, 62 Mass. App. Ct. 673 , 681 (2004), citing Overly v. Treasurer & Recr. Gen., 344 Mass. 188 , 192 (1962). The acreage call therefore cannot be relied upon by a party claiming a deficiency or surplus in property, absent cases of fraud or gross mistake. Id. The parties do not suggest, nor do I find, either to be present in this case.
Lebel admits that if the tax taking stands, the Town acquired the young pine woodland described in the Job Cash Estate (See Lebels Trial Brief at p. 12). That young pine woodland is more particularly described as follows in the inventory of Job Cashs Estate (See Tr. Ex. 58): A piece of young pine woodland bounded on the West by a road, on the South by the Homestead Lot of said deceased, on the East and North by a ridge of land, containing 2 acres, more or less. (Young Pine Woodland Parcel)
The Town has sustained its burden of proof in identifying the westerly, easterly and northerly boundaries of Parcel 1, as those boundaries are derived from the description of the Young Pine Woodland Parcel. The uncontested westerly boundary is West Yarmouth Road. The easterly and northerly boundaries of the Young Pine Woodland Parcel are described as ridges, and the Towns plan showing Parcel 1, I find, depicts the easterly and northerly boundaries as being marked by ridges (See Trial Ex. 76). Lebel does not dispute that the ridges exist as shown on the plan, but she does argue that those ridges may not be the same ones that were referenced in the description of the parcel from the Job Cash Estate. I find this argument unpersuasive. The ridges that currently exist on the property are shown also to have existed in 1942 on a plan recorded in Plan Book 79, Page 121 (See Trial Ex. 52). On its face, that plan shows that it was prepared by Nelson Bearse, who appears to have been a civil engineer from Centerville, MA in 1942. Through the expert testimony of Arne Ojala, Lebel argues that the ridges mentioned in the Job Cash Estate description could have been somewhere else, possibly to the north of Parcel 1 (See Trial Transcript, Day 2, p. 26-28). Mr. Ojala conceded that this statement was for the most part speculation, because there is no evidence to suggest affirmatively that these ridges existed farther to the north; the land long since has been graded and developed. Having considered all of the evidence, I find that the ridges shown on the Towns registration plan are the same ridges shown on the 1942 plan, and are the same ridges described in the Job Cash Estate inventory. Accordingly, I find that the northerly and easterly boundary lines are as shown on the Towns plan showing Parcel 1.
I now am left to determine the southerly boundary of Parcel 1, which will form the northerly boundary of the property Lebel claims. According to the uncontested description from the Job Cash Estate, Parcel 1 is bounded on the South by the Homestead Lot of said deceased. Lebels property, the Thacher Parcel, is bounded on the north by woodland of James A. Cash. These two calls should describe the common boundary between the two parcels, but they are ambiguous and offer no real assistance in determining the actual boundary line. It thus is proper for me to consider extrinsic evidence to interpret the boundary line between the two parcels. Temple v. Benson, 213 Mass. 128 , 132 (1912). The parties have offered very little extrinsic evidence to aid in my decision, though I doubt this shortfall is the result of either partys lack of skill or diligent effort. There is simply very little evidence to be had. Lebels claim to locate the boundary line north of where the Town suggests is based primarily on the recitations of acreage in the descriptions of the Thacher Parcel and other surrounding parcels. When followed by the words more or less, these recitations have little or no evidentiary weight in determining the location or size of property, see Overly v. Treasurer & Recr. Gen., supra, and I give them none. The Town argues that the boundary line in question is designated by fragments of a ridge at the southwesterly and southeasterly corners of Parcel 1 (See Trial Ex. 76). There is evidence to suggest that these ridge fragments were connected at some point and later separated by a sand pit excavation. If they were so connected, the resulting ridge would form a line running east to west. There is however, no mention of the ridge in the description of the Young Pine Woodland Parcel.
The 1942 plan recorded in Plan Book 79, Page 121 (Trial Ex. 52) defines the boundary between the land originally owned by Job Cash and an abutting Parcel C shown on the plan. Most of the boundaries are marked with the words old ridge. In addition to the ridges that mark the boundary, the 1942 plan shows what appears to be another ridge in the same place where the Towns plan depicts ridge fragments on the southerly boundary of Parcel 1. Nothing in the evidence convinces me that these ridges would have occurred naturally, and I find that they did not. Rather, I draw the logical inference that the parties on the land constructed the ridges as monuments to define property boundaries.
The ridge which would be located along the southerly boundary of Parcel 1 was not referenced in the property descriptions of the Job Cash Inventory because that ridge would not have existed when Job died in 1883. Based on all of the evidence submitted, it is most likely that the ridge was constructed to mark the boundary of the parcel conveyed from Job Cashs Estate to Ella Cash in 1884 (See Trial Ex. 11). This parcel then was conveyed to Henry Cobb (See Trial Ex. 12), next to Peter Thatch (See Trial Ex. 13) and ultimately to Lebel (See Trial Ex. 31). The narrative chains of title (submitted by Lebel) reference no other division of the Job Cash land that logically could be marked by this particular ridge. I therefore find and rule that the Town has title to Parcel 1 as depicted on its petition plan dated June 28, 1999. The town has satisfied its burden of proving, by a preponderance of the evidence, its title to Parcel 1. III. Effect of the 1942 Instrument of Redemption
Lebel also argues that the Town intended to release any interest it acquired through tax taking by virtue of an instrument of redemption dated December 8, 1942, and recorded in Book 598, Page 393 (See Trial Ex. 50). I find no such intent in the instrument of redemption. The first tax taking was executed on August 5, 1938 and recorded in Book 542, Page 91 (See Trial Ex. 39). A second and superfluous tax taking was executed on July 17, 1940 and recorded in Book 568, Page 165 (See Trial Ex. 40). This court issued a final decree foreclosing the right of redemption with respect to the 1938 tax taking on November 27, 1941 (See Trial Ex. 48). Notice of this adjudication is recorded in Book 587, Page 289 (See Trial Ex. 47). Following the decree of foreclosure, the Town executed the Instrument of Redemption dated December 8, 1942, which was recorded in Book 598, Page 393. On its face, the Instrument of Redemption clearly and unambiguously refers to the superfluous tax taking dated July 17, 1940 and recorded in Book 568, Page 165. Nothing in the instrument of redemption suggests the Town had any intent to release any interest acquired by the 1938 tax taking. The only mention of the 1938 tax taking in the instrument of redemption is a reference in the legal description.
I find the Towns sole intention in executing the instrument of redemption was to release any interest in the property described in the 1938 tax taking that arose by virtue of the unnecessary and potentially confusing later 1940 tax taking. The December, 1942 instrument of redemption was not intended by the Town to give up the title it had secured by the decree of foreclosure in November, 1941. This foreclosure was complete by then, having gone to decree. It was not open to the Town to reverse the effect of the courts decree simply by handing out an instrument of redemption. Following foreclosure, there was no right of redemption still existing. To undo the foreclosure, the Town would have had to move this court for vacation of the foreclosure decree, something that plainly never was sought until the Lebel request many decades later. If such a motion had been made and allowed, the court would then have had to issue an order vacating the foreclosure decree, and that document--from the court, rather than the Town--would be recorded to restore the right of redemption. Only then would an instrument of redemption have been of any value. None of this happened. It did not, I find, because the Town issued the instrument of redemption as a precautionary matter, to lift from the title to the foreclosed land the cloud overhanging it by virtue of the second tax taking in 1940. In this way, the instrument of redemption served to substantiate and perfect the title that came out of the foreclosure, rather than to diminish or relinquish that title. On all the evidence, I find and rule that the instrument of redemption dated December 8, 1942 and recorded in Book 598, Page 393 has no effect on the tax taking dated August 5, 1938 and recorded in Book 542, Page 91, the subsequent foreclosure of that tax title by this court, and the title that emerged.
It follows that judgment is to enter in the miscellaneous case in favor of the defendant Town, and against the plaintiff, Lebel. The Town, as the prevailing party, is to prepare, serve, and submit within twenty days, a proposed form of judgment. The plaintiff, Lebel, is to file and serve within ten more days her proposed form of the judgment.
In the registration case, the objections to registration advanced by the defendant Lebel are dismissed. The plaintiff Town has proved its title to Parcel 1, subject to other matters of record not implicated in the answer of Lebel, and, on demonstration by the Town that no other matters unrelated to the objections of Lebel remain outstanding, an order for judgment of registration and confirmation of the title to Parcel 1 is to enter in favor of the Town.
Gordon H. Piper
Dated: October 9, 2009.
[Note 1] The Towns petition for registration included an additional parcel of land marked Parcel 2 on the petition plan. I granted on August 29, 2007 the Towns unopposed motion to sever the Parcel 2 registration proceedings, over which the court has retained its jurisdiction separately.
[Note 2] With respect to the relief sought for the tax taking, Lebel more appropriately should have petitioned to vacate the foreclosure decree in Tax Lien Case No. 19367. I will address the claim notwithstanding the manner in which it has been presented to the court, in the interest of reducing further circuity in the litigation of this dispute, and because I conclude that doing so creates no unfair prejudice to the Town.
[Note 3] The parties initially disputed whether Peter Thatcher, Peter Thacher and Peter Thatch, as recited in various instruments, were one and the same person. Resolution of this dispute is not material to this case as the parties agree that Lebels predecessor in title (John T. Callahan) validly acquired some parcel of land from the estate of Peter Thatcher by virtue of the deed recorded in Book 7501, Page 227.
[Note 4] The deed from Job Cash to James Cash also conveys an undivided one half interest in a barn situated on Job Cashs land in Yarmouth. The parties agree that the barn no longer exists and is not material to the case at hand.
[Note 5] I do not find Lebels theory on the intestate succession of the James Cash Parcel to be correct. I consider her theory only to address, alternatively, her claim that the foreclosure decree of 1941 should be vacated.
[Note 6] For the purpose of illustrating that the grantors were not ignorant of a prior tax obligation, it is of no consequence that none of the deeds in evidence as trial exhibits 23, 25, 26, 27 and 28 were signed by the grantee.
[Note 7] The second monument is the road, which is clearly ascertainable. That monument is of no consequence to this matter because it establishes the western boundary of the James Cash Parcel; the northern boundary is the only one of concern in this matter.