ARDIS GRAHAM and RODNEY L. DAVIS v. ALBERT E. JOHNSON, PAULETTE JOHNSON, and FRANK A. JOHNSON, JR.

This matter focuses primarily upon plaintiffs’ assertions that the grantee clause under a deed (Deed) is ambiguous, thereby calling into question the identity of the named grantee(s).

Ardis Graham and Rodney L. Davis (plaintiffs) initiated this action concerning title to 18 Franklin Street in the Dorchester section of Boston, Massachusetts, (premises/locus) each purporting to hold record title to one of two condominium units. Plaintiffs seek a determination that Albert E. Johnson, Paulette Johnson, and Frank A. Johnson, Jr. (defendants) have no ownership interest in the premises. To this end, plaintiffs seek, inter alia, reformation of a deed they allege to be ambiguous or, failing such reformation, a determination that the defendants were ousted from any interest they may have inherited by virtue of that deed.

For the reasons that follow, this court finds that the defendants possess an ownership interest in locus, inherited at law upon the passing of their father Frank A. Johnson, who died intestate. I further find that no defendant has been ousted from his or her interest in the premises.

Procedural History

On October 11, 2007, Ardis Graham and Rodney L. Davis filed a Complaint concerning the property known and numbered as 18 Franklin Street in the Dorchester section of Boston. The Complaint centers around language in a Deed executed in Hancock County, Maine, from “Wellington P. Bartels and Gladys L. M. Bartels (formerly Gladys L. M. Nelson) his wife, in her own right, both of Bucksport, Maine” to “Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston” dated October 11, 1956 and recorded with the Suffolk Registry of Deeds (Registry) on December 4, 1956 at Book 7202, Page 480 (Deed).

Count I sought reformation of the Deed so as to “demonstrate the intention of the parties ….was either (a) to convey title to Audrey alone, or (b) to convey title to Frank and Audrey as tenants by the entirety, but not c) to convey title to Frank and Audrey as tenants in common.” Count II seeks removal of a cloud on title by declaring the “possible record interest” of Albert E. Johnson, Paulette Johnson, and Frank A. Johnson, Jr. null and void. Count III requests that the defendants try title to the property at issue.

On May 14, 2009, plaintiffs filed an Amended Complaint by leave of court. The Amended Complaint adds a count in which adverse possession and ouster are alleged.

The case was tried on October 5, 2009. Thereafter, upon receipt of the parties’ post-trial briefs, the matter was taken under advisement.

Background

On all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows: [Note 1]

1. This case concerns a parcel of land known and numbered 18 Franklin Street in the Dorchester section of Boston, Massachusetts, having been improved by a residential dwelling.

2. Gladys L. M. Nelson (Gladys) obtained title to the locus by virtue of a deed from Merchants Co-Operative Bank dated January 11, 1937 and recorded with the Registry at Book 5646, Page 381.

3. Gladys had been previously married to William Nelson, who died in approximately 1920, seventeen years before Gladys took title to the premises. The two had a daughter, Audrey Nelson (Audrey), born February 24, 1916.

4. Gladys married Wellington Bartels on June 21, 1937, approximately five months after obtaining title to the locus. Her daughter, Audrey, married Frank A. Johnson, a/k/a Frank A. Johnson, Jr. (Frank Johnson / Frank A. Johnson) on September 21, 1949.

5. On October 11, 1956, locus was conveyed by “Wellington P. Bartels and Gladys L. M. Bartels (formerly Gladys L. M. Nelson) his wife, in her own right, both of Bucksport, Maine” to “Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston…” by virtue of a deed recorded with the Registry on December 4, 1956 at Book 7202, Page 480. [Note 2]

6. The consideration for the conveyance of the premises approximated $7,000.00. [Note 3] The conveyance was not therefore a gratuity.

7. The Deed contained a Testimonium Clause, reading: “I, Wellington P. Bartels, husband of said grantor, release to said grantee all right of tenancy by the curtesy and other interests therein.” Both Gladys and her husband signed the Deed, but only Gladys signature was acknowledged. The Deed, drafted by a non-lawyer, was executed in Maine. [Note 4]

8. On December 4, 1956, almost two months after the execution of the Deed, [Note 5] a purchase money mortgage was executed in favor of The Massachusetts Co-Operative Bank. It was recorded with the Registry on even date at Book 7202, Page 481. [Note 6]

9. The mortgage recited that it had been granted to “secure the payment of Four Thousand ($4000.00) Dollars . . . all as provided in my note [Note 7] of even date.” The mortgage goes on to state, “For my title see deed of Gladys L.M. Bartels (formerly Gladys L.M. Nelson) to be recorded herewith.”

10. The mortgage’s Grantor Clause reads in relevant part as follows:

WE, Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston . . . , being married, for consideration paid, grant to THE MASSACUSETTS CO-OPERATIVE BANK situated in Boston…, with MORTGAGE COVENANTS, to secure the payment of Four Thousand ($4000.00) Dollars….

11. The mortgage document concludes with a Testimonium Clause which provides as follows:

I, Frank A. Johnson, husband of said mortgagor release to the mortgagee all rights of tenancy by the curtesy and other interests in the mortgaged premises.

Both Audrey and Frank A. Johnson signed the mortgage; Audrey’s signature only, was notarized. 12. On April 8, 1962, Frank A. Johnson died intestate. No administration was filed. His heirs consisted of his wife, Audrey, and their four children: Albert E. Johnson (Albert), Paulette Johnson (Paulette), Frank A. Johnson, III [Note 8] (Frank) – collectively, the defendants – and Christine A. Johnson (Christine). Albert was born August 29, 1950; Christine was born February 26, 1952; Paulette was born July 13, 1953; and Frank was born on January 15, 1955. [Note 9] At the time of his passing, none of his four children had yet reached the age of majority.

13. From 1962 through the early 1985 at least one of the defendants could generally be found living at the premises. [Note 10] Audrey Johnson herself did not reside at the locus from approximately 1967 to 1972, residing rather at her Hingham residence at 149 Cushing Street. That property was conveyed to Christine for $25,000.00 in 1970. [Note 11] Sometime thereafter, Audrey moved back to her 18 Franklin Street dwelling. She maintained her residence there until moving to Maine in the early 1980’s. [Note 12]

14. Albert continued to reside at locus after Audrey moved to Maine. [Note 13] Frank moved out of the premises in 1981 or 1982, resided for a time in Maine with his mother, and returned to live at locus thereafter. He resided at the Franklin Street address until 1984 or 1985. Neither Albert nor Frank paid rent. [Note 14], [Note 15]

15. Sometime on or before 1985, [Note 16] Audrey Johnson inquired of Christine [Note 17] if she and her husband Ronald F. Reilly “were interested in purchasing the property” at issue. At the time, Christine and her husband resided at 149 Cushing Street in Hingham. It was agreed that locus would be conveyed at some future date to Christine and her husband. No specific conveyance date was agreed upon. There were tax liens on the premises totaling $1,432.00 as well utility liens said to be in the “thousands.” [Note 18] The principal amount of cash consideration upon which the parties reached agreement was $25,000.00. [Note 19]

16. It was also agreed that when Audrey moved to Maine, where her mother Gladys resided, Christine and Ronald would manage the property, paying utilities out of pocket, paying off the outstanding liens, and remitting payments to Audrey. These payments would be for a designated amount each month. This arrangement was never memorialized in written form.

17. After Audrey moved from the premises, Christine and her husband assumed responsibility for its management. Since 1985, no defendant has resided at the premises. Christine Reilly last resided at the premises in approximately 1968. [Note 20] At no time relevant hereto, has she occupied the premises at 18 Franklin Street. [Note 21], [Note 22]

18. No portion of the collected rent found its way to either defendant Albert or Paulette Johnson. Nor did either sibling seek such payment. However, “many times” Frank would call Christine asking for money for “him and [his] mother.” [Note 23]

19. Christine and her husband maintained insurance coverage on the property in their name. As they were not the record owners, they were able to procure fire protection insurance on the premises, but not conventional homeowner’s coverage. [Note 24]

20. Christine and Frank Reilly paid the outstanding utility and tax obligations on the premises, apparently over a period of years.

21. Christine and Frank Reilly concluded their payments to Audrey Johnson in 1990 or 1991. [Note 25]

22. The following exchange occurred during Christine Reilly’s cross-examination concerning her presence in Massachusetts and management of the premises:

Q: Now you state you were in the service for…approximately what, 22 years?

A: Yes, I was…. I was in the National Guard and we were stationed in Boston.

Q: So you continued to remain in this area throughout the 22-year period that you were in the service?

A: Yes, I did.

Q: Did you ever have any active duty outside of ...Massachusetts?

A: Yes, I did.

Q: And when was that?

A: Well, it was various times throughout the 22 years. I don’t remember. If you want dates, it [active duty outside the Commonwealth] would probably be like every three years from 1973 till I got out.

Q: And when did you get out?

A: I think it was 1996.

Q: So there were periods of time that you weren’t in the area to manage the property or oversee the property; is that correct?

A: Well, it wouldn’t be for long. My husband would---we were always both in the area. (emphasis added)

23. Approximately six years after the agreed payments had been concluded, on March 22, 1996, Audrey Johnson conveyed title in the premises to “Ronald F. Reilly and Christine A. Reilly, husband and wife, Tenants by the entirety” by virtue of a deed recorded with the Registry at Book 20431, Page 218. The stated consideration was $30,000.00. At that time, the assessed value of the property was $116,800.00. [Note 26] Audrey Johnson, then in her eighties, [Note 27] was not represented by counsel in connection with the transaction, as was Christine. [Note 28] None of the defendants, Albert, Paulette, or Frank, III, was granted an express interest in the locus at that time.

24. At no time did Christine Reilly, Ronald Reilly or Audrey Johnson advise the defendants or any of them, that they would be precluded from living at the premises. However, the premises consisting of two rental units, were, generally occupied by rent-paying tenants. [Note 29]

25. On September 28, 2000, Christine Reilly and Frank Reilly conveyed the locus to David Humphrey Sr. by virtue of a deed recorded with the Registry on the same date, at Book 25400, Page 241.

26. Following subsequent conveyances, the locus was converted into a two-unit residential condominium. In August 2007, the plaintiffs Ardis Graham and Rodney L. Davis took title to these units by deeds recorded with the Registry at Book 42307, Page 150 and Book 42381, Page 81, respectively.

27. None of the defendants became aware of their alleged legal interest in the property until 2007 or 2008. [Note 30]

28. If one were to construe the Deed as creating a tenancy in common between Frank A. Johnson and Audrey Johnson, husband and wife, then each of the named defendants would possess a recorded one twelfth interest in the premises. [Note 31]

Discussion

A. Title

This court is asked to determine whether the Grantee Clause in the Deed at issue, to “Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston” – had the effect of vesting title to the 18 Franklin Street property in Audrey Johnson and her husband Frank A. Johnson, or in Audrey alone. [Note 32] A determination that Audrey held title in her sole capacity would be tantamount to a conclusion that the words in the grantee clause, “to Frank A. Johnson . . . ,” are mere surplusage.

“Certain principles of law are well settled. Every deed is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed.” Bessey v. Ollman, 249 Mass. 89 , 91 (1922). (citations omitted)

At trial, both plaintiffs and defendants presented expert testimony which sought to place the unique grantee language in historical context, and to render “expert” interpretations thereof.

Plaintiff’s witness in this regard, Joel stein, readily acknowledged that he had never “seen language like this in a grantee clause.” [Note 33] On cross-examination, the following exchange took place with Mr. Stein:

Q: Didn’t you say that the use of this language in a [deed’s] grantee clause was extremely unusual and you never saw it before?

A: Correct. [Note 34]

Q: Well, a deed on its face conveying an undivided interest to a husband and an undivided one-half interest to the wife, in her own right could be interpreted as conveying that undivided one half interest to the wife, in her own right as tenant in common with her husband; is that correct?

A: That’s correct. [Note 35]

Q: Would you agree with me that in 1956,…a tenancy by the entirety--a conveyance of land to a husband and wife as tenants by the entirety gave a husband superior rights over a wife?

A: Correct.

Q: In fact didn’t a tenancy by the entirety in 1956 give the husband sole right to possession of property; isn’t that correct.?

A: Subject to the right of the wife, the survivorship interest. [Note 36]

Q: Well, isn’t it true that a tenancy by the entirety in 1956 also gave the husband sole right to any rents and profits from the property; is that not correct?

A: That is correct. [Note 37]

Q: Are you saying that the husband would not be entitled to possession of property held as tenancy by the entirety to the exclusion of the wife.?

A: Well, I’m saying if he died, she would have a survivorship interest.

Q: But during their joint lifetimes, wouldn’t the husband be entitled to sole possession of the property to the exclusion of the wife when property was held as a tenancy by the entirety?

A: Yeah. [Note 35]

Mr. Stein he stated that he “believe[d] the mortgage would demonstrate that the grantee of the deed was Audrey Johnson.” [Note 38] He concluded his testimony on cross examination by noting that he was “[t]aking the mortgage that followed [the Deed] as a demonstration of the intent [of the parties.] [Note 39]

By including the words “in her own right,” the court may find the parties intended to clarify that Audrey was to have rights in the property equal to those of her husband.

In reviewing the Deed’s Grantor Clause for guidance, the court notes that locus was conveyed by “Wellington P. Bartels and Gladys L. M. Bartels (formerly Gladys L. M. Nelson) his wife, in her own right, both of Bucksport, Maine . . . .” The name of Gladys’s husband, Wellington P. Bartels, is included in the grantor clause despite the fact that he held at most, a curtesy interest. As he held no ownership interest in the premises, both the plaintiffs’ and defendants’ experts agreed at trial that Wellington Bartels was named in the Grantor Clause for the sole purpose of releasing any curtesy interest he might have held.

In interpreting the Grantee Clause, plaintiffs point to the parallel language appearing in both Grantor and Grantee Clauses. They argue that because Gladys’ husband held a possible curtesy interest, the parties, in employing parallel language, did not intend to convey an interest in the premises to Frank A. Johnson.

For their part, defendants argue that the reason for including Audrey’s husband in the Grantee Clause of the Deed could not have been the same reason that Gladys’s husband was included in the Grantor Clause. For “[a] grantee does not need to waive curtesy rights in the grantee clause . . . and indeed can’t waive curtesy.” [Note 40]

Plaintiffs point also to language in the Deed’s Testimonium Clause in which Wellington Bartels, Gladys’ husband, released his interest in the premises to “said grantee.” [Note 41] They cite such language for the proposition that the parties intended that there be but a single grantee under the Deed. While the clause does refer to “grantee” in the singular, it is to be noted that the word appears on a preprinted form. And while that term could, in theory, have been altered by hand to read “grantees” the available spacing will not readily admit of such alteration. In any event, the use of the word “grantee” in this context, will not suffice to alter this court’s interpretation.

There is distinct phraseology in the subsequently executed mortgage that is cited by both sides to substantiate their view of the parties’ intentions under the Deed. Defendants highlight the fact that Audrey’s husband Frank A. Johnson is named in the Grantor clause of the mortgage. The grant begins, “WE, Frank A. Johnson and Audrey Johnson, his wife, in her own right, both . . . .” [Note 42] Defendants’ expert asserted that if Frank had executed the mortgage solely for purposes of waiving curtesy rights, it would not be “proper conveyancing practice” and would be poor drafting to have included him anywhere but in the Testimonium Clause. [Note 43]

For their part, plaintiffs highlight several passages appearing in the mortgage including the typed “my note of even date” (emphasis added) and “for my title” (emphasis added) found on the first page of the mortgage. They cite too, the language in the Testimonium Clause reading “husband of said mortgagor” (emphasis added). Defendants argue, that given their interpretation of the mortgage, the Testimonium Clause as a whole is superfluous.

To the extent that a review of the mortgage may facilitate this court’s interpretation of the Deed, it must be noted that the mortgage was executed almost two months after the Deed (although recorded simultaneously therewith). The mortgage was moreover, drafted by an attorney in this Commonwealth, rather than by a person [Note 44] in the State of Maine, as was the Deed. As such, the weight given by this court to the mortgage document will, in any event, be reduced accordingly.

It may well be that the mortgagee’s counsel upon reviewing the unusually worded grantee clause in the Deed, endeavored to craft a mortgage that would, in the vernacular, cover all his bases, no matter what interest Frank Johnson obtained under the Deed as a matter of law. To this end, Frank A. Johnson, husband of Audrey Johnson, is very clearly named as a mortgagor while, at the same time, releasing any curtesy rights to the mortgagee. [Note 45] While the signature of Audrey Johnson alone was notarized, the court views that fact as one of no moment. [Note 46]

Of the four parties to the Deed transaction at issue, all but Audrey Johnson are deceased. Consequently, she was the only individual from whom the court could, and did, hear testimony as to the intention of the parties to the Deed. At the time of her testimony, she was 93 years old. Generally speaking, the court found that she was articulate, possessed of mental acuity and highly credible. On direct examination, she responded to defendants’ counsel as follows:

Q: I’m going to turn to page 4 of the exhibits and ask you if you recognize the document?

A: (Witness reviewing exhibit 4.) I would say yes.

Q: And is that the deed from your mother and her then husband, Mr. Bartels, to you and your husband at the time, Mr. Johnson?

A: Yes.

Q: Did you and your husband purchase that property together from your mother in 1956?

A: Yes…. [Note 47]

Q: Do you remember getting a mortgage on this property at that point in time? [Note 48]

A: Yes….

Q: Do you recall signing the note for that mortgage?

A: I don’t remember. [Note 49]

Q: You don’t. Would it be fair to say that your payment of those mortgage payments came from your husband’ earnings right up until the time of his death?

A: Yeah. I would say so.

Q: And did you consider that property to be both yours and your husband’s?

A: Yes. [Note 50]

On cross-examination, Audrey Johnson testified as follows::

Q: Was the intention of your mother Gladys, to the best of your knowledge, to transfer the property to you?

A Yes.

Q So your understanding was that the intention of your mother was to transfer it to you?

A Mm-hmm.

Q Is that correct?

A Yes. [Note 51]

The very next question posed to Audrey by the defendants’ counsel on redirect examination was as follows:

Q Mrs. Johnson, would you state that the intention of your mother was to transfer the property to you and your husband?

A Yes [Note 52]

Finally, after Audrey was reminded of certain seemingly inconsistent deposition responses, defendants’ counsel posed the following on further redirect examination:

Q : But as far as you were concerned, was it your intention, right, that you and your husband, right, were to share this house – share ownership of this house; is that correct?

A: Right. [Note 53]

In light of the foregoing, this court is satisfied that Audrey Johnson believed that locus was being conveyed to her and her husband. [Note 54]

Based, inter alia, upon the testimony of Audrey Johnson as it reflects the intent of the parties to the conveyance, and given this court’s reluctance to effectively ignore the phrase “to Frank A. Johnson” appearing in the grantee clause, I hold that the Deed from “Wellington P. Bartels and Gladys L. M. Bartels (formerly Gladys L. M. Nelson) his wife, in her own right, both of Bucksport, Maine . . . to Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston . . .,” conveyed title to both Frank A. Johnson and Audrey Johnson as tenants in common. The phrase “in her own right,” served to assure that the conveyance conferred the same panoply of ownership rights upon Audrey, as was conferred upon her husband. [Note 55]

Moreover, under G.L. c.184, §7, “[a] conveyance or devise of land to two or more persons or to a husband and wife . . . shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly . . . or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy.” This Deed neither states that Frank and Audrey were to take jointly nor does it appear that such an estate was intended. I therefore conclude that the effect of the above Deed was to vest title in Frank A. Johnson and Audrey Johnson as tenants in common, each with a fifty percent undivided interest.

B. Ouster

In light of the foregoing conclusion, plaintiffs seek a determination that the defendants have been ousted of their title as a matter of law due to 1) “passage of a sufficiently long period of time of dominion on the part of plaintiffs and their predecessors in title” and 2) “the absence of any indicia of dominion on the part of the defendants.” [Note 56]

“The acquisition of title to real estate by adverse possession is based upon the statute of limitations of twenty years to recover possession of land [found in G.L. c. 260, § 21.] The theory is that there has been a disseisin by an adverse possessor, and that consequently an owner must bring an action to recover the land within twenty years.

“Disseisin of a co-owner is also possible, although the requirements for an adverse possession title are much stricter, since both co-owners are entitled to possession; the one claiming adverse possession must prove an ouster of the other co-owner.” [Note 57] (emphasis added)

The named plaintiffs, having acquired title in 2007 are clearly unable to demonstrate the requisite possession. However, [i]f such right or title first accrued to an ancestor or predecessor of the person who brings the action…. the twenty years shall be computed from the time when the right or title so first accrued. G.L. c.260, §22.

To demonstrate the acquisition of title through adverse possession, the plaintiffs must prove their “nonpermissive use [was] actual, open, notorious, exclusive and adverse . . . .” Lawrence v. Concord, 439 Mass. 416 , 421 (2003). The plaintiffs’ burden of proof “extends to all of the necessary elements of such possession.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 (2004) (citing Holmes v. Johnson, 324 Mass. 450 , 453 (1949)). Plaintiffs will be unable to prevail if “any of the elements remains unproven or left in doubt . . . .” Id. (citing Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968)). The degree and character of these required elements “vary with the character of the land, the purposes for which it has been adapted, and the uses to which it has been put. LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938).

A cotenant claiming adverse possession against another cotenant faces a greater burden in demonstrating that such possession is adverse. Exclusive possession by one cotenant can fall short of meeting that burden as such possession may be “consistent with the right of [the other and] not a disseisin.”

See Joyce v. Dyer, 189 Mass. 64 , 67 (1905) (“The seisin and possession of one tenant in common is to be taken as the seisin and possession of his cotenant, and the occupation of one will be deemed to be in conformity to his right and title as tenant in common and not adverse, and consequently that lapse of time will not bar the co-tenant”).

Moreover, while Massachusetts does not recognize a “presumption or inference of permissive use among ‘close’ family members,” evidence of a familial relationship “may sometimes assist the fact finder in determining the individual nature of the relationship between the claimants,” keeping in mind that it does not “put an end to the inquiry . . . nor shift[] the burden of proof.” Totman v. Malloy, 431 Mass. 143 , 146-148 (2000).

In the case of Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920) the Court enunciated the following principles:

It is true as a general rule that the possession of one tenant in common, even if exclusive, it being consistent with the right of his co-tenant, is not a disseisin, and an ouster or some equivalent act is necessary to accomplish this, and the sole possession of land by a tenant in common with the receipt of the profits will not alone be sufficient evidence of an ouster. But after the sole possession and appropriation of profits have been continued with the knowledge of the co-tenants, for a long series of years, a presumption does begin to arise against them…. It may however be safely said that a sole uninterrupted possession and pernancy of the profits by one tenant in common, with the knowledge of the other, [Note 58] continued for a long series of years without any perception of profits or demand for them by the co-tenant, [Note 59] if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right, will furnish evidence from which a jury may and ought to infer a natural ouster and adverse possession…. It is also now well settled that a long exclusive uninterrupted possession by one, without any possession or claim of profits by the other, is evidence from which a jury may and ought to find an actual ouster.

(emphasis added) (internal citations omitted)

While ouster may involve a physical act, a “decisive intent to occupy to the exclusion of the absent cotenant” need not involve a “turning out by the shoulders.” Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984).

Audrey Johnson is the first co-tenant who, in theory, had the opportunity to adversely possess the locus to the detriment of her children, the defendants. At the time Audrey’s husband passed on, their four children were minors. At no point once they reached majority, did Audrey inform the defendants, or any of them, that they could not reside, or otherwise make use of the premises. Moreover, from the period of her husband’s death in 1962 until approximately 1985, each of the three defendants spent time living at the premises without paying rent while, at least to some degree, carrying out ordinary maintenance, including painting, papering, kitchen renovations, taking out the trash and paying certain bills. [Note 60] Clearly, as to her siblings, Christine’s possession could not be said to be exclusive or adverse, until some time after 1985. I conclude therefore, that no ouster could have occurred prior to that year.

By the same token, it is abundantly clear on the trial record that the arrangement concerning management and use of the premises by Christine Reilly and her husband was initiated by Audrey Johnson, the putative owner. That arrangement was entirely permissive in nature. [Note 61] Consequently, the commencement of any ouster period would not commence until such time as the locus was conveyed outright to the Reillys by Audrey Johnson in 1996. Even if we were to tack the period of the Reillys’ record ownership [Note 62] onto the period the premises were held by subsequent title holders, the total would still amount to little more than ten years. Such period would plainly fail to qualify as a sufficiently “long series of years” to raise a presumption of ouster, for a period of permissive use is wholly inconsistent with a claim of adverse use.

Thus, one may not argue that the defendants had been ousted without reaching back to the period in which Audrey Johnson held record title in the property, i.e. prior to the sale to Christine in 1996. The question then arises whether the circumstances and length of the Reilly’s actions could create a presumption of ouster solely as to the defendant co-tenants. [Note 63]

If we were to tack the additional period from 1985 to 1996, [Note 64] the plaintiffs might then be able to aggregate a sufficient number of years in which to maintain an adverse possession claim as against a stranger. Utilizing the entire period from 1985 to 2007, [Note 65] the plaintiffs could, at best, demonstrate a period approximating twenty-two years in their attempt to support their claim of ouster.

However, in Tatten v. Snowdale, 4 LCR 156 (1996), the court. (Lombardi, J.) noted that “the duration needed for ousting a co-tenant must be longer than the time needed for a mere stranger to establish title by adverse possession; otherwise, ‘tenants in common would be no further protected against the acquisition of a title by a cotenant, whose entry was rightful and not in its nature adverse, than by a stranger, whose entry was distinctly wrongful.’” (citing Ingalls v. Newhall, 139 Mass. 268 , 274 (1885)) In Ingalls, the Court referenced certain earlier cases, observing that they “will show [in order to work an ouster] that a much longer possession than twenty years was there shown.” Cases in which a presumption of ouster has been found to have arisen have involved time periods ranging from thirty to ninety years. Allen v. Batchelder, 17 Mass. App. Ct. 453 , 457 (1984). ( “Precisely how long a possession should be to raise a presumption of ouster depends upon many circumstances…but it is apparent from the cases that ninety years is far more than enough.”)

Thus, viewing the facts from a perspective most favorable to the plaintiffs, one might be able to demonstrate a period somewhat in excess of the twenty years required to maintain an adverse possession claim as against a stranger. Given the circumstances pertaining herein, however, this court is satisfied that the plaintiffs have failed to carry their burden of demonstrating a sufficiently lengthy period to constitute an ouster as to the defendants.

It is this court’s view, moreover, that the plaintiffs have been unable to demonstrate that their claim meets the principles enunciated supra, in Nickerson. For while Christine might demonstrate the existence of a lengthy period with neither possession nor claim of right by her siblings, at least one of them, Frank, did request and receive payment presumably derived from the rents. As to the other siblings, the evidence suggests that they believed Christine was simply managing the premises for their mother, remitting funds to her from time to time. These payments continued until “around 1990.” [Note 66] On direct examination, Christine made the following admission: [Note 67]

We didn’t live on the property. We rented both of these apartments and then turned over to her [Audrey] the money that we got monthly and made a record of it until the amount [$30,000.00] was reached.

Assuming that Christine may have had sole possession [Note 68] of the premises for a “long series of years” as specified in Nickerson, this court is satisfied, predicated upon her own testimony, that she appropriated the profits therefrom no earlier than “around 1990.” [Note 69] This leaves us with 1990 as the earliest year that one could begin the aggregation process for purposes of determining the existence of an ouster. [Note 70]

It is this court’s view, in any event, that the plaintiffs have failed to demonstrate that their possession and that of their predecessors was non-permissive, exclusive and adverse for a sufficiently long period of time. They have, as a consequence, failed to meet their heavy burden of showing that the defendant co-owners have been ousted from their legal interest in the 18 Franklin Street property.

Conclusion

In view of the foregoing, this court rules that the Deed [Note 71] from “Wellington P. Bartels and Gladys L. M. Bartels (formerly Gladys L. M. Nelson) his wife, in her own right, both of Bucksport, Maine” to “Frank A. Johnson and Audrey Johnson, his wife, in her own right, both of Boston” was intended to, and indeed did, create a tenancy in common in Frank A. Johnson and Audrey Johnson, husband and wife. Upon the death of Frank A. Johnson intestate, the defendants each inherited a one twelfth ownership interest in locus. This court rules further, that the plaintiffs have failed to demonstrate that any defendant has been ousted from his or her legal interest in the premises.

Judgment to enter accordingly.

Harry M. Grossman Justice

Dated: April 1, 2011.