John and Catherine Bie of Egremont in the County of Berkshire, the plaintiffs, brought a complaint in this Court against John William Stubbs, Jeannette I. Stubbs and Janet S. Christian [Note 1], all of said Egremont, pursuant to the provisions of G. L. c. 240, Sec. 6 to establish their title to a parcel of land containing about 36 acres situated on the northerly side of Route 23 in Egremont. The complaint alleged that Mr. and Mrs. Stubbs had conveyed a 9 acre parcel of land to Mrs. Christian, a plan of which was recorded with the deed; that the area so conveyed was also marked on the ground by 'surveyor's' pins and was within the plaintiffs' land; and that this constituted a cloud on the plaintiffs' title. The prayers of the complaint were that the deed to the plaintiffs from Arthur W. Duryea et ux dated May 29, 1961 and duly recorded [Note 2] in Book 330, page 136 (Plaintiffs' Exhibit No. 1) be adjudged "a proper, effective and valid conveyance of the premises described therein", and that the plaintiffs, as tenants by the entirety, are seized in fee simple of the premises described and hold them free from any claim of the defendants.
The defendants, Stubbs and Christian, each filed an answer and counterclaim essentially alleging (a) that any land acquired by the plaintiffs by virtue of the deed to them from the Duryeas was situated southerly of Route 23; (b) that the plaintiffs had recorded an affidavit dated July 24, 1974 and recorded with said Deeds in Book 395, page 223, which denied the validity of the defendants Stubbs' title to the premises Mr. Stubbs acquired from Arthur W. Duryea et ux by deed dated October 21, 1952 and duly recorded in Book 302, page 109 (Plaintiffs' Exhibit No. 3) and the conveyance in turn by Mr. and Mrs. Stubbs to Mrs. Christian by deed dated May 7, 1969 and duly recorded in Book 366, page 162 (Plaintiffs' Exhibit No. 4); (c) that the affidavit constituted a cloud on their title. Each answer and counterclaim prayed for a determination that Plaintiffs' Exhibit No. 3 was a proper, effective and valid conveyance of the premises therein described, that each defendant holds title to his portion of the premises conveyed by said deed in fee simple, free of any rights of the plaintiffs therein and sought an award of damages. Answers to the defendants' counterclaims in turn were filed by the plaintiffs.
Upon the defendants' request for admission of facts, the plaintiffs filed answers which effectively narrowed the disputed issues.
A trial was held in Pittsfield, in the County of Berkshire, on November 12, 1975 at which a stenographer was sworn to record the testimony. All exhibits introduced into evidence are incorporated herein for the purposes of any appeal. Witnesses at the trial were one of the common grantors, Arthur Duryea, the male plaintiff, John Bie, the male defendant, John Stubbs, and three registered land surveyors, Robert Brown, George Maynard, Jr., and Henry Granger.
The Court is without jurisdiction in the present proceedings to determine the boundaries or ownership of the land of the parties as against third persons who are not parties to the case and who have had no notice of the proceedings. The only definitive manner in which this can be done is by proceedings pursuant to G. L. c. 185 to register and confirm title. As between the plaintiffs and defendants, however, the Court may determine that the prevailing parties hold their title to the disputed area free from the claims of the other parties to this case.
The only issue in the case is whether the 1952 conveyance by Arthur W. Duryea et ux to the defendants Stubbs conveyed title to all land owned by the Duryeas north of Route 23. If it did, the provisions of the 1961 deed become immaterial since the common grantors were able only to convey to the plaintiffs title to the land still owned by them of record. G. L. c. 183, Sec. 4. See McMullen v. Porch, 286 Mass. 383 (1934). If it did not, then the question is reached as to whether the deed to the plaintiffs conveyed any land north of Route 23. If there are ambiguities in the language of the deeds, evidence as to the intention of the parties is admissible in order to resolve any doubt as to the proper interpretation of the instruments before the Court.
On all the evidence I find the following facts. In 1952 Mr. Duryea placed land on the north side of Route 23 on the market and posted a "for sale" sign on the premises. Mr. Stubbs chanced by one day when Mr. Duryea was standing on his property, negotiations were commenced and promptly concluded for the 55 acre tract of land for $2,500 and the parties immediately drove to Hillsdale, New York for the preparation of the deed. The deed describes the property in simplistic form as a rectangle bounded as follows:
"southerly by State Highway Route 23;
easterly by lands of Herbert W. McCallum and lands of Bernard Kirschner and wife;
northerly by said Kirschner lands and by land of Helen Renner and
westerly by lands of Jenssen,
containing 55 acres more or less;
and being all of that portion of the last mentioned parcel conveyed to the grantors herein by deed of Electa C. Tyrrell executor etc. for Ernest A. Tyrrell deceased dated July 26, 1950, recorded in the Southern Berkshire Registry of Deeds in Book 295, Page 59 lying north of said Route 23."
Messrs. Duryea and Stubbs at least partially walked the boundaries of the premises, and Duryea pointed out what he understood to be the land of the abutters. At no time did he indicate that he was retaining title to any land located between the premises admittedly conveyed to the defendants Stubbs and land of third parties. The area in dispute appears to contain about 36.48 acres and is shown on Plaintiffs' Exhibit No. 2 within the boundaries of which is located the parcel claimed by the defendant Christian, as appears both on said Exhibit No. 2 and Plaintiffs' Exhibit No. 5, a plan entitled "Lands of: William & Jeanete Stubbs To be conveyed to: Janet Christian Town of Egremont Berkshire Co., Mass." dated April 8, 1969 by Lane Land Surveys, Inc. and duly recorded on May 27, 1969.
After the conveyance, the Stubbs erected a small screen house on the portion of the former Duryea land as to which there is no dispute and in 1958 constructed a permanent home thereon at which time the purchase price of the premises was paid.
About three years later Mr. Duryea placed the remainder of his real estate up for sale exclusive of the area on which his home was located. He had previously conveyed other pieces from his real estate holdings, but so far as here appears, there is no question as to them.
The sale to the plaintiffs was consummated by a real estate broker and papers were passed at the office of the plaintiffs' attorney's father. At that time the male plaintiff raised a question as to the reference in the deed, Plaintiffs' Exhibit No. 1, to a taking by The Commonwealth of Massachusetts which Mr. Duryea characterized as running through his property, i. e. Route 23. The deed to the plaintiffs (Plaintiffs' Exhibit No. 1) described four parcels of land by reference to earlier deeds in the chain of title. The description is almost exactly the same as in a deed from Electa C. Tyrrell, Executor to Arthur W. Duryea, Sr. et ux dated July 16, 1950 and duly recorded in Book 295, Page 59 (Plaintiffs' Exhibit No. 6) other than for the exceptions in the plaintiffs' deed for the two conveyances out by the Duryeas, a reference to the taking and to certain easements and the exclusion of a 55 acre parcel which the plaintiffs contend was the only land which was conveyed to the defendants. The original deed to the Duryeas (Plaintiffs' Exhibit No. 6) was in the possession of the plaintiffs and the paragraph referring to the latter parcel had been crossed out in pen.
Mr. Duryea has always stated that he acquired approximately 155 acres from the Tyrrells of which about 55 acres was situated northerly of Route 23 and was conveyed to the Stubbs and about 100 acres was situated southerly of Route 23 and conveyed to the Bies. At the time of the Bie purchase, the buyer knew that he was acquiring about 100 acres for $3,250. He was told that it was all of the remaining Duryea premises other than the house lot and that it was situated southerly of the state highway. Nothing appears to have been said as to land on the other side of Route 23 nor did the male plaintiff and the broker walk along it. The purchase and sale agreement (Defendants' Exhibit No. 3) describes the property as "About 100 acres of undeveloped land. Some frontage on the Southerly side of Route 23 and some frontage on town road". The town road is south of the area in dispute and is not involved in the determination of this controversy. It was not until the plaintiffs became aware that the defendants had conveyed a piece of land on the northerly side of Route 23 to their daughter that a claim seems to have been made by the Bies to land north of the highway. Three different surveyors successively were engaged by the plaintiffs to do research on the title questions, but only Robert Brown whose office prepared Plaintiffs' Exhibit No. 2 did any surveying on the ground on the north side of the highway. The composite plan prepared by Mr. Maynard (Defendants' Exhibit No. 2) from recorded descriptions shows the disputed area in very much the same way as the Brown plan. It seems obvious that the fourth parcel in the Bie deed therein described as follows:
"Also one other tract of 75 acres as particularly described in deed from Frederick Mills to James Bunce recorded in said Registry in Book 140, Page 68, and being the same premises conveyed to Dan Bunce by deed of James H. Bunce dated February 23, 1888 and recorded in said Registry in Book 162, Page 293."
was situated on both sides of the highway and that some thirty plus acres of this was on the northerly side. It seems equally obvious that Mr. Duryea did not know the chain of his title prior to the Tyrrell deed, but that he knew he had approximately 55 acres north of the road. It had been assumed that the title source was a deed from Barlow Buckbee to Dan Bunce dated February 23, 1888 and recorded in Book 163, Page 178 which supposedly contained 55 acres, but which more probably has about 26 acres (see Defendants' Exhibit No. 2). If this area is added to that shown on the Plaintiff's Exhibit No. 2 the total actual Duryea area north of Route 23 (prior to the two conveyances to Stubbs and Bie) is not greatly in excess of 55 acres. In Brackett v. Pitcher, 296 Mass. 295 , 297 (1936), the Supreme Judicial Court has said:
"In construing a deed it is the duty of the court to ascertain the intent of the parties from the language used in the light of the surrounding circumstances."
It seems clear to me that it was the intent of the grantors, Duryea et ux, and the grantees, John and Jeannette Stubbs, that the deed to the defendants convey the entire premises owned by the grantors north of Route 23. This intent follows a well settled principle of law in Massachusetts that land of an adjoining owner may be considered as a monument. Percival v. Chase, 182 Mass. 371 , 377-78 (1903); George v. Wood, 89 Mass. 14 ( 7 Allen 14 ), 16 (1863); Flagg v. Thurston, 30 Mass. 145 ( 13 Pick. 145 ), 150 (1832). While there was some disagreement among the surveyors who testified as to the location of the land of the abutters to which reference is made in the Stubbs deed, it is apparent that Mr. Duryea believed the names given in the deed were those of the parties upon whose land his property abutted. There is sufficient evidence that either the parties so named or their predecessors or successors in title did own the abutting land or were thought to own it to lead to the conclusion that the deed conveyed all the Duryea land on the north side of the highway. If the grantors had any other intention, then they would clearly have described the 55 acres as bounded on the remaining land of the grantors rather than by the land of strangers or would have parroted the description in the Tyrrell deed to Duryea (Plaintiffs' Exhibit No. 6).
In the deed to the plaintiffs no attempt was made to tie the descriptions into the present owners of abutting lands but the descriptions in the chain of title were followed. The deed to the defendants was drafted in an entirely different style and reflects Mr. Duryea's understanding as to the parties by which his land was bounded. It is possible to construe the title reference as given in the Stubbs deed to mean that all of the land conveyed by the Tyrrell deed lying north of the highway was conveyed thereby. If it is interpreted on the contrary as being only that part of the last parcel in the Tyrrell deed which lies north of the road, it is limiting the grant. It has long been held that the title reference cannot appropriately do so. Daniels v. Citizens' Savings Institution, 127 Mass. 534 , 535 (1879); Hastings v. Hastings, 110 Mass. 280 , 283 (1872).
If the Stubbs deed were so ambiguous that constructive notice to a third party would not be afforded by its recording, then it could not be construed as broadly as I have done. However, I find that it is sufficiently definite to put any bona fide purchaser on notice as to the area which it encompasses. This resu1t is in accordance with the evidence where there was not a scintilla of proof that the petitioners bargained for any land on the north side of the road but understood that they were to acquire only land on its south side.
This brings me to a discussion as to the deposition of the real estate broker who negotiated to sell to the petitioners. At the trial the attorney for the Duryeas sought to introduce the deposition on the ground that the witness was without the Commonwealth and not subject to subpoena. I conditionally excluded the deposition but suggested the moving parties to furnish a memorandum to me relative to its admissibility. On my own motion, however, I reviewed Rule 32 of the Massachusetts Rules of Civil Procedure and found the deposition to be admissible under the provisions of (a) (3) (D). The attorney for the petitioners objected. His first objection was to the introduction of the purchase offer on the ground that it was merged in the deed and would violate the parole evidence rule by reasons already stated. I overruled this objection. The other objections to the deposition are also overruled.
On all the evidence I find and rule that Arthur W. Duryea and Hazel E. Duryea conveyed to John William Stubbs by deed dated October 21, 1952 and duly recorded in Book 302, page 109 (Plaintiffs' Exhibit No. 3) all land owned by the grantors north of Route 23; that it was the intention of the grantors that this result be accomplished by said deed and that the deed was sufficient to do so; that the deed from John William Stubbs et ux to Janet S. Christian dated May 7, 1969 and duly recorded in Book 366, page 162 (Plaintiffs' Exhibit No. 4) conveyed whatever title the grantors had in said premises free from any claim of the petitioners, John Bie and Catherine Bie, and that the petitioners have no title to any land north of Route 23 in Egremont acquired by reason of Plaintiffs' Exhibit No. 1.
The defendants filed certain requests for a finding of fact and conclusions of law. The requested findings of fact Nos. 1, 2, 3, 4, 5, 7, 9, 10, 11, 12 are hereby granted. The conclusions of law which the Duryeas have requested are dealt with in this decision. As appears from it, the requested conclusions Nos. 1, 2, 4 and 6 are granted, the others are denied. No damages are awarded.
[Note 1] Mrs. Christian, not a party originally to the proceedings, was joined as a party defendant upon motion made by the plaintiffs and allowed by the Court.
[Note 2] All references are to the Berkshire South District Registry of Deeds.