In this matter the plaintiff's seek relief in either one of two ways; first, a declaratory judgment that the deed from the original plaintiffs, Olive J. Whitehead and Mary W. Luccock, to defendant, John Tracy Wiggin, dated May 23, 1966 and recorded in Barnstable Registry of Deeds book 1336, page 547 conveyed plaintiffs' interest in only one specific parcel of real estate in Yarmouth approximately eighty (80) feet wide by forty-eight hundred (4800) feet long which contains about ten acres and is situated between Higgins-Crowell Road and West Yarmouth Road or, second, in the event the Court interprets the aforesaid deed to convey any of plaintiffs' interest in other real estate located in Yarmouth, reformation of the Whitehead-Wiggin deed to limit the conveyance to this one parcel of land on the ground of fraud, misrepresentation or mutual mistake. In open court the plaintiffs waived their claim of fraud and misrepresentation, relying wholly on mutual mistake.
After the commencement of this action Plaintiff Mary W. Luccock died and her children, Marietta Luccock Phillips and Dr. Robert C. Luccock who inherited all their mother's right, title and interest to the real estate, were substituted as plaintiffs.
On the day trial was scheduled to start, November 28, 1977, defendant moved for summary judgment on the ground plaintiff Olive J. Whitehead had never authorized the institution of this suit in her name and that Attorney William E. Dwyer who drafted the complaint had not complied with Mass. R. Civ. P. 11(a) [Note 1]. As there were disputed factual matters in issue, namely whether or not the suit was authorized and whether Attorney Dwyer had sufficient knowledge to certify by his signature to the complaint that there were good grounds to support it within this meaning of rule 11(a), it was agreed that these issues would be heard and tried concurrently with the merits of the case.
Accordingly trial was held on November 28, 1977, November 29, 1977, January 6, 1978, March 21, 1978, June 13, 1978, August 1, 1978, August 16, 1978 and October 10, 1978. Thirteen witnesses testified and forty-five exhibits, incorporated herein for the purpose of any appeal, were introduced. At the close of the plaintiffs' evidence the defendant moved for a directed verdict. This motion was taken under advisement and later denied. Oral arguments were heard on October 12, 1978 and briefs were received in early December.
The deed from Olive J. Whitehead and Mary W. Luccock to the defendant John Tracy Wiggin, exhibit 1, describes the conveyed property as
any and all our right, title, and interest in and to the certain real estate situated in Yarmouth aforesaid of which Anner L. Whitehead, deceased, died seized. (Emphasis added).
The plaintiffs allege that this deed to defendant conveyed the grantors' interest in only one parcel of land in Yarmouth, namely a long narrow strip of woodland approximately 80 feet wide and 4800 feet long situated between Higgins Crowell Road and Yarmouth Road. This land is more particularly identified in exhibit 12. Defendant, under this deed, asserts an interest in real estate in Yarmouth in addition to the 80 by 4800 foot parcel, specifically, an interest in a portion of a parcel on Station Avenue (the Hyannis Cooperative Bank parcel) shown on a plan entitled "Plan of Land of Ralph Forsyth et ux in Yarmouth, Scale 1" = 80', Oct. 15, 1966, Newell B. Snow, R.L.S. Buzzards Bay, Mass." (Exhibit No. 3) and a parcel located northerly of the Penn Central Railroad right of way shown as containing 2.30 acres on Sheet 77 of the Town of Yarmouth Assessor's Maps. (Exhibit No. 4). (See defendant's answer, paragraph 6). Defendant claims that he acquired the grantors' interest in any real estate in Yarmouth acruing to them through the estate of Anner L. Whitehead.
Where the terms of a deed are unambiguous, parol evidence is inadmissible to explain or determine its construction in the absense of fraud, misrepresentation or mutual mistake. Cf., Dekofski v. Leite, 336 Mass. 127 (1957). Thus, before considering any extrinsic evidence of the parties' intention, the Court must first determine whether or not the deed is in fact ambiguous. The defendant argues that the deed clearly conveys the grantors interest in all real estate in Yarmouth in wich the grantors have an interest under the estate of Anner L. Whitehead. While the court has carefully reviewed the defendant's erudite exposition on the "parsing" of the phrases employed in the deed to describe the real estate, the Court is of the opinion that the use of the word "certain" is suggestive of a more restrictive interpretation than that urged by the defendant.
Had all the real estate wheresoever located within Yarmouth in which the plaintiffs had an interest through the estate of Anner L. Whitehead been intended to be conveyed, the use of the word "all" or "any" in place of "the certain" would have more aptly expressed such an objective. See Butrick v. Tilton, 141 Mass. 93 , 95 (1886) ("all the right we have in any estate...belonging to the deceased" [emphasis supplied] conveyed all the right the grantor had in the decedent's real estate). Thus, the Court concludes the deed is not free of ambiguity with regard to the quantity, that is, the number of parcels of real estate intended to be conveyed, and therefore extrinsic evidence is admissible in order to ascertain the parties' intentions from the language used in light of the attendant circumstances.
The Court now proceeds to consider the intention of the parties to the Whitehead-Wiggin deed. It is the objective manifestation of intention which controls; the subjective, undisclosed state of mind of the parties is not material. Cf., O'Donnell v. Clinton, 145 Mass. 461 , 463 (1888); Williston, Contracts §1535, p. 4, n. 2 (Jaeger ed. 1970).
Accordingly, the Court finds as follows:
On May 23, 1966 at about 10:30 a.m. the defendant, John Tracy Wiggin, arrived without prior appointment at the home of plaintiff, Olive J. Whitehead, in Simsbury, Connecticut. Mrs. Mary W. Luccock, Miss Whitehead's sister, happened to be visiting Miss Whitehead that day. Mr. Wiggin introduced himself and told the two sisters he wished to discuss a parcel of real estate in Yarmouth in which the sisters had an interest. The sisters had not known of their interest in any real estate on Cape Cod. Mr. Wiggins described the parcel as being a long narrow strip of woods or brushland of little value, 80 to 100 feet wide and too narrow for a building lot, of a specified length (which length Miss Whitehead does not remember) and offered to purchase it for $50. He explained to the sisters that they had acquired their interest in this parcel through their grandmother, Anner Whitehead.
Mr. Wiggin handed the sisters a deed he had had prepared, told them to arrange for a Notary Public if they decided to sell him the land, and departed for lunch about 12:00 stating he would return at 1:00 P.M. for their answer. After thier conversation with Mr. Wiggin and after reading the deed, the sisters decided they would be unable to go to the Cape to locate the property and so they decided to sell him the lot for $50. Miss Whitehead then contacted her friend, Mrs. Shaw, a Notary Public, to come to her house at 1:00 P.M. When Mr. Wiggin returned the sisters signed the deed and Mrs. Shaw took their acknowledgement.
The Court concludes that only one specific long, narrow woodlot (more fully identified by exhibit 12) was discussed, that Mr. Wiggin contracted to purchase only this one lot and that Miss Whitehead and Mrs. Luccock intended to convey only this one woodlot. Whether or not Mr. Wiggin subjectively intended to acquire title to whatever property in the town of Yarmouth the grantors had an interest in through the estate of Anner L. Whitehead is immaterial since this intention was not objectively manifested. In fact, by his use of the word "certain" in the description just the opposite would seem to be shown. Thus, the Court concludes that the defendant's intention on May 23, 1966 as manifested by his statements and course of dealing was to acquire the sisters' interest in one specific long, narrow woodlot, and consequently the Court interprets the deed to convey only this one long lot more fully identified in exhibit 12. [Note 2]
Further evidence of the defendant's intention comes from the subsequent course of action he pursued with regard to acquiring other interests in real estate devolving from the estate of Joshua Hamblin. Exhibit 12 sets forth defendant's understanding of the chain of title to the long, narrow woodlot commencing with Joshua Hamblin. According to this chain of title, outstanding interests were held by Olive J. Whitehead and Mary W. Luccock, plaintiffs in this case, the Hartford National Bank and Trust Company as trustee under the will of James P. Sprague, Yale University, and Williston Academy.
The defendant also obtained deeds from the last three named entities. These conveyances were the subject of Land Court cases #68055, 67993, 67994, actions brought by Hartford National Bank, Yale University and Williston Academy respectively to limit their conveyances to defendant Wiggin to the same long, narrow woodlot approximately 80 by 4800 feet situated between Higgins-Crowell Road and Yarmouth Road to which the plaintiffs in this action seek to limit their conveyance. While the Court is entitled to take judicial notice of these cases, see Hughes, Evidence 19 M.P.S. §84 (1961), the Court does not rely upon the evidence or findings in these cases and reaches its conclusion only on evidence introduced in the instant case. See McCarthy v. Wood Lumber Co., 219 Mass. 566 (1914). However, there was evidence presented in this case of defendant's transactions with Williston Academy to acquire Williston's interest in the long, narrow lot and with the Hartford National Bank and Trust Company to acquire the interest of the Sprague trust in the long lot. The initial communication with both Williston Academy and the Hartford Bank were close in time to the execution of the Whitehead-Wiggin deed, were related to the same subject matter, and provide additional support for the Court's conclusion already reached that the defendant intended to purchase the plaintiffs' interest in only the one narrow, long woodlot.
Accordingly, the Court finds as follows:
On May 24, 1966, the day after visiting Miss Whitehead, the defendant went to Williston Academy in Easthampton, Massachusetts, where he spoke with Mr. Babcock, the business manager and assistant treasurer, stating that he was interested in a piece of land in Yarmouth in which Williston Academy had an interest under the will of Ebenezer Hamblin. (Tr. 4-64, 65). He further stated that Yale University likewise had an interest in the land under the same will. He described this piece of land as being 80 feet wide and 4,000 feet long, of very little value, landlocked, some distance from a highway or water and covered with scrub oak and pine. (Tr. 4-66). He told Mr. Babcock he had purchased the interest of the heirs in this particular plot for $50. By this reference the Court finds Mr. Wiggin was referring to his transaction the day before with Miss Whitehead and Mrs. Luccock. Thus on May 24, 1966 as on May 23, 1966, the date of the Whitehead-Wiggin deed, Mr. Wiggin manifested an interest in and intention to acquire only one specific piece of real estate in Yarmouth, Massachusetts. Mr. Babcock advised Mr. Wiggin that he as assistant treasurer could not act on this matter and suggested he put his proposal in writing for transmittal to Williston Academy's attorney, Mr. Dwyer.
Accordingly on May 31, 1966, defendant wrote a letter to Mr. Babcock enclosing a two page memorandum addressed to the Trustees of Williston Academy entitled "In re: The real estate lying in Yarmouth, Massachusetts, formerly the property of Joshua Hamblin, dec."; a sketch of the lot in question; a diagram of the chain of title; and a copy of the will of Ebenezer R. Hamblin. Exhibit 12. The memorandum described the real estate as follows:
The real estate in question is a woodlot, quite similar to the parcels surrounding it, land of poor quality grown over with scrub pine and some scrub oak, lying about two thousand (2000) feet from the nearest paved access road and homes, about the same distance from the nearest fresh pond, and about two miles from salt water. The area is completely undeveloped. There is some question as to whether the property is legally landlocked; a power transmission line crosses the parcel from east to west, however, and the maintenance cartpath provides de facto admission. The parcel is said to measure about five (5) rods wide from east to west and about two hundred eighty- six (286) rods from north to south, or a little more than eighty (80) feet by a little less than forty-eight hundred (4800) feet. In old deeds its area is variously estimated, ranging from eight and one-half (8 1/2) to ten and one-half (10 1/2) acres. It is doubtful the property has ever been surveyed.
Again, an interest in one specific lot is revealed.
Mr. Babcock forwarded all the materials he had received from Mr. Wiggin to Williston's attorney, Mr. Dwyer.
Mr. Wiggin did subsequently acquire Williston Academy's interest in this parcel by deed dated April 20, 1971. Exhibit No. 17. The deed described the conveyed premises as:
any and all (Williston Academy's) right, title, interest, estate and claim in and to the certain woodland lying and situate in Yarmouth aforesaid and formerly the property of Anner L. Whitehead, late of Simsbury, Hartford County, Connecticut, deceased, et al. in common and undivided --
the said woodland being the same premises conveyed to the herein grantee in deeds of Olive J. Whitehead et al. (dated 23 May 1966 and recorded in the Barnstable County Registry of Deeds, Book 1336, Page 547) and the Hartford National Bank and Trust Company, Trustee (dated 19 August 1969 and recorded in the Barnstable County Registry of Deeds, Book 1448, Page 418) --
the said woodland having been once (formerly) in part the property of Ebenezer R. Hamblin, late of said Yarmouth,deceased.
For the grantor's title, reference may be had to the Estate of Ebenezer R. Hamblin, Barnstable County Probate No. 17449.
Attorney Dwyer drafted the deed but the descriptive portion was prepared by Mr. Wiggin.
The remaining details of the Williston Academy-Wiggin transaction, occurring over a period of six years, are not of any particular relevance to the question of Mr. Wiggin's intention on May 23, 1966 when he executed exhibit 1, the Whitehead-Wiggin deed, and therefore will not be reviewed or findings made in connection therewith. However, in connection with the defendant's claim under Mass. R. Civ. P. 11 that this suit is not properly instituted because Attorney Dwyer did not have sufficient knowledge to certify by his signature to the complaint that there was good ground to support the suit, subsequent events will be discussed.
On June 9, 1966 after receiving the material (exhibit no. 12) from Mr. Babcock, Mr. Dwyer contacted Attorney Hayes located in Hyannis for an opinion on the value of the land involved and sent him copies of the papers Mr. Wiggin had sent to Mr. Babcock, namely, the letter to Mr. Babcock, the memorandum, a sketch of the parcel and a diagram of the chain of title, that is, all of exhibit no. 12 except the will of Ebenezer R. Hamblin. Mr. Hayes referred the matter to his partner, Mr. John C. Creney. Mr. Creney reviewed these materials and invited Mr. Wiggin to his office on July 25, 1966. Mr. Creney asked Mr. Wiggin for any additional information on the parcel to that set out in the memorandum to the Trustees of Williston Academy. Mr. Wiggin basically confirmed the information in the memo and added that the real estate was situated between Higgins-crowell Road and West Yarmouth Road, bisected by the Mid-Cape Highway and a utility easement, and was de facto accessible by a dirt road running from Higgins-Crowell Road easterly to the parcel, which road had been constructed to gain access to the utility easement which crosses the parcel from east to west. Mr. Creney and Mr. Wiggin discussed only one parcel of land. The defendant told Mr. Creney he had acquired Miss Whitehead's and Mrs. Luccock's interest in this parcel.
Mr. Creney thereafter examined the assessor's records of the town of Yarmouth and records in the Registry of Deeds. He then reported to Mr. Dwyer by letter dated September 2, 1966, exhibit no. 11, informing Mr. Dwyer of his interview with Mr. Wiggin and of Mr. Wiggin's statement that the parcel he was seeking to acquire was located between Higgins-Crowell Road and West Yarmouth Road.
Almost five years later on March 29, 1971 Mr. Wiggin went to Mr. Dwyer's office in Northampton. Mr. Dwyer had before him copies of the descriptive materials Mr. Wiggin had sent to Mr. Babcock on May 31, 1966. They went over the description of the property. Only the one parcel described in the memorandum was under discussion and Mr. Wiggin stated he had acquired Miss Whitehead's and Mrs. Luccock's interest in this parcel. Mr. Wiggin explained that as it would be expensive to probate the estate of all persons having an interest in this parcel, he was instead purchasing the outstanding interests as he saw them, one of which was that of Williston Academy. (Tr. 3-29).
As related earlier, Williston Academy on April 20, 1971 conveyed its interest in the long lot to the defendant. A confirmatory deed to correct an error in the vote of Williston Academy was given to defendant on March 15, 1972.
At trial defense counsel questioned Miss Whitehead and Dr. Luccock with respect to the information they communicated to Attorneys Kiefer or Dwyer thereby apparently attempting to prove Attorney Dwyer did not have a basis for certifying by his signature to the complaint that "to the best of his knowledge, information, and belief this is a good ground" to support the complaint within the meaning of Rule 11. The defendant established that Miss Whitehead and Dr. Luccock did not supply Attorneys Kiefer and Dwyer with a factual basis to support all of the allegations of the complaint.
Mass. R. Civ. P. Rule 11 (a) states, in material part:
The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay.
The mere fact Mr. Dwyer did not receive all his information directly from the named plaintiffs is immaterial. As outlined in part on pages 11 and 12, Mr. Dwyer's knowledge of the defendant's course of conduct was not insubstantial. He was familiar with the representations Mr. Wiggin had made to him, to Mr. Babcock, to the Trustees of Williston Academy through the memorandum, to Mr. Creney and to personnel at Yale University and the Hartford National Bank. While the fact certain representations had been made to others would not be evidence they were made to Miss whitehead and Mrs. Luccock, Jordan v. Osgood, 109 Mass. 457 (1872), the Court is not prepared to rule that Mr. Dwyer would violate rule 11(a) by relying on these sources of information in drafting the complaint. The most that can be said is plaintiffs have not proved that Mr. Wiggin in fact made all of the representations alleged in their complaint. These failures of proof are immaterial in the Court's disposition of the case. The Court finds no violation of Mass. R. Civ. P. 11(a).
The defendant next argues the plaintiffs did not authorize the institution of this suit and therefore it is not properly before the Court.
Defense counsel asked Miss Whitehead when she first realized she was involved in a law suit against Mr. Wiggin and she responded when she received a notice to come to Mr. Kiefer's office for her deposition which was in September, 1974. (Tr. 1-55). The complaint in this action had been filed August 30, 1973. However, Miss Whitehead did testify that she showed exhibit 2, [Note 3] a letter dated March 23, 1973 from the Hartford National Bank which had informed her of her possible interest in other land in Yarmouth valued between $60,000 and $100,000 which the defendant was claiming under the deed from her, to her attorney, Mr. Kiefer, and told him to decide what to do about the matter. (Tr. 1-45). This visit to Mr. Kiefer's office was on March 26, 1973. (Tr. 3-5). On March 27, 1973 Mr. Kiefer sent Miss Whitehead a letter asking her to set forth in a letter the circumstances of Mr. Wiggin's visit and the representations made and also stated Mr. Kiefer was writing to Attorney Dwyer who was representing the Hartford National Bank in connection with the Sprague trust interest in the Yarmouth land, "to explore the possibility of him representing you." (See exhibit no. 6). Miss Whitehead responded by letter of April 1, 1973 (Exhibit No. 5) to Mr. Kiefer's letter and set forth the events of Mr. Wiggin's visit to her house in 1966. Thus, in March 1973 Miss Whitehead was apprised of Mr. Dwyer's possible representation and she did not object but acquiesced and cooperated by sending the requested information. Then, by letter dated June 2, 1973 Mr. Kiefer informed Miss Whitehead that "Attorney William Dwyer...will represent you along with the others whom he is already representing in the litigation." Exhibit No. 7. Miss Whitehead received this letter. The Court concludes Miss Whitehead authorized this suit. The fact that Miss Whitehead did not know the details of the course of action her attorney was pursuing in resolving this dispute and instead relied on her nephew, Robert Luccock, and her attorney of long standing, Mr. Kiefer, to handle the matter does not make this a sham suit as the defendant appears to argue. Cf., Surowitz v. Hilton Hotels Corporation, 383 U.S. 363 (1966).
Likewise, the Court concludes the other plaintiffs authorized the prosecution of this litigation. In the late spring or early summer of 1966, Mary W. Luccock told her son, the substituted plaintiff Robert Luccock, while he was visiting her of the defendant's visit of May 23, 1966, his offer to purchase a long, narrow strip of land in Yarmouth of no value, and her sale of the land to him. (Tr. 2-70). Dr. Luccock learned of the possible interest of his mother, Mary w. Luccock, in other Yarmouth real estate from the letter dated March 23, 1973 from the Hartford National Bank to Miss Whitehead, exhibit no. 2, which Miss Whitehead showed him on May 15, 1973. He thereupon contacted Attorney Keifer by telephone to inquire what action he should take on behalf of his mother who was then in the hospital undergoing an operation. He next, on May 16, 1973, wrote to Attorney Dwyer asking him to represent his mother and Miss Whitehead with respect to the disputed properties of the Anner Hamblin estate. (Exhibit No. 9). As soon as his mother had sufficiently recovered, he informed her of the steps he had taken, and she told him to do whatever was necessary to clear up the matter. Likewise, Marietta Phillips, the other substituted plaintiff, Dr. Luccock's sister, authorized him to take whatever action was necessary.
The defendant, at a bench conference during the course of the trial, argued that there is a conflict of interest on the part of plaintiffs' trial counsel, Desmond Sullivan, which vitiates any consent to this litigation which may have been given by the plaintiffs. Attorney Sullivan, in addition to representing the plaintiffs in this suit, also represents Massachusetts Title Insurance Company and Pioneer Title Insurance Company, two companies who have issued title insurance to property in which the defendant claims an interest under the Whitehead-Wiggin deed, the lot on Station Avenue in Yarmouth upon which is constructed a branch of the Hyannis Cooperative Bank, and who appear to be financing this litigation. Tr. 6: 117-118.
In fact, the very reason for the present action would seem to be the construction of this branch office. The bank obtained title insurance on the Station Avenue parcel from Massachusetts Title Company who reinsured the title, retaining only the risk to the first $3500.00 of loss, to the Pioneer Title Insurance Company. (Tr. 6-47). The face amount of the original title policy which was issued on March 1, 1972 was $44,000 (Tr. 6-9). When the bank had commenced construction, it received a letter from defendant J. Tracy Wiggin informing it of his claim to ownership of the parcel on which the branch was being built. Wiggin later brought a writ of entry in the Land Court against the Hyannis Cooperative Bank, a matter that is still pending. The bank about this time requested the title company to raise the total of title insurance coverage. In an effort to minimize damages and fearing that refusing to increases coverage would cause the bank to abandon the project and thus promote a total loss under the $44,000 policy, the title companies agreed to increase liability to $150,000. The insurance companies then began to look for a way out of the title problem raised by defendant Wiggin. It is obvious that they then went to the present plaintiffs here, as well as the plaintiffs in the other Land Court cases mentioned herein, namely Hartford National Bank Trustee, Yale University and Williston Academy, and made arrangements evidently to finance their cases against Wiggin in the Land Court. The title insurance companies have made a decision to deal with the present plaintiffs rather than with the defendant Wiggin herein.
The defendant argues that Attorney Sullivan's representation of the title companies conflicts with his representation of the plaintiffs and that the plaintiffs are unaware of this conflict. At this point in time, the Court perceives no conflict of interest. The title companies are apparently desirous of eliminating the defendant as a claimant to the bank property. This will be effectuated in part by a resolution of the instant litigation in the plaintiffs' favor. Hence, in the instant suit there is a congruence of interest, not a conflict. Defendant has insinuated, but not proved, that the plaintiffs have released or have agreed to release their interest in the bank parcel to Hyannis Cooperative Bank. While a potential for a conflict of interest might exist if the same attorney represented both parties to this alleged conveyance without full disclosure of such, see S.J.C. Rule 3:22. canon 5, DR5 - 105 at 359 Mass. 816 , this later and separate transaction, if any there be, is immaterial to the present suit. In any event, the plaintiffs in this suit are also represented by Attorney Dwyer who does not represent the title insurance companies but whose expenses would appear to be paid by them.
The defendant has made allegations that the present suit is barratrous or champertous. Assuming for a moment that this is so, this does not prevent the named plaintiffs from having a valid cause of action against the defendant. If the plaintiffs' knowledge of the cause of action was imparted to the plaintiffs in a barratrous manner or if a champertous agreement has been entered into for its prosecution, two subjects upon which the Court makes no findings, the Court is of the opinion that remedy for such does not lie in the present action. See S.J.C. Rule 4:01, §1.
Since the Court has interpreted the Whitehead-Wiggin deed, Exhibit No. 1, to convey only one parcel of land, a woodlot approximately 80 feet wide by 4,800 feet long with an area slightly less than ten acres located between Higgins-Crowell Road and West Yarmouth Road in Yarmouth, the Court does not reach the issue of mutual mistake.
Plaintiffs have submitted thirty requests for findings of fact. Numbers 1, 3, 5, 8, 10, 28 seek a determination that upon all the evidence certain findings are warranted, while numbers 2, 4, 6, 9, 11 states that on all the evidence certain findings are required. At this stage of proceedings, the trial level, the important consideration is the Court's actual findings, not whether a finding is warranted or required by the evidence. Puffer v. Beverly, 345 Mass. 396 , 402 (1963). With respect to numbers 1, 2, 3, 4, the Court has already found on pages 5-6 that Miss Whitehead and Mrs. Luccock intended to convey only one certain parcel of real estate and that the defendant described only one parcel of land to them. With respect to numbers 5 and 6, the Court finds that defendant told the sisters they had an interest in certain real estate in Yarmouth. Number 7 is granted. As for numbers 8 and 9 the Court finds that the single parcel of real estate described by the defendant is between Higgins-Crowell Road and West Yarmouth Road in Yarmouth, Massachusetts. Numbers 10, 12, 13 are granted. Number 11 is denied. Numbers 14, 15, 16, 17, 20, 22, 23 are concerned with findings of the Land Court in other cases. As stated on page 8, the Court has taken judicial notice of these cases, but the Court does not rely upon the evidence or findings in these cases and reaches its conclusions only on evidence introduced in the instant case. For this reason numbers 14, 15, 16, 17, 20, 21, 22 and 23 are denied.
Numbers 18, 19, 24, 25, 26, 27, 28 are granted. Numbers 29 and 30 are denied because the Court does not reach the issue of reformation for mutual mistake in view of its interpretation of the deed.
Defendant has submitted fifty-eight requests for findings of fact. Numbers 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 20, 22, 24, 25, 26, 28, 30, 31, 32, 33, 34, 35, 37, 38, 40, 41, 42, 43, 46, 47 are granted.
Numbers 16, 17, 19, 21, 23, 27, 29, 36, 39, 47, 50 are denied.
With respect to numbers 9 and 10, the Court finds that age and geographical distance were two factors contributing to plaintiffs' decision to sell the woodlot to defendant. With respect to numbers 44 and 45, the Court finds that Mr. Creney was paid a witness fee and Dr. Luccock was reinbursed for certain travel expenses, both as indicated in exhibit 45.
The Court's findings on the interpretation of the Whitehead-Wiggin deed are contained in this opinion and therefore there is not need to pass upon the syntactical matters contained in requests 51 through 58.
[Note 1] The suit was filed August 30, 1973 prior to the effective date of the new rules of Civil Procedure and tried thereafter. This action being within the Court's concurrent jurisdiction, the new rules apply to the trial of this case. Technically under Mass. R. Civ. P. 1A(1), Transitional Rule for Litigation in Progress on July 1, 1974, the standard of Rule 11(a) may not apply. However as the duty imposed by Rule 11(a) is no more burdensome than that already existing by virtue of the Massachusetts attorney's oath and the Code of Professional Responsibility, see Smith and Zobel, Rules Practice, 6 M.P.S. 279-280 (1974), no retroactive standard is being applied by considering defendant's argument under Rule 11(a).
[Note 2] Neither party has sought recission of the deed.
[Note 3] Exhibit 2 was admitted into evidence not for the truth of its contents but only to show the notice the readers of this letter received.