REG 37355

September 21, 1979

Barnstable, ss.

Sullivan, J.



In 1972 Julia Warren Tucker filed a petition to register title to a parcel of vacant land (the "locus") on MacArthur Boulevard (Route 28) in Bourne in the County of Barnstable. By leave of Court the respondents named above (or predecessors-in-interest) were allowed, in 1976, to answer late. Thereafter the same respondents, as petitioners, brought a bill of complaint against Ms. Tucker, Louise Bumpus and J. Herbert Braman and the heirs, devisees or legal representatives of the latter two persons, to establish their title to the locus pursuant to General Laws, Chapter 240, ยงยง6-10.

A trial was held in the registration case on September 5, 1978 and in the miscellaneous matter on May 2 and 3, 1979. At both of said trials a stenographer was appointed to record the testimony. All Exhibits introduced in evidence are incorporated herein by reference for the purpose of any appeal. It was agreed that the Court would consider the two cases together and that all the evidence might be weighed in reaching a decision without regard to the particular case in which it had been introduced.

At the close of the plaintiffs' case in the miscellaneous matter the defendant Tucker moved for a directed judgment "since the Plaintiffs ... have not shown the necessary element to maintain an action under Massachusetts General Laws, Chapter 240, Section 6 thru 10." This motion was taken under advisement and will be discussed later in this decision.

The land in the section of Bourne with which we are concerned is replete with title problems. The existence of several registration cases in the immediate area testifies to this. Adjoining our locus on the west is a parcel claimed in the past by the petitioners in two registration cases numbered 35528 and 35839; Charles W. Austin, the petitioner in the latter case, prevailed after a trial before Silverio, J. It was found that the locus in the abutting case comprised the Edson lot, so-called, a parcel shown as containing about 70 acres and owned by John Freeman on an 1830 plan of properties in the vicinity entitled "A Plan of Woodland belonging to the heirs of John Freeman Esq. drawn ... by Jesse Boyden" (Exhibit No. 7 in the registration case, Chalk A in the miscellaneous case). In a deed from Charles Bourne to John Freeman dated December 25, 1805 and recorded in Sandwich Book of Records, Book 1, Page 259 (Abstract in Case No. 35839, Sheet 8) the granted premises are bounded westerly by the County Road and easterly by "the burnt path"; the latter monument is shown as the westerly bound of locus on the filed plan in the Tucker case. In his decision in Case No. 35528 Judge Silverio stated, "The Edson lot at one time extended out to Megansett Way. Part of this lot was conveyed out and in 1806 came into the hands of John Freeman. The remaining part was retained by Edson." It is the remaining part which comprises our locus, and the deed out from Edson or other disposition thereof by John Edson has not been located. It may well be that the fire at the Registry of Deeds holds the answer to this riddle. In any event the Land Court Examiner, Charles H. McGrath, Esquire, now deceased, commenced his abstract with a deed from Joseph Smith to Abraham Keene dated April 17, 1858 and recorded on February 23, 1892 with Barnstable Deeds (as are all instruments referred to herein unless otherwise noted) in Book 200, Page 38 (Abstract, Sheet 4) which described the premises conveyed as follows:

Commencing at the southwesterly corner of the "Burned Path" so-called, where stands a stone post, thence northerly by the Freeman land to land of the heirs of Jabez Burgess, thence easterly by land of the said heirs to "Maganset Way" so-called, thence southerly by said "Way" to land lately owned by the "Pocasset Iron Company," thence westerly by said company's land to the first mentioned bound.

The land to the west was indeed land of Freeman and that to the north, Burgess; while the route of Megansett Way on the east may have altered somewhat with the passage of time, it would appear to be generally as placed by the "Smith" description and much of the land in the area was owned by Pocasset Iron Company.

The petitioner Julia Tucker is a member of the Keene family and with her aunt, Thelma Keene DeCosta, testified to the location of a stone monument at the southwesterly corner of locus in which the initial "K" appeared (Exhibit Nos. 10A, 10B and 10C). In 1894 the inventory in the estate of Abraham Keene (Abstract, Sheet 9) lists an Edson woodlot of 15 acres. Later in 1933 the inventory in the estate of Franklin G. Keene, Barnstable Probate No. 24139, refers to an undivided two-thirds interest in a "Five Point Lot," which it is contended was the designation placed on the lot by the Keene family in light of the convergence of roads in this general neighborhood. The title difficulty here is that deeds thereafter in the chain bound the "Five Point Lot" westerly by Megansett Way (see Abstract, Sheets 15 and 18) when properly it should have been "easterly", and the error is not corrected until 1952 (which is after all more than a quarter of a century ago). Ms. Hartell and her aunt point to a map (Exhibit No.8) prepared by the petitioner's grandmother, Betsey D. Keene, author of History of Bourne which depicts two Five Point Lots. Perhaps a more likely explanation is the inartistry of the draftsman's skill or knowledge since the other boundaries in the deeds in question are by parties unknown. The respondents made much of the reference in certain deeds in the chain of title to locus as being easterly of Clay Pond. While not due east of Clay Pond, locus is situated southeasterly thereof; in addition, Five Points Road, a possible link to the name "Five Points Lot," crosses the lot immediately north of locus (see Land Court Plan No. 36201A). I have considered the description in the instruments on which Ms. Tucker relies and find them acceptable in view of the nature of the property with which we are concerned.

The respondents in the registration case and the plaintiffs in Miscellaneous Case No. 85483 concentrated on the title records at the beginning of the nineteenth century in an attempt to prove their title. They were unable to establish the devolution of title after the acquisition of locus by John Edson nor did they offer documentary evidence or even testimony as to their relationship to those whom it was claimed preceded them as holders of the title. Accordingly, I now allow for the record the defendant's, Julia Warren Tucker's, motion for a directed judgment.

In the registration proceeding I find that locus was correctly described in the 1852 deed from Joseph Smith to Abraham Keene; that it since has been known either as the Edson lot or the Five Point Lot; that certain deeds and other instruments in the chain of title have incorrectly described locus; that title difficulties in the area make the errors understandable; that members of the Keene family have claimed to own the locus as holders of the record title for over twenty years and have been assessed as owners thereof for at least as long; and that title may be registered in the petitioner subject to such matters as are shown by the abstract, the filed plan and the papers.

Decree accordingly.