REG 38944

May 22, 1979

Suffolk, ss.

Randall, C. J.


This petition was originally filed by Robert E. Collinson on August 20, 1975, to register and confirm title under the provisions of G. L. c., 185, ยง1 to three parcels of land near the Cape Cod National Seashore Park in Provincetown, Massachusetts. Petitioner died on October 3, 1978, and this action is now being pursued on behalf of his estate.

Several parties have appeared to raise objections to the registration of the locus. The Commonwealth of Massachusetts objected to the petition pending determination of highway bounds and layouts, easement and drainage rights, and waterway interests that the state may have had in the premises. The Commonwealth subsequently withdrew its objections and appearance in this case after it and petitioner submitted a stipulation in which petitioner agreed to withdraw his claim of an easement over state highway, Route 6, and to allow the decree to be subject to the terms of Public Works Permit No. J-3290, issued to one Cora E. Floyd. Appearances were also entered by petitioner's immediate two predecessors in title, Elliot Knowlton and Warren Knowlton, the latter of whom subsequently assigned his interest to his brother, Elliot, and withdrew. The respondent alleges that Collinson acquired from the Knowltons a portion of the land his estate now seeks to register ("locus") by fraudulent means, with undue influence, and in collusion with respondent's own attorney. He also alleges that the consideration received from petitioner was inadequate.

A trial was held in the Land Court on May 9, 1979. Attorney Willard Lombard, Truro Assessor David Johnson and Francis J. Alves, a surveyor, testified for the petitioner, and Elliot Knowlton testified for the respondent. Twenty-four exhibits were introduced into evidence and are incorporated herein for purposes of any appeal. The Court finds the facts to be as follows:

Petitioner first became interested in acquiring locus in 1957. At that time the record owners of the land were the heirs of Sylvanus B. Phinney, respondent brothers Elliot and Warren Knowlton being the sole heirs to the estate. Collinson engaged the services of a local Provincetown attorney, S. Osborn Ball, who began negotiating with the attorney representing the Knowltons, Willard C. Lombard. There was some testimony indicating that Lombard had been representing the Knowlton family for several years prior to this transaction and that the father of Elliot and Warren Knowlton had also been an attorney who shared office space with the said Lombard. Evidently Lombard took over the Phinney estate from the elder Knowlton on his death. There is no evidence that Collinson ever contacted either Knowlton brother directly. A purchase and sale agreement (Exhibit 14) was executed in January, 1958, and contains the signatures of Collinson, Elliot Knowlton and spouse and Warren Knowlton and spouse. On March 17, 1959, a deed (Exhibit 3) signed by the Knowltons and their spouses was executed which conveyed from the Knowltons to Collinson three parcels of land in Provincetown. The deed contained the following provision:

Meaning to convey in these three parcels any and all land in Provincetown to which the grantors' ancester, Sylvanus B. Phinney known also as S. B. Phinney, took title to, and which neither he, nor any devisee of his, nor any statutory heir of the said Phinney has conveyed out by deed duly recorded, and wherever the land may be in Provincetown and in whatever amount.

Petitioner alleges that the total purchase price of the land was $1,336.62, plus the costs of the recording and documentary stamps of the deed. Of this, $900 was said to have gone to respondents and their attorney, and $435.62 was to be paid to the Town of Provincetown for back real estate taxes due on the land. A receipt was put into evidence showing that this latter sum was in fact paid to the town treasurer by Mr. Collinson. Also submitted into evidence were two checks signed by Willard Lombard, one each to Warren Knowlton and Elliot Knowlton for the sum of $300. On the backs of the checks are what purport to be the endorsements of the payees.

The pleadings of the respondent gave no specific examples of any illegalities in this transaction, nor did the rather ambiguous testimony, of Elliot Knowlton. Nothing in the evidence suggests that Mr. Collinson paid less than fair market value for the land. Indeed, assessors' records for the year 1959 list the three parcels as having an aggregate. value of $1,160. which is almost $200 less than what Collinson paid. Furthermore, in a letter to Attorney Lombard, (Exhibit 18) Attorney Ball stated as follows:

You seem to have provided the shot in the arm needed to get Collinson to agree to accept your quitclaim deed of the land in questions for $900, he to pay outstanding items, stamps, survey etc etc.

He is willing at this price to pay $900 for a "pig in a poke" and hope for the best. So far Mrs. Burgess has gotten put no where with title.

It thus appears that both attorneys and Mr. Collinson believed at the time that Mr. Collinson's offer was certainly fair, and perhaps even generous. The Knowltons thus were not defrauded with respect to the selling price.

Mr. Knowlton also testified that he did not realize that he was conveying all three parcels, but rather believed that he was selling only so much land as was necessary to pay his delinquent tax bill. The deed itself explicitly states, however, that all of the Knowltons' three parcels were being sold, and that this was to include all of the land of the grantors' ancestor. Furthermore, since the sale occurred nearly twenty years ago, we find it extremely unlikely that if the Knowltons sincerely believed they retained ownership to any land in Provincetown, their suspicions would not have been aroused by their failure to receive any subsequent tax bills. Thus, they were neither mistaken or misled as to what was being sold.

Finally, respondents have made vague accusations of misconduct against their attorney, Mr. Lombard. This serious accusation is entirely without foundation. Lombard's clients' Account Book, Page 28 (Exhibit 19) and the two checks included in evidence show that Lombard transferred $600 to his clients, apparently withholding the remainder as his fee. Elliot Knowlton denied that he had received or endorsed his check. (Exhibit 21). However, since the signature on the back of his check bears a remarkable resemblance to those appearing on both the purchase and sale agreement and the deed, it is more reasonable to conclude that Mr. Knowlton has a lapse in his memory of a transaction that occurred nearly twenty years ago. This is particularly true since Mr. Knowlton admitted to having a savings account in the Melrose Savings Bank in 1959 and the check was deposited at this institution as shown by the endorsement on the back thereof. In any event, the adequate consideration paid by Mr. Collinson shows clearly that he was not involved in any fraudulent scheme with the Knowltons' lawyer, who we note was selected by the Knowltons and had represented them previously. If Lombard was at fault in any way, the Knowltons' sole remedy would be against him alone. Hannaberry v. Green, 225 Mass. 201 (1916). We reiterate, however, that there is no evidence of wrongdoing on the part of Lombard in this case.

The Know1tons' allegation that they were subject to undue influence by Collinson, with whom they never spoke, is similarly rejected.

Petitioner's request to register the land described in its petition is hereby granted, subject to the stipulation entered into with the Commonwealth and to such other matters not in issue herein as are disclosed by the abstract of title.

Decree accordingly.