MISC 116214

September 2, 1988

Bristol, ss.




These two actions brought in separate departments of the Trial Court concern not the title to the same parcels of land in Berkley, in the County of Bristol, but rather require a determination as to the legal effect on different properties of the same documents and actions taken, in most instances, many years ago by predecessors in title of the present parties.

Because the determination of these issues will decide the disputes between the various parties, an interdepartmental assignment was made in which I was designated to sit as a Superior Court Justice in the Superior Court action. It was agreed at the trial which held held on May 10 and 11, 1988 in the Land Court in Boston, at which a stenographer was appointed to record and transcribe the testimony, that the evidence and exhibits were to be considered in each case so far as relevant. All exhibits (of which there were fifty-three, some in multiple parts, together with three chalks) introduced into evidence are incorporated herein for the purpose of. any appeal. Witnesses included Duane A. Butler, Edmond St. Yves, E. Otis Dyer, a Registered Land Surveyor, Attorney Thomas B. Cantwell, and Edward B. White.

In brief, the dispute in each case revolves in part around an entry made by the Bristol County Savings Bank to foreclose a mortgage to it given by Herbert A. Dean dated May 22, 1873 and recorded with Bristol Northern District Deeds (to which all recording references herein generally refer) in Book 331, Page 33, the entry having been dated March 31, 1875 and duly recorded in Book 346, Page 477. If the entry which continued for more than three years effectively foreclosed the mortgage, then the defendant Edward B. White is entitled to prevail in the Superior Court action and the plaintiff Duane A. Butler in the Land Court case. If the entry were in effect waived by the Bank by reason of certain actions set forth in my findings, then in the Land Court case the issue becomes the validity of a tax taking made by the Town of Berkley, under which the defendants St. Yves claim, as against the plaintiff's claim based not only on a deed from the Bank, but a deed from certain of the individuals claiming under Mr. Dean.

In addition, in the Land Court case there are two parcels of land involved bifurcated by a cart path. The plaintiff does not have title to more than an undivided one-third interest in the northerly portion of the locus if he does not prevail as to the effect of the mortgagee's entry, and his title to the southerly portion of the locus would equal one-sixth plus some further as yet undefined fractional interests. If the tax taking is upheld, then the defendants' claim to a twenty (20) acre parcel prevails, i.e., the parcels lying northerly and southerly of the cart path.

In the Superior Court case the plaintiff claims an undivided one-third interest based on the deed from a descendant of Herbert A. Dean, whereas the defendant White rests his case on a deed from the Bristol County Savings Bank as well as on adverse possession.

On all the evidence I find and rule as follows:

1. Title to the land on the westerly side of Berkley Street and northerly of the cart path has been traced back to Sarah Dean, as the record owner in 1844, who acquired title from her father, Thomas Briggs, by deed dated November 14, 1826 and recorded in Book 121, Page 453 (Exhibit No. 30). Mrs. Dean then conveyed to one Thomas J. Burt by deed dated March 11, 1844 and recorded in Book 172, Page 322 (Exhibit No. 25). Thomas J. Burt died testate and devised his estate, both real and personal to his widow Lydia (Exhibit No. 23). Lydia in turn both conveyed and devised the property to Herbert A. Dean; the deed (Exhibit No. 22) raises several legal questions, but need not be considered further here since at her death she also devised the locus to Herbert A. Dean. Exhibit No. 38 is a copy of the petition by Mr. Dean for the allowance of Lydia's will, Exhibit No. 38A is the decree allowing the petition and the will, and Exhibit No. 38B is a copy of the will in question.

2. Herbert A. Dean mortgaged all of the land here in dispute to the Bristol County Savings Bank by instrument dated May 22, 1873 to which reference has hereinbefore been made (Exhibit No. 21).

3. Approximately two years later, Bristol County Savings Bank made an entry in the usual form to foreclose the mortgage (Exhibit No. 20). Then as now it was possible to foreclose a mortgage within the Commonwealth not only by the more usual method of entry and exercise of the power of sale, but by entry alone in accordance with statutory provisions in the presence of two witnesses; such entry continued without the acceptance within the statutory three year period of any monies from the mortgagor forecloses the mortgage so long as the entry is continued for three years.

4. The date of death of Herbert A. Dean does not appear in evidence, but his inventory is dated February 27, 1915 (Exhibit No. 15) and shows many parcels of real estate; no evidence was introduced, however, as to whether any of this land was subject to the Bank mortgage. The will and first codicil (Exhibit No. 15) devised the rest and residue of the real estate and personal property to his wife, Bessie H. Dean with the power to alienate, sell, mortgage or otherwise dispose of said property as she may deem necessary for her support, with the remainder to his three daughters, Fannie B. Staples, Alice L. Hall and Myra H. Dean.

5. Before Mr. Dean's death and after the expiration of the three years from the Bank's entry, the Bristol County Savings Bank executed several instruments in the usual form of partial releases as follows:

(a) an instrument dated January 23, 1894 and duly recorded in Book 515, Page 264 (Exhibit No. 16);

(b) an instrument dated July 10, 1886 and duly recorded in Book 442, Page 340 (Exhibit No. 17);

(c) an instrument dated October 5, 1885 and duly recorded in Book 435, Page 330 (Exhibit No. 18); and

(d) an instrument dated May 1, 1884 and duly recorded in Book 421, Page 186 (Exhibit No. 19).

Exhibits Nos. 16, 17, 18 and 19 also were introduced as Exhibits Nos. 46A, 47A, 48A and 49A. Each of such releases was recorded with a deed from Herbert A. Dean introduced respectively as Exhibits Nos. 46B, 47B, 48B and 49B. None of these exhibits cover land which is locus in the present two cases.

6. After the deaths of Herbert A. Dean and his wife, there were three daughters who survived, Fannie B. Staples, Alice L. Hall and Myra Dean (also known as Myra Dean Anthony). Mrs. Anthony died in 1966 leaving one daughter as her only next of kin and heir at law, Virginia D. Haskins, who holds title to the undivided one-third interest of any land which Mr. Dean owned at his death and which his wife had not sold for her support.

7. The title of Duane A. Butler, the plaintiff in the Land Court case, principally rests on a deed from Gene K. Flint, Trustee of G.K.F. Realty Trust, dated April 6, 1984 (Exhibit No. 4). The Trust acquired its title by two deeds from Charles O. Baldwin, the first dated August 20, 1979 and duly recorded in Book 1946, Page 81 (Exhibit No. 7), and the second dated September 16, 1980 and duly recorded in Book 2074, Page 89 (Exhibit No. 6). Baldwin by mesne conveyances had acquired title to this locus by deed of said Virginia D. Haskins and recorded in Book 1702, Page 1174 (Exhibit No. 9).

8. Butler's title has been buttressed by a deed from the Bristol County Savings Bank dated April 3, 1986 and recorded in Book 2967, Page 176 and by deeds from various heirs at law and next of kin of the daughters of Herbert Dean, i.e., the deed from Kathleen Sullivan dated May 18, 1985 and recorded in Book 2713, Page 28 (Exhibit No. 44A) and the deed from Noel E. Staples dated June 4, 1985 and recorded in Book 2724, Page 51 (Exhibit No. 44B).

9. The defendants in the Land Court case, the St. Yves, claim under a treasurer's deed from the Town of Berkley dated November 19, 1969 and recorded in Book 1550, Page 703 (Exhibit No. 10). The Town took a parcel of land described as "land known as T. Burt land twenty acres" which had been assessed to Myra D. Anthony by instrument dated June 1, 1967 and recorded in Book 1509, Page 82 (Exhibit No. 13) and attempted to foreclose the equity of redemption through the low value procedure. The affidavit of the Town Treasurer to the Commissioner of Corporations and Taxation and the determination of the latter official being recorded in Book 1548, Page 322 (Exhibits Nos. 11 and 12).

10. The land on the southerly side of the cart path follows a somewhat different title chain. One Thomas Briggs conveyed five acres thereof to his grandson Henry Briggs and an additional five acre parcel to his grandson Alvan Briggs. The two deeds to his grandsons were marked as Exhibit No. 29. Henry Briggs then conveyed his five acres to Alvan Briggs by deed dated December 13, 1833 and duly recorded in Book 155, Page 207 (Exhibit No. 28) with Alvan in turn then conveying the ten acre parcel to Tamerlane Burt and Thomas J. Burt by deed dated April 7, 1838 and recorded in Book 158, Page 66 (Exhibit No. 27). Tamerlane conveyed his one-half interest to Thomas by deed dated August 6, 1840 and recorded in Book 162, Page 99 (Exhibit No. 26). Thomas subsequently, by deed dated February 11, 1846 and recorded in Book 178, Page 362 (Exhibit No. 24), reconveyed an undivided one-half interest to Tamerlane. From this point, Thomas' one- half interest in the property devolves in the same manner as the ten acre parcel north of the cart path. The title to Tamerlane Burt's undivided one-half interest, however, has not been successfully solved. Tamerlane had five children, each of whom, therefore, had an undivided one-tenth interest in the premises. Title to some of these interests are shown in the evidence in this case, for example, a great-granddaughter of Tamerlane was Marion Mitchell whose Bristol Probate No. 164089, was introduced as Exhibit No. 43 inclusive of the petition, decree and will. Reference has already been made to the deeds from Noel E. Staples and Kathleen Sullivan, there being grandchildren of Phebe Tripp, a daughter of Tamerlane, by those names. Also in evidence is the petition for probate of the will of Jenny G. Abell, the decree and the will (Exhibits Nos. 42A-42C), Ms. Abell being a granddaughter of Tamerlane. It is clear, however, that all interests which comprise the undivided one-half share held in common by Tamerlane with his brother Thomas have not been accounted for, and that the parties to this litigation do not have full interest in the parcels at issue.

11. The land in dispute in the Superior Court case is situated on the easterly side of Berkley Street. The plaintiff Warner Goff claims under a deed to him from Virginia D. Haskins dated March 12, 1987 and recorded in Book 3343, Page 22 (Exhibit No. 1), whereas Edward B. White claims under a deed from Bristol County Savings Bank to him dated April 3, 1986 and duly recorded in Book 2967, Page 178 (Exhibit No. 2B), together with title acquired by adverse possession. Frederick B. White, et al, conveyed land on the easterly side of Berkley Street to the defendant White by deed dated November 23, 1962 and recorded in Book 1415, Page 153 (Exhibit No. 50); Stewart E. White, Jr. conveyed to the defendant White by deed dated November 23, 1960 and recorded in Book 1415, Page 154 (Exhibit No. 51). These deeds do not convey locus but adjoining properties owned by the parents of the grantors and grantee. However, activities conducted on these properties extended onto the properties to which both Mr. Goff and Mr. White now claim title including farming, cutting wood, grazing livestock, and selling gravel situated there. These rural activities were carried on by the parents particularly the mother of Mr. White, as well as by him personally. The defendant leased some of the property to a third party for gravel removal (Exhibit No. 52).

There is no question that in 1875, as today, a mortgage may be foreclosed by entry either in conjunction with the exercise of the power of sale or alone. E.g., Cranston v. Crane, 97 Mass. 459 (1867); Roarty v. Mitchell, 73 Mass. 243 (1856). The usual practice within the Commonwealth is to foreclose both by entry and the exercise of the power of sale so that the former after three years will cure any defects there may be in the sale itself. Authority for such procedure is found in G.L. c. 244, §§1 and 2. In §1 is found the following:

§ 1. Foreclosure by Entry or Action.

A mortgagee may, after breach of condition of a mortgage of land, recover possession of the land mortgaged by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it, or by action under this chapter; and possession so obtained, if continued peaceably for three years, shall forever foreclose the right of redemption.

The following section provides for the execution of a certificate under oath, of two competent witnesses to prove the entry and its recording at the applicable registry of deeds, whereas an alternative method might indicate entry by a marginal reference; the common method today is the recording of the certificate itself as was done in the present case. After the expiration of three years from the date of the entry, the mortgagee's title ripens into the fee which can only be terminated by the same course or procedure by which any other fee simple estate might be lost. See Boston v. Gordon, 342 Mass. 586 (1961); Beaton v. Land Court, 367 Mass. 385 (1975).

If the mortgage is foreclosed by an entry, then the debt is paid to the value of the property, title to which is foreclosed. Factually, the entry may be waived prior to the expiration of three years by the acceptance from the mortgagor or those claiming under him of payments of the secured debt. Joyner v. Lenox Savings Bank, 322 Mass. 46 (1947); Trow v. Berry, 113 Mass. 139 (1873). The difficulty in reaching a decision in this case as to whether the Bank waived any title it may have acquired by entry stems from the lapse of time from the actions sought to be analyzed and the death of those persons most familiar with the situation. The record shows that no payments were made during the three year interval, and the partial releases given by the Bank after the expiration of three years may be viewed either as conveyances of the fee title acquired by the Bank or as true partial releases. There appears to be no authority as to the effect of the execution of releases after the entry has ripened into a fee. Compare G.L. c. 244, §21; Sandler v. Green, 287 Mass. 404 (1934) (tender and redemption). However, it would seem logical that such actions be interpreted in accordance with the presumed intent of the parties. See Montuori v. Bailen, 290 Mass. 71 , 76 (1935). The mortgage discharge executed on behalf of the mortgagee may simply be a step taken by the Bank to perfect or to free its title and the Registry records from an encumbrance no longer material or it may reflect the Bank's true position that it was merely the holder of a security interest and had been paid in full.

On all the evidence I find and rule that the various actions taken by the Bank are inconsistent with its claim of ownership of the locus and accordingly, I find and rule that the parties who rely on deeds from the Bank take nothing from these conveyances. My conclusion is buttressed by the fact that the Bank records do not show the ownership of any vacant real estate, that the Bank has given no deeds of the property until very recently, and that the earlier instruments executed by it clearly were partial releases.

It also is of some importance that the individuals in question do not appear to be bona fide purchasers for value who would be hurt by this interpretation. The foregoing determination does not, however, lead to judgment in the Land Court case for the defendants St. Yves since the plaintiff also claims under a deed to a predecessor in title from Virginia D. Haskins. The question then arises as to whether the defendants' tax title is such as to cut off the interest obtained by Mr. Butler. I find and rule that the tax title is invalid since it is impossible to determine from the description of the real estate therein what land was covered thereby. The witnesses for the defendants made a convincing case at the trial that the twenty acre parcel in question comprised two separate ten acre pieces lying northerly and southerly of the cart path. Without stopping to consider the validity of assessing the two parcels together, See Shruhan v. Revere, 298 Mass. 12 (1937), the principal question to be decided is whether the description is such that any prospective purchasers would be aware from the legal advertisement that locus was the subject of the collector's foreclosure. This question is most recently discussed at length in Krueger v. Devine, 18 Mass. App. Ct. 397 , 400-402 (1984); See also Springfield v. Arcade Malleable Iron Co., 285 Mass. 154 (1934).

I find and rule that it is impossible to identify the land by reference to the legal description set forth in the assessment and the tax taking and that, accordingly, the tax taking is defective. Cf. Christian v. Mooney, 400 Mass. 753 , 761, fn. 10 (1987). Thus, in the Land Court case I find and rule that the plaintiff, as to his fractional interest, has a superior title to the defendants. In the Superior Court case, it follows that title of the defendant based on the deed from the Bank must fail. However, there was strong evidence of adverse possession by the defendant and his predecessors in the many activities engaged in by them on the locus and adjoining properties all carried on for more than twenty years. It is well settled that title to real estate may be acquired by at least twenty years' exclusive use thereof under claim of right, openly, notoriously and adverse to the world. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). Accordingly, I find and rule that adverse possession exercised by the defendant White was such that it cut off the title of those record owners claiming under Herbert A. Dean, that therefore the plaintiff Warner B. Goff who claims under Virginia D. Haskins cannot prevail and that there must be an entry of judgment for the defendant in this action.

Judgments accordingly.