MISC 122528

October 18, 1988

Plymouth, ss.



George A. Vining and Theresa N. Vining, plaintiffs, filed with this Court on February 24, 1987 a complaint to remove a cloud on the title to land originally owned by Mrs. Vining's grandfather, James J. Lunny, late of Boston in the County of Suffolk. The plaintiffs claim to have acquired title to the property by deed and as to the defendants, by adverse possession and seek to resolve the title problems created by an outstanding interest in the children of their uncle, James Lunny. The defendants in the case who appeared are Ruth Rizzo and her two brothers, John and James Lunny, who deny that the plaintiffs and their predecessors acquired title by adverse possession, but rather allege that their use of the property in Plympton, in the County of Plymouth, has been permissive. In addition, the defendants allege that a deed executed by their mother and running to Mrs. Vining's late father and her mother was obtained by fraud.

A trial was held at the Land Court on June 21, 1988 at which seven witnesses testified and seven exhibits, many of multiple parts, were introduced into evidence. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The witnesses who testified at the trial were Natalie Lunny, widow of William Lunny; Joyce O'Connell, a friend and former tenant of Mr. and Mrs. William Lunny; Hubert Angus, former Police Chief in the Town of Plympton; the plaintiff, George A. Vining; and Robert J. Forrest, an attorney who attempted to clear the record title for Mr. and Mrs. William Lunny. The witnesses for the defendants were Ruth Rizzo and Hope Crowell, her first cousin and the daughter of one of James Lunny's children.

On all the evidence, I find and rule as follows:

1. The property in question is situated on the westerly side of Palmer Road in Plympton, in the County of Plymouth, and was owned at his death by James J. Lunny who died on May 14, 1949, a resident of Boston, Suffolk Probate No. 349114.

2. Mr. Lunny was survived by nine children and since he died intestate and a widower, each of the children inherited an undivided one-ninth interest in the property.

3. After their father's death, the Lunny children each used the Plympton property for vacations, for day trips and cooperated in making repairs thereto. Eventually William Lunny, who was the youngest of the children, decided to marry and he and his fiancee, now Natalie Lunny, in May of 1957 consulted with Bill's brother Bert to see if he and Natalie might take over the farm. Bert approved of this arrangement because he said it would be "nice to have you people living there and taking care of it and paying the bills because they [the family] would know who was there, and . . . [the Bill Lunny's] could live there and pay the taxes instead of looking other place for a place to live." The other members of the family agreed to this arrangement and after their marriage Bill and Natalie moved into the house.

4. Over the years Natalie and Bill lived in the Plympton property and made extensive repairs to the house. These improvements include plumbing, heating, wiring, repair of the walls, the floors and the roof, painting, bringing the water from the well into the house, building a new staircase and in more recent years drilling for a new well to provide an additional source of water. They paid all the real estate tax bills and other expenses of the property without assistance from family members, and they were the sole members of the family occupying the property. When Bill was transferred to Delaware, he rented the locus to third parties who paid the rent to Bill and Natalie. While his brothers assisted in the early days in making the repairs, no member of the family contributed to the expenses of the improvements or the upkeep of the property. In more recent years, a nephew assisted in making repairs and alterations to the property.

5. Shortly after the Bill Lunnys moved into the property, perhaps simultaneously therewith, the attorney representing the Estate of James Lunny, the father of Bill and his eight siblings, prepared an instrument with one or more counterparts for signature by the children. The document is not extant so its contents are unclear. It is agreed, however, that it was to be ineffective against all parties if any one or more of the family refused to sign. Bill Lunny's sister, Alice Richards, did indeed refuse to sign although it is not clear now whether this was unconditionally or only until an acre piece of the locus was set off to her.

6. After Bill Lunny returned to Massachusetts from Delaware and retired from General Foods Corporation, he served as a police officer for the Town of Plympton until he was confined to a wheel chair with rheumatoid arthritis in the late 1970's. Sometime in this time frame Bill and Natalie Lunny attempted to obtain a mortgage on the property and a question, of course, was raised as to their record ownership of the locus. Accordingly, Robert J. Forrest, Esquire, was retained to attempt to resolve the problem and, having examined the records in Suffolk Probate Court for the Estate of James Lunny, he prepared several deeds to be executed by those to whom the property devolved, or their heirs at law or devisees. Deeds were executed by all necessary members of the family as originally determined by Mr. Forrest. Apparently, however, although this issue has not been raised by the parties, only the widow of John Lunny would take his interest in the real estate under Connecticut law, but under Massachusetts law, his children also would share in his undivided one-ninth interest in the property. Accordingly, a deed was requested only from John Lunny's widow, he having died in 1975. The defendants now allege that the letter from Mr. Forrest which solicited the execution of the deed by John Lunny's widow, was false, misleading and a misrepresentation and they seek to have the deed set aside. The language of the letter (Exhibit No. 7) which was sent to all members of the family and has not been questioned by them, reads as follows:

The enclosed deed represents the final paperwork necessary to complete the administration of the estate of your late father-in-law, James J. Lunny.

As you know, Attorney Joseph Vahey began the process of administration in 1949. Although the necessary papers for the transfer by you of the Plymouth property to your brother-in-law, William, was signed in Mr. Vahey's office, the enclosed deed also needs to be signed by you in order to complete the transfer.

I would appreciate it if you would sign the enclosed deed and have your signature acknowledged by a Notary Public and return it to me in the enclosed self-addressed envelope at your earliest convenience.

Please call or write if you have any questions.

7. At one time a well-known dairy was interested in acquiring title to at least a portion of the locus, and the possibility of such a sale doubtless motivated all parties to this litigation.

8. John Lunny's widow died in November of 1985.

9. After the death of William C. Lunny, his widow, Natalie Lunny, and his only child, plaintiff Theresa N. Vining, conveyed the locus to the plaintiffs by deed dated March 27, 1986 and recorded with said Deeds in Book 6675, Page 254 (Exhibit No. 1). The deed conveyed two parcels of land to the plaintiffs, but the complaint refers only to Parcel 1 and it is only Parcel 1 to which this decision relates.

The plaintiffs argue that even if Bill and Natalie Lunny first took possession of the Plympton home with permission of the other members of the filmily, their occupation became adverse over the thirty years in which they or those claiming under them have lived in the house and used the grounds, and that, therefore, members of John Lunny's family have no claim to the locus. The defendants conversely argue that the possession of the plaintiffs remained permissive, that there was never sufficient notice to members of the family of the intention to occupy adversely, that the execution of the deeds by the family is evidence of this, that the covering letter from Mr. Forrest to Mrs. John Lunny was so false and misleading as to constitute fraud and that the deed from her should be rescinded.

The rule has long been that adverse possession between tenants in common is viewed more strictly than that between strangers because it is presumed that the occupation of the tenant is pursuant to his own rights and not as against those of his co-tenants. At first blush this would seem to apply with particular force in a situation like the present where the original occupation clearly was permissible. However, the evidence establishes that the long-continued use of the property by the Bill Lunnys, the payment of all the expenses including the real estate taxes engendered by the ownership of locus, the renting of the property while the Bill Lunnys were away and receipt of the rents therefor establish a change in occupation from permissible to adverse. Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984). See also Rickard v. Rickard, 13 Pick. 251 (1832).

The fact that the plaintiffs attempted to resolve the question amicably by requesting deeds from members then holding the outstanding record interest does not lead to a different conclusion. See Warren v. Bowdran, 156 Mass. 280 , 283-284 (1892), where the advisability of a settlement is recognized. The parties seeking to claim title under adverse possession must establish that they have occupied the property openly, notoriously and adversely with notice to all the world, for not less than twenty years. Ryan v. Stavros, 348 Mass. 251 (1964). Kershaw v. Zecchini, 342 Mass. 318 (1961). Cases such as Cowden v. Cutting, 339 Mass. 164 , 168 (1959) and Norton v. West, 8 Mass. App. Ct. 348 , 350 (1979) are inapplicable here as the factual situation is distinguishable. While the family situation complicates the issue, and its resolution is a close one, I find and rule that each of these elements has been established.

I agree with the defendants that the letter sent by counsel for Bill Lunny is less than frank and somewhat misleading in its description of the reason for the execution of the deed. However, the decedent took the deed to an attorney who was a neighbor of one of her sons for execution. While he did not act for her as an attorney in execution of the instrument, she had a full opportunity to consult him or any attorney of her choice since she was in Connecticut and counsel who had prepared the deed was in Massachusetts. She was not being importuned by family members to execute the instrument and presumably she was satisfied to do this; the distance made it less likely that there was any effective improper pressure. Since it clearly runs to Bill Lunny, it is hard to see how the Forrest letter could have misled her.

On all the evidence, therefore, I find and rule that the plaintiffs have acquired title by adverse possession as against the defendants, the heirs at law and next of kin of Ruth Lunny, and hold title to the locus free of the claims thereof.

Judgment accordingly.