STANLEY S. McMORROW, NANCY T. McMORROW and SIDNEY A. FORSYTHE vs. FRANCESCO A. MONTESANTI, JOANNE T. MONTESANTI, STEVEN ABBATE and DIANNE T. ABBATE.

This is an action for reformation of a deed from the Defendants, Francesco A. Montesanti and Joanne T. Montesanti ("Montesantis") to Mary D. Forsythe, dated April 30, 1975, recorded at Book 1678, Page 517 in the Bristol County Northern District Registry of Deeds. [Note 1] The matter was tried in the Land Court on July 28, 1988; all testimony was tape recorded and later transcribed. Six witnesses testified, ten exhibits were introduced into evidence and three chalks were presented to assist the Court. For purposes of any appeal, all exhibits are incorporated herein by reference. At trial, all parties orally assented to the dismissal of the Defendants, Steven Abbate and Dianne T. Abbate, as parties to the action, which motion was allowed by the Court. Following the close of the Plaintiffs' evidence, the Defendants moved for a directed finding. This motion was taken under advisement and is hereby denied.

On all of the evidence, I find the following facts:

1. By deed from Raymond J. and Gertrude A. Moody dated Apri l4, 1963, recorded at Book 1421, Page 11 ("Moody Deed") (Exhibit No. 1), and deed from James C. and Martha H. O'Leary dated May 13, 1963, recorded at Book 1423, Page 778, (Exhibit No. 2), the Montesantis acquired certain parcels of real estate situated on East Main Street in Norton, Massachusetts. Thereafter, the Montesantis subdivided this land into Lot A and Lot B as shown on a plan entitled "Land in Norton owned by Frank and Joanne Montesanti" dated August 1973, recorded at Plan Book 141, Page 35 ("1973 Plan") (Exhibit No. 3). Lot A consists of the land acquired from the Moodys and a portion of the land acquired from the O'Learys, said portion of land constituting the 44± foot wide parcel at issue herein.

2. In March of 1974, the Montesantis had an additional plan prepared which is recorded at Plan Book 147, Page 20 ("1974 Plan") (Exhibit No. 4). This plan indicates a division of Lot B, as shown on the 1973 Plan, into two new lots identified as "Lot B Revised" and "Lot C". This division was of no effect to the aforesaid Lot A.

3. On April 30, 1975, the Montesantis conveyed a portion of their land located on East Main Street in Norton to Mary D. Forsythe, wife of the Plaintiff, Sidney A. Forsythe. Said conveyance is evidenced by a deed recorded at Book 1678, Page 517 ("1975 Deed") (Exhibit No. 5) in which the premises are described, in part, using the same description as contained in the Moody Deed, and also containing the following language:

Being the premises conveyed to the grantors herein by deed of Raymond J. Moody, et ux., dated April 14, 1963 and recorded with Bristol County North District Registry of Deeds, Book 1421, Page 11.

Meaning to convey lot A on plan.

Despite the qualifying language, "Meaning to convey lot A on plan", the plan so referenced is not identified with particularity. Further, the metes and bounds description of the conveyed premises, as it appears in the deed, is insufficient to incorporate Lot A in its entirety. Specifically, this description omits an easterly portion of Lot A, measuring approximately 44 feet in width and about 252 feet in length (See Chalk "A").

4. At the closing, the Montesantis furnished the Forsythes with a copy of the 1973 Plan (Exhibit No. 10). Accordingly, Sidney A. Forsythe was led to believe that his wife had thereby acquired title to Lot A in its entirety. He remained unaware of any dispute as to ownership of the 44± foot wide strip of Lot A until the McMorrows raised the issue following a survey in 1986.

5. On May 28, 1976, the Montesantis conveyed "Lot B Revised" and "lot C", as shown on the 1974 Plan, to William J. and Patricia L. O'Malia ("O'Malias") (See Exhibit No. 7). Thereafter, on January 3, 1977, the O'Malias conveyed "Lot B Revised" to the Defendants, Steven and Dianne T. Abbate (See Exhibit No. 8).

6. Upon the death of Mary D. Forsythe on July 8, 1984, the following devise was made to the Plaintiff, Sidney A. Forsythe:

I give, devise and bequeath to my husband, Sidney A. Forsythe, the following to be his absolutely, if he survives me: . . . my real estate at 154 East Main Street, Norton, Massachusetts . . . . (See Exhibit No. 6.)

7. By deed dated January 10, 1986, recorded at Book 2894, Page 301 (Exhibit No. 9), Sidney A. Forsythe conveyed the property located at 154 East Main Street to the Plaintiffs, Stanley S. and Nancy T. McMorrow ("McMorrows"). Said deed contains a metes and bounds description of the property similar to that contained in the 1975 Deed, but excludes the qualifying language, "Meaning to convey lot A on plan". In any case, Sidney A. Forsythe intended to effectuate a conveyance of Lot A in its entirety.

8. Inasmuch as the McMorrows understood that, by the conveyance to them from Sidney A. Forsythe in 1986, they acquired title to 300± feet of frontage on East Main Street in Norton as shown on Chalk "A", they believed they had purchased Lot A in its entirety.

9. In 1986, the McMorrows had a survey of their land performed. The results of the survey, which appear on an unrecorded plan entitled "Land owned by Stanley S. and Nancy T. McMorrow in Norton, Massachusetts", dated September 5, 1986 (Chalk "A"), indictate that, contrary to the McMorrows' belief, the express language contained in their deed excludes a 44± foot wide strip of Lot A.

10. Following the 1986 survey, the McMorrows contacted the Montesantis and suggested that the Montesantis sign over title to the 44± foot wide portion of Lot A to them. At this time, Mrs. Montesanti expressed acquiescence to such an arrangement and took custody of certain papers intended to memorialize the same. Thereafter, however, the Montesantis informed the McMorrows that they still owned the 44± foot wide strip of Lot A and, accordingly, refused to sign the papers evidencing a conveyance of the same to the McMorrows.

The pivotal issue presented herein is whether, by the 1975 Deed, the Montesantis intended to convey only that portion of Lot A described by metes and bounds therein, or whether their intention was to convey Lot A in its entirety, in accordance with the language "Meaning to convey lot A on plan", also contained therein.

The general rule is that where there is a discrepancy between the description contained in the deed and the lines as set forth on the plan referred to therein, the plan will control. Magoun v. Lapham, 38 Mass. 135 , 137-138 (1838). This principle is rooted in the fact that a plan referred to in a deed becomes part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. Labounty v. Vickers, 352 Mass. 337 , 344 (1967) ; Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965) ; Goldstein v. Beal, 317 Mass. 750 , 755 (1945) ; Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926). To these general principles, I apply the well-settled rules that any uncertainty in the construction of a deed is to be construed against the grantor and in favor of the grantee, E. Whitehead, Inc. v. Gallo, 357 Mass. 215 , 219 (1970) ; Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823 , 827 (1984), and that deeds are to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in light of the material circumstances and pertinent facts known to them at the time it was executed, Gray v. Handy, 349 Mass. 438 , 440 (1965) ; Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 131 (1972).

In the instant matter, the Montesantis were aware in 1975 that they held record title to Lot A in its entirety. In addition, they furnished the Forsythes with a copy of the 1973 Plan, which shows Lot A , at the time of the closing. Accordingly, I find that the Montesantis intended to refer to this plan in describing the premises conveyed by the 1975 Deed. The evidence before the Court merits such a finding inasmuch as it is improbable that the Montesantis would have intentionally conveyed all of their adjoining land and retained only this 44± foot wide parcel. See Ryan v. Stavros, 348 Mass. 251 (1964). Moreover, I find that the Montesantis exercised no degree of dominion and control over said strip of Lot A between the years 1975 and 1986. In fact, the evidence indicates, to the contrary, that the Montesantis did not even become aware of any question as to the Forsythes' ownership of said strip until after the McMorrows had a survey performed in 1986. Accordingly, the Montesantis' actions with respect to the disputed 44± foot wide parcel following the 1975 conveyance to the Forsythes, coupled with the physical situation of the parcel, warrant the conclusion that they intended to convey Lot A in its entirety, as shown on the 1973 Plan. See Murphy v. Donovan, 4 Mass. App. Ct. 519 (1976); Weinrebe v. Coffman, 358 Mass. 247 (1970). I thus rule in summary that the Plaintiffs McMorrow be and hereby are entitled to reformation of the 1975 Deed by striking therefrom the language which reads "Meaning to convey lot A on plan" and inserting at the end of the description contained therein the following language:

Meaning and intending to convey and hereby conveying all of Lot A as shown on a plan recorded with the Bristol County Northern District Registry of Deeds, Plan Book 141, Page 35, however otherwise the same may be herein described.

Judgment accordingly.