RICHARD A. MURRAY vs. GRACE L. CHAPMAN, THELMA L. CHAPMAN, HARRIET SMITH WHITTHAM, THELMA L. SIGOUIN, and SHIRLEY FOTI.

The plaintiff, Richard A. Murray, seeks to remove a cloud on title pursuant to the provisions of G.L. c. 240 § 6, to a certain parcel of land with the buildings thereon numbered 83-85 Bartlett Street, Charlestown, Massachusetts, being shown as Lot 76 on a plan entitled "A Plan of Salem Hill" filed with Middlesex South District Registry of Deeds at the end of Registry Book 187 (the "property"). Plaintiff claims title to the property by two deeds dated February 17, 1959, as well as by adverse possession. This action is presently before this Court on plaintiff's motion for summary judgment. For the reasons detailed herein, the motion for summary judgment is allowed in part, the only counterclaim is dismissed, and summary judgment shall enter as set forth in the judgment.

This action was brought against Grace L. Chapman, Thelma L. Chapman, Harriet M. Smith Wittham, Thelma L. Sigouin, Shirley Foti and Isa May Sigouin, and their heirs, devisees or legal representatives. [Note 1] Answers were filed only on behalf of Thelma L. Sigouin, pro se, and Shirley Foti, by her attorney, both of whom were the children of Isa May Sigouin and both of whom objected to the complaint. In addition, Thelma Sigouin filed a counterclaim seeking partition of the property and/or the sale of the property and a distribution of the proceeds.

On January 23, 1989, the plaintiff filed a motion for summary judgment on the complaint as well as on Thelma Sigouin's counterclaim. The motion was supported with an affidavit based on the personal knowledge of the plaintiff. Ms. Foti's counsel filed an affidavit in opposition to the motion for summary judgment, which he subsequently withdrew. [Note 2] No other affidavits were filed by any party.

A conference on this case was held on June 14, 1989. At that time, plaintiff's motion to file a second amended complaint, adding a claim for adverse possession, was allowed. No party has filed an answer to the second amended complaint, however, no new material averments were added by way of the second amended complaint. At that conference, the parties were also given additional time to file affidavits in opposition to the motion for summary judgment which was renewed to apply to the second amended complaint. No such affidavits were filed as required by Mass. R. Civ. P. 56 (e).

A hearing on plaintiff's motion for summary judgment was held on October 30, 1989. Under Mass. R. Civ. P. 56 (c), a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). At the conclusion of the hearing, the Court had before it the uncontested affidavit of the plaintiff Richard A. Murray, those averments of the complaint, the amended complaint and the second amended complaint which were admitted, and certain admissions made at that hearing. Based on those materials, I find that there is no genuine issue as to any material fact, and therefore, that the case is ripe for summary judgment. The following are the undisputed material facts:

1. At least as early as 1938, the property in question was owned by two brothers, Melvel A. Murray and Ernest B. Murray, as tenants in common. The plaintiff and defendants are heirs of Melvel and Ernest.

2. Melvel died intestate on September 17, 1938. Upon his death, one-sixth (1/6) of his interest in the property went to his brother Ernest, the co-owner of the property. [Note 3] Administration of Melvel's estate was not completed.

3. Ernest died intestate on February 18, 1951. Administration of Ernest's estate also was not completed.

4. In 1958, the plaintiff Richard Murray, a nephew of Ernest and Melvel, filed petitions for administration d.b.n. in the estates of both Melvel and Ernest, which were granted. On October 17, 1958, a Petition for a License to sell a one-third (1/3) interest in the property from the estate of Melvel Murray for five hundred dollars ($500) was filed and allowed. On the same date, a Petition for a License to sell a two-thirds (2/3) interest in the property from the estate of Ernest B. Murray for nine thousand five hundred dollars ($9,500) was filed and allowed.

5. It is this allocation of ownership interest (1/3-2/3) which subsequently created the cloud on title. While this allocation accurately reflected the fact that Ernest, in addition to his 50% interest as co-tenant of the property, acquired another one-sixth (1/6) interest upon Melvel's death for a total interest of two-thirds (2/3), the deeds of record showed each of the deceased's owning 50%. Consequently, of record, Melvel owned 50%, but the License only authorized the sale of a one-third (1/3) interest in the property. [Note 4]

6. The plaintiff Richard Murray was authorized pursuant to the two Licenses issued by the Probate Court to purchase the property. He did, in fact, purchase the property and acquired title pursuant to two deeds dated February 17, 1959. The plaintiff paid the required funds to the estates of Melvel and Ernest.

7. On May 9, 1959, Isa May Sigouin, through whom Thelma Sigouin and Shirley Foti claim their interest in the property, accepted the sum of one hundred forty-nine dollars and fifty-five cents ($149.55) as her share of Melvel's estate and assented to the allowance of any and all accountings the plaintiff, Richard Murray, submitted to the Probate Court. On the same day, Isa May Sigouin accepted the sum of one thousand, two hundred nine dollars and seventy-six cents ($1,209.76) as her share of Ernest's estate and assented to the allowance of any and all accountings Richard Murray submitted to the Probate Court. Isa May Sigouin was represented by counsel in these transactions.

8. Since he acquired title to the property in 1959, the plaintiff has exercised exclusive control over the property, vis-a'-vis the defendants. In 1959, the property consisted of cold water flats. Richard Murray upgraded the units at his own expense, and converted the property into a centrally heated, three unit building. The plaintiff, at his own expense, also completely renovated the units and installed kitchens and bathrooms. He has made other major capital improvements at his own expense as well. Mr. Murray has managed the property since 1959, and has collected all the rents. He has paid all real estate taxes, insurance premiums and water and sewer charges for the property, as well as all of the expenses for upkeep and maintenance of the property. None of the defendants have had any involvement with the property, or any contact with the plaintiff, until after this suit was commenced. [Note 5]

9. On June 18, 1987, Richard Murray entered into a purchase and sale agreement to sell the property. The sale could not be consummated due to the cloud on title. This action was commenced on February 25, 1988.

Based on the above undisputed material facts, I rule that the plaintiff is entitled to summary judgment on his second amended complaint as a matter of law, and that Thelma Sigouin's counterclaim must be dismissed for lack of subject matter jurisdiction.

Plaintiff has acquired title to the property by adverse possession. His continuous use, renovation and management of the property, without the permission of any co-tenants, constituted "nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years", vis-a'-vis the defendants. Ryan v. Stavros, 348 Mass. 251 , 262 (1964) and cases cited. In addition, this is not a situation where the plaintiff's actions may be construed as being consistent with the right of a co-tenant. Rather, the plaintiff's actions in completely renovating the building, managing the property to the exclusion of all the defendants, collecting all rents and paying all expenses, among other things, constitute a "series of acts [which] indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the right[s] of the other [co-tenants]." Lefavour v. Homan, 85 Mass. (3 Allen) 354, 355 (1862). It is "well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a [fact finder] may and ought to infer an actual ouster." Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456-457 (1984). In the present action, the plaintiff has used and managed the property since 1959. In view of his overt acts, the co-tenants would not have been justified in assuming that he was claiming an interest as a tenant in common, as opposed to one who was claiming a fee interest in the property.

I therefore find and rule that the plaintiff has established his title to the parcel of land with the buildings thereon numbered 83-85 Bartlett Street, Charlestown, Massachusetts, being shown as Lot 76 on a plan entitled "A Plan of Salem Hill" filed with Middlesex South District Registry of Deeds at the end of Registry Book 187, by adverse possession free from any claims of the defendants, or anyone claiming an interest by, through, or under them.

The defendant, Thelma Sigouin's counter claim for partition of the property must be dismissed because this Court lacks subject matter jurisdiction to entertain such a claim. The Probate Court has exclusive subject matter jurisdiction to hear such claims pursuant to G.L. c. 241, §2.

Judgment accordingly.