ANN B. FLOYD, B. STUART HOARN and CAROLINE HOAR BAKER, as they are the TRUSTEES OF THE TOM'S NECK FARM TRUST and JEFFREY S. WHITE vs. THEODORE ROOSEVELT, IV vs. SHERMAN HOAR.

The Plaintiffs filed Miscellaneous Case No. 127625 on April 14, 1988, seeking a declaration and determination, pursuant to G.L. c. 231A and c. 240, §1, of the ownership of two parcels of land located on Chappaquiddick, in Edgartown, Massachusetts ("Locus"), known generally as a portion of "Indian Lot 5" and shown more specifically as Lots No. 5-3 and 5-4 on a plan of land entitled "Plan of Land in Edgartown, Mass.", dated October 30, 1985, duly recorded with the Dukes County Registry of Deeds [Note 1] (Exhibit No. 2). On February 6, 1989, the Defendant and Third-Party Plaintiff, Theodore Roosevelt, IV, ("Roosevelt"), filed a third-party complaint against Sherman Hoar ("Hoar"). Said complaint sets forth counts for misrepresentation, mutual mistake, failure of consideration and indemnification, all of which are alleged therein to have arisen out of Hoar's conveyance of Locus to Roosevelt in 1986, as discussed in further detail herein. Subsequently, on April 10, 1989, Hoar filed a motion to dimiss the third-party complaint, said motion being allowed by this Court on April 19, 1989 as to the counts for mutual mistake, failure of consideration and indemnification, and denied as to the count for misrepresentation.

The matter proceeded to trial on July 28, 1989, at which time the testimony and evidence were recorded, and later transcribed, by a court-appointed reporter. Three witnesses testified, thirty­two exhibits were introduced into evidence and five chalks were presented to assist the Court. All of said exhibits and chalks are incorporated herein by reference for purposes of any appeal.

Upon consideration of all of the evidence before the Court, I find the following facts to be pertinent hereto:

1. As shown on the aforesaid 1985 Plan, Locus is comprised of Lot No. 5-3, containing 3.88 acres of land, and Lot No. 5-4, containing 4.7 acres of land.

2. Title to Locus originated in 1878, upon the set-off of certain Indian Lands located on Chappaquiddick by the Commissioners appointed for such purpose by the Probate Court of Dukes County (See Exhibit No. 3). Locus, which as noted above constitutes a portion of Indian Lot 5, was at this time set off to one Ann Joab. This set off is evidenced by instruments recorded at Book 65, Pages 57, 58, 62 and 136 (See Exhibit No. 3).

3. By instrument dated July 1, 1890, recorded at Book 83, Page 448 (Exhibit No. 4), Ann Joab granted a mortgage on certain property, including Locus, to one Lucius D. Smith ("Smith"). Thereafter, on April 27, 1903, Smith assigned said mortgage to one Charles M. Pease. This assigment is reflected in an instrument recorded at Book 106, Page 262 (Exhibit No. 5). Charles M. Pease subsequently obtained title to Locus when he foreclosed the aforesaid mortgage, on May 7, 1903 (See Exhibit No. 6).

4. Charles M. Pease died intestate on May 4, 1904, leaving a widow, Selma A. Pease, and several siblings, one of whom was Tisdale S. Pease. The inventory of Charles M. Pease's estate listed "Lot 5 Indian District" as an asset, which land included Locus (See Exhibit No. 7). Thereafter, by quitclaim deed from Tisdale S. Pease, David B. Pease, Benjamin W. Pease, Parnell S. Fisher, Mary W. Worth, Christine J. Pease and Sarah F. Coffin, dated April 30, 1906, recorded at Book 115, Page 10 (Exhibit No. 8), title to Locus passed to Selma A. Pease.

5. By warranty deed dated April 28, 1915, recorded at Book 135, Page 400 (Exhibit No. 9), Tisdale S. Pease conveyed certain property to one Elva Stuart Hoar. This conveyance did not include Locus. Thereafter, by warranty deed dated July 19, 1915, recorded at Book 49, Page 321 ("Elva Stuart Hoar Deed") (Exhibit No. 10), Elva Stuart Hoar conveyed certain property, including Locus, to her mother, Annie B. Pease.

6. On September 25, 1916, Tisdale S. Pease conveyed certain property, including Locus, to Roger Sherman Hoar. This conveyance, which is at issue herein, is evidenced by deed recorded at Book 142, Page 493 ("Tisdale Pease Deed" or "Deed") (Exhibit No. 11) and reads in pertinent part as follows:

I, Tisdale S. Pease . . . grant to Roger Sherman Hoar . . ., with warranty covenants (emphasis added), the land on Chappaquiddick . . . . bounded and described as follows:

1. The Pease family woodlot on Sampson's hill.

2. The Willoughby lot. . . .

3. Also all my right, title and interest in and to the following described parcel: bounded southwesterly about fourteen hundred and forty three feet by the Indian Line; northwesterly about nine hundred and fifty seven feet by land of William Moses Jeffers; northeasterly by Cape Pogue Pond; and southeasterly by the farm of the grantee's wife. This parcel includes all of Indian Lot 5, 7 and 17 (emphasis supplied). . . .

As discussed in further detail herein, the warranty covenants noted in the first paragraph of the Deed apply only to the aforesaid "woodlot on Sampson's hill" and "the Willoughby lot".

7. By quitclaim deed dated October 27, 1917, recorded at Book 146, Page 152 (Exhibit No. 12), Selma A. (Pease) Soderlund conveyed certain property, including Locus, to Tisdale S. Pease.

8. Tisdale S. Pease died on December 15, 1931, his last will and testament naming Roger Sherman Hoar as Executor of his estate (See Exhibit No. 13). Roger Sherman Hoar subsequently obtained a license to sell real estate owned by the estate, including Locus, and thereafter, by deed dated May 5, 1933, recorded at Book 185, Page 507 (Exhibit No. 14), Locus was conveyed to Benjamin W. Pease.

9. Upon the death of Benjamin W. Pease on January 22, 1938, a life estate in Locus passed to his widow, Annie B. Pease, and a remainder interest therein passed to his daughter, Elva Stuart Hoar, all in accordance with the terms of his will (See Exhibit No. 15).

10. Annie B. Pease died intestate on February 26, 1940, leaving her two daughters, Elva Stuart Hoar and Gladys Reid, as her sole heirs (See Exhibit No. 16). In accordance with the aforesaid Elva Stuart Hoar Deed, and pursuant to the doctrine of estoppel by deed, an undivided, one-half interest in Locus vested in Elva Stuart Hoar and Gladys P. Reid at this time.

11. By quitclaim deed dated September 5, 1969, recorded at Book 279, Page 157 (Exhibit No. 17), Gladys P. Reid conveyed her interest in Locus to the Plaintiff, Jeffrey P. White. Said conveyance was later confirmed by deed dated November 28, 1969, recorded at Book 285, Page 147 (Exhibit No. 18).

12. Upon the death of Elva Stuart Hoar on April 23, 1967, her interest in Locus passed, under the terms of her will and pursuant to court decree, to the Tom's Neck Farm Trust (See Exhibits No. 19, 20 and 21).

13. As evidenced by certain recorded instruments (See Exhibit No. 32), Roger Sherman Hoar died on October 10, 1963. Pursuant to paragraph four of his will, Roger Sherman Hoar left his son, the Third-Party Defendant, Sherman Hoar, "All other land in the County of Dukes County, not specifically disposed of . . . in fee". This land would have included Locus had Roger Sherman Hoar held any interest therein at this time.

14. By deed dated November 7, 1986, recorded at Book 460, Page 697 (Exhibit No. 1), Sherman Hoar conveyed Locus, among other lands, to the Defendant and Third-Party Plaintiff, Roosevelt.

The underlying issue presented herein is whether or not the doctrine of estoppel by deed applies to the Tisdale Pease Deed.

It is the well-settled law of this Commonwealth that a deed with full covenants of warranty estops a grantor who has an imperfect title or no title at all to the real estate conveyed, from setting up against the grantee or those claiming under him any later acquired title to the property and that such later acquired title inures to the benefit of the grantee and his successors in title. Ayer v. Philadelphia and Boston Face Brick Company, 159 Mass. 84 , 87 (1893); Mt. Washington Cooperative Bank v. Benard, 289 Mass. 498 , 500 (1935); Supraner v. Citizens Savings Bank, 303 Mass. 460 , 465 (1939); Horowitz v. Peoples Savings Bank, 307 Mass. 222 , 224-225 (1940). As set forth in G.L. c. 183, §16, the "warranty covenants" which are given by a grantor to a grantee in conjunction with a conveyance by warranty deed are as follows:

In a conveyance of real estate the words "warranty covenants" shall have the force, meaning and effect of the following words: "The grantor, for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, [1] that he is lawfully seized in fee simple of the granted premises; [2] that they are free from all encumbrances; [3] that he has good right to sell and convey the same; and [4] that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons".

The general rule of construction with respect to the interpretation of deeds is that every deed is 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. See Morehardt v. Dearborn, 313 Mass. 40 , 47 (1943); Suburban Land Company, Inc. v. Town of Billerica, 314 Mass. 184 , 189 (1943); Gray v. Handy, 349 Mass. 438 , 440 (1965); Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 131 (1972); Harrison v. Marcus, 396 Mass. 424 , 429 (1985). Applying this rule to the aforesaid Tisdale Pease Deed, I find that the words "with warranty covenants", as they appear in paragraph one of said Deed, refer only to the parcels of land enumerated numbers one (1) and two (2) therein. I decline to construe such language as referring to the parcel listed in the forth paragraph, which parcel includes Locus, insofar as said paragraph, unlike those which precede it, bears no numeral before it and as it commences instead with the words "Also all my right, title and interest in and to the following described parcel ..." The law with respect to said words of grant clearly states that the use of these words will convey whatever title the grantor possesses in the subject real estate, irrespective of the quantity of such interest. Baker v. Davie, 211 Mass. 429 , 439 (1912). In addition, the use of the granting clause "All my right, title and interest" in a conveyance qualifies and limits the "warranty covenants", as defined above, so as to effectuate a transfer of only the estate then possessed by the grantor. See Blanchard v. Brooks, 29 Mass. 46 , 66-67 (1929). Moreover, as the estoppel of the grantor to assert the after-acquired title is based upon the consideration that, by his conveyance, he purported to convey some certain estate or interest, there can be no such estoppel where, as here, the conveyance undertakes to transfer merely such an estate or interest as the grantor holds. 4 H. Tiffany, Law of Real Property, § 1231 (3d ed. 1939).

In consideration of the foregoing, I find the doctrine of estoppel by deed to be inapplicable to the Tisdale Pease Deed and, accordingly, rule that the Plaintiffs hold title to Locus free of any and all rights asserted therein by the Defendant and Third-Party Plaintiff, Theodore Roosevelt, IV. Additionally, as to Roosevelt's third-party complaint against Sherman Hoar, I find insufficient evidence in the record before the Court to establish Roosevelt's claim of misrepresentation and, accordingly, dismiss the third-party complaint without prejudice.

Judgment accordingly.