PALMER DAVENPORT and DeWITT DAVENPORT, TRUSTEES OF DAVENPORT REALTY TRUST vs. HEBRON ASSOCIATES, INC.

By complaint filed May 19, 1986, the Plaintiffs, Palmer Davenport and DeWitt Davenport, as Trustees of Davenport Realty Trust ("Plaintiffs"), seek to register title, pursuant to G.L. c. 185, § 1, to a parcel of land located in Yarmouth, Massachusetts, consisting of approximately 24.506 acres ("Locus"), as shown on Land Court Plan No. 41948-A, entitled "Plan of Land in Yarmouth, Mass.", dated December 24, 1985, by Nickerson & Berger, Inc. (Exhibit No. 6). Following the issuance of notice to all potential claimants in the matter, including the Attorney General for the Commonwealth of Massachusetts, [Note 1] the Defendant Hebron Associates, Inc. ("Hebron"), on November 13, 1987, filed an objection to the Plaintiffs' registration complaint. The matter was referred to Land Court Title Examiner, William E. Crowell, Jr., Esq. ("Examiner"), on May 30, 1986. On January 28, 1987, an Abstract of Title to Locus was filed with the Court ("Abstract") (Exhibit No. 1). In the Abstract, the Examiner reported that, in his opinion, the Plaintiffs have "suitable title for registration purposes."

This case was tried on April 6, and May 10, 1989, at which times the proceedings were recorded by a court appointed reporter. Four (4) witnesses testified, twenty-four (24) exhibits were introduced into evidence, and two (2) chalks were furnished to assist the Court, one of which later became an exhibit. All of the exhibts and the chalk are incorporated herein by reference for the purpose of an appeal. The Plaintiffs submitted a Brief on October 27, 1989 and Hebron submitted a Request for Findings of Facts on October 28, 1989. After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. As shown on Land Court Plan No. 41948-A, Locus is a six­sided parcel consisting of approximately 24.506 acres of land. It is located in Yarmouth, Massachusetts and bounded on its eastern side by Camp Street and on its western side by the Barnstable- Yarmouth Town Line ("the Town Line").

2. The Plaintiffs allege that Locus was originally comprised of three parcels: a fourteen acre parcel, a six and one-half acre parcel, and a seven and one-quarter acre parcel.

3. The Plaintiffs' claim to the fourteen acre parcel begins with a deed from Lucretia and Joseph Hallet dated June, 21, 1849 and recorded at Book 48, Page 431 at the Barnstable Registry of Deeds [Note 2] (Exhibit No. 4) which conveys the following land:

A certain tract of pine woodland, lying in Yarmouth aforesaid, and is bounded Northerly by John B. Baxter and others, Easterly by a road, Southerly, by Jacob P. Hallet and Westerly by, Barnstable town line and contains fourteen acres be the same more or less.

4. The Plaintiffs' claim to the six and one-half acre parcel begins with a deed from Daniel Baxter to Seth Hallet dated May 10, 1826 and recorded at Book 3, Page 99R (Exhibit No.7) which conveys the following land:

. . . a piece of woodland that (was) bought of Peter Thacher November 1771 being part of the twelfth lot of the third Division common land in the Town of Yarmouth bounded Northerly by Joseph Hallet, East & South by Seth Hallet & West by the Barnstable line and contains seven acres and one hundred and five rods more or less. . . .

5. The Plaintiffs' claim to the seven and one-quarter acre parcel begins with a deed from Seth Hallet to Warren Hinckley dated February 17, 1837 and recorded at Book 23, Page 97L (Exhibit No. 8) which conveys the following land:

. . . (bounded northerly by a previously described parcel) and East by Alex Baxter, Seth Hallet & John Baxter, South by a piece hereafter described, West by the roads & containing seven & one quarter acres more or less & is the Piece I purchased of Judith Hallet & others.

6. The Plaintiffs' claim to Locus is based on a deed from John C. Creney, Vernon D. Whynott and Iyanough Corporation and others to the Plaintiffs dated June 10, 1985 and recorded at Book 4591, Page 330 (Exhibit No. 1, Sheet 87).

7. Hebron claims title to a portion of Locus, consisting of a triangle containing approximately two (2) acres in the northeastern corner.

Both the Plaintiffs and Defendant have presented varying amounts of evidence and as to the location and ownership of certain parcels of land. In reviewing the evidence and chalk the Court is unable to locate any of the parcels of either party sufficiently to establish, or in the case of the Defendant, to defeat, a claim of title "proper for registration". It appears that of the three parcels the Plaintiffs claim constitute Locus, they do appear to have good title to the fourteen acre parcel, which parcel appears to be in the area of Locus. If this parcel could be sufficiently located, which I find it is not, it is quite possible that the title would be proper for registration. The Plaintiffs may have title to the six and one-half acre parcel, but the evidence is not sufficient either as to title or location to qualify this parcel for registration. As to the seven and one-quarter acre parcel, I find the evidence insufficient to establish title in the Plaintiffs or location of the parcel.

If the allegations made by the Plaintiffs in their Complaint and at trial through testimony and exhibits were true, they would have registrable title to Locus. However, the evidence presented by Plaintiffs is not sufficiently persuasive to establish registerable title and could lead the Court to other plausible conclusions concerning title to and location of Locus.

Accordingly on the basis of the evidence presented, this case is dismissed.

Judgment accordingly.