MISC 131642

June 18, 1991

Suffolk, ss.



The plaintiff Antoinette Cunning brings this complaint to establish her title and that of her siblings and their descendants to a large parcel of vacant land situated partly in Medway in the County of Norfolk and partly in Holliston in the County of Middlesex as shown on a plan entitled "Compiled Plan of Land in Holliston & Medway, Mass." dated January 21, 1990 by Paul N. Robinson Associates, Inc. The plaintiff's complaint as drafted relies both on adverse possession and on the record title. The defendants named in the case consisted of the heirs of Freeman Bullard and all other persons claiming any right, title and interest in the locus. During the proceedings Harold W. Bemis was allowed to intervene. Bemis subsequently defaulted under Mass. R. Civ. P. 33(a), and the default was later removed pursuant to Rule 60(b) (1). The defendants Katherine T. Bullard, Ann Masteriani, [Note 1] Richard E. Bullard, Robert F. Bullard and Deborah Doveno all filed answers to the complaint. An application for entry of defult pursuant to Mass. R. Civ. P. 33 (a) was filed by the plaintiff against them, but never acted upon. Of these five defendants only Richard E. Bullard failed to respond to plaintiff's interrogatories. The defendants Alice Baia, Barbara Thoresen and Helen Henneberry never filed answers, and were defaulted pursuant to Mass. R. Civ. P. 55 (a), April 2, 1990, Sullivan, C.J.

A trial was held in the Land Court on March 27 and April 2, 1991, on each day of which a stenographer was appointed to record and transcribe the testimony. In all thirty six exhibits were marked in evidence, some with multiple parts, which are incorporated herein in case of an appeal; five witnesses testified. The plaintiff testified on her own behalf; also appearing for the plaintiff were Joseph delGenio and Michael delGenio, the plaintiff's brothers, and Charles Gaffney, a Land Court title examiner. The defendants' only witness was defendant/intervenor Harold W. Bemis, although Mr. Gaffney was recalled to the stand by counsel for the heirs of Freeman Bullard.

At the trial counsel stipulated that the six children of Giuseppe delGenio are Antoinette Cunning, Loretta Panechelli, Joseph delGenio and Michael delGenio, all living and married, and Graziano delGenio and Louis delGenio, both deceased. Both decedents died leaving spouses and one of whom left issue, but which of the two had issue was not explained for the record.

On all the evidence I find and rule as follows:

1. There is no dispute that members of the delGenio family owned the two tiered parcels of land on the westerly side of Summer Street shown on the January 21, 1990 Robinson Plan (Exhibit No. 20). The controversy centers on the land lying to the west of the properties shown on Plan No. 1511 of 1951 (Exhibit No. 5) and Plan No. 1147 of 1981 (Exhibit No. 9).

2. Giuseppe delGenio acquired title from Herbert A. Buck to three parcels of land situated in Medway by deed dated September 14, 1925 and duly recorded with Norfolk Deeds in Book 1663, Page 89 to which registry certain of the recording references herein refer, those relating to land in Holliston being recorded, if at all, with Middlesex South District Registry of Deeds (Exhibit No. 1). The parcel situated on the westerly side of the town road is described as follows:

Beginning at the northeasterly corner of the premises by said town road and land now or formerly of Timothy Adams and running westerly by land now or formerly of said Timothy Adams to other land now or formerly of said Adams; thence turning and running southerly by land now or formerly of said Adams to land now or formerly of James N. Smith; thence turning and running easterly and bounded southerly by said land now or fomerly of said Smith land now or formerly of James Lovering to said town road; thence running northerly and bounded easterly by said town road to the corner first mentioned.

The deed then recited that "from the above described premises is excepted one and one-half acres which was sold to Appleton Bullard, October 1861 and recorded in Norfolk Deeds, Book 204, Page 228." The deed then continues with the description of one other parcel of land situated in the westerly part of Medway on the easterly side of the town road. Counsel for the intervenor argues that this parcel was also excepted from the conveyance, but it is clear to me from my familiarity with registry records that this parcel was included in the grant. I further would interpret this 21 acre piece as being an addition to the 72 acres to which reference is made at the very introduction of the grant where the deed recites that the land being conveyed was the same premises conveyed by Laura A. Thompson to Esther A. Monks by deed dated October 24, 1902 recorded with Norfolk Deeds, Book 934, Page 174 and bounded and described in said deed thus: "Two certain parcels of land situated in the westerly part of said Medway on both sides of a town road leading from Metcalf Station and Holliston, Mass. to Medway, containing 72 acres, more or less, together with the buildings thereon."

3. A predecessor in title of Mr. delGenio was one Sewell Partridge, a/k/a Sewall Partridge, who acquired title to three tracts of land in the westerly part of Medway from Charlotte Partridge by deed recorded in Book 149, Page 21 and from William Adams, guardian, by deed dated May 26, 1838 and recorded in Book 119, Page 179. Charlotte Partridge's deed (Exhibit No. 25) conveyed three tracts of land of which one, a 42 acre tract, was located on the westerly side of the town road and describes the parcel which the plaintiff claims is locus (and other land, indisputably of delGenio). The parcel is described as follows:

situated in said Medway containing forty-two acres and one quarter and bounded as follows, viz: beginning at the northeasterly corner thereof on said road, thence running westerly in a straight line on land of Timothy Adams 209 rods and four links to a stake and stones in a wall, thence turning and running southerly twenty three rods and four links on land of said [Malachi] Bullard and Adams to a stake and stones at land of Moses Pond, thence turning and running easterly on land of said Pond 162 rods and seventeen links to a stake and stones, thence turning and running southerly on land of said Pond and Thadeus Lovering Esquire, to stake and stones in the wall, thence turning and running easterly on land of said Thadeus Lovering as the wall stands to said road to bounds first mentioned.

4. The plaintiff contends that the figure "72" which appears in the deed to Mr. delGenio is a typographical error and should have read 92 acres which would be consistent with the deeds to Sewell Partridge. While the title examiner testified that there had been no conveyance out of a 20 acre piece to justify the change in acreage, no documentary evidence was submitted as to the registry records during this period of time.

5. A comparison of the descriptions in the Partridge and Buck deeds reveals that the former had a more complete description with distances set forth therein. However, to be certain as to the length of the northerly and southerly lines and the correct placement of the westerly line, the parcels of the adjoining owners would have to be examined together with appropriate atlases of the time frame in question.

6. A portion of the land claimed by the plaintiff is situated in Holliston. At some time the town line between Medway and Holliston was changed so it is not surprising that it is difficult to trace the title to the Holliston portion of locus. Taxes thereon have been assessed during different periods of time to members of the delGenio family and to the intervenor.

7. Even if the total acquisition by Mr. delGenio amounted to 92 acres, of which fifty acres was situated on the easterly side of the road, the conveyances among the family on the westerly side of the road would bring the total area of the tract, including the land here in controversy, to more than 42 acres.

8. After Mr. delGenio's death in the early 1950's, the land on the westerly side of the road was subdivided and through a series of sequential conveyances in 1951 and 1953 four of the delGenio children acquired title to 11.37 acres of that land, as shown on Exhibit No. 5, a plan entitled "Plan of Land in Medway, Mass." dated October 1951, recorded in 1951 as Plan No. 1511 in Record Book 3054, Page 94. The deeds representing these conveyances are collectively Exhibit No. 4 and include a deed from Louis delGenio et al to Joseph delGenio dated December 15, 1951 and recorded in Book 3054, Page 94, a deed from Louis delGenio et al to Michael delGenio et ux dated December 15, 1951 and recorded in Book 3054, Page 95, a deed from Louis delGenio to Frank Panechelli et ux dated December 15, 1951 and recorded in Book 3054, Page 96 and a deed from Louis delGenio et al to Antoinette M. Cunning dated December 15, 1951 and recorded in Book 3054, Page 97. These deeds were preceded by a deed from Estherino delGenio, the widow of Giuseppe delGenio to the six children. Subsequently, two years later, Michael delGenio acting pursuant to a probate court license conveyed the property of the interest of the ward in the parcel on the westerly side of Summer Street to Ruth P. Grandholm who conveyed three parcels on Summer Street, one to Michael delGenio et ux dated April 17, 1953 and recorded in Book 3163, Page 527, one to Antoinette M. Cunning dated April 17, 1953 and recorded in Book 3163, Page 529 and one to Frank Panechelli et al dated April 17, 1953 and recorded in Book 3163, Page 528 (Exhibit Nos. 7 and 8).

9. In 1981 Ruth P. Doyle, formerly Ruth P. Grandholm, conveyed to Antoinette M. Cunning by deed dated December 9, 1981 and recorded in Book 5958, Page 185, to Loretta Panechelli et ux by deed dated December 9, 1981 and recorded in Book 5958, Page 186, to Michael delGenio et ux by deed dated December 9, 1981 and recorded in Book 5958, Page 187 and to Joseph delGenio et ux by deed dated December 9, 1981 and recorded in Book 5958, Page 188 individual parcels of land situated in the second tier of the lots admittedly of the delGenio family and shown on a plan of land in Medway, Mass. dated August 1, 1980 by Shea Engineering and Surveying Company and recorded with Norfolk Deeds as Plan No. 1197 of 1981 in Plan Book 293 (Exhibit No. 9), the last group of deeds being Exhibit No. 10.

10. A 3.4 acre parcel of land, being the northwesterly corner of the principal parcel in Medway and title to which is in dispute, is located in Holliston. None of the parties to this action have been able to find the back title to the Holliston land. It may well be that the problem stems from a relocation of the town line and that the earlier Medway deeds carry title to the parcel in the adjoining town. The plaintiff has paid taxes on the Holliston land, but not continuously for a period of at least twenty years. The plaintiff testified that her brother Louis delGenio "gave" the parcel to her in about 1952 and that she arranged with the assessors' office in Holliston to have the tax bill sent to her, but Exhibit No. 13 consists of a combination of cancelled checks and bills only for the years 1969, 1973 to 1980 and 1982 (Exhibit No. 21). The 1973 tax bill refers to the land covered thereby as Lot 001 on sheet 2, block 1 of the Holliston assessors' maps, with an additional reference to Book 3163, Page 530. This reference is to a deed which follows the series of the 1953 deeds conveying the parcels fronting on Summer Street to the delGenio children (see Exhibit Nos. 7 and 8). The Court obtained a copy of this deed which the parties did not introduce into evidence together with a plan of land recorded with it, and it does not relate to locus. In the tax bill for fiscal 1979 reference is made to a Lot 14 on Certificate No. 139204, but records in the appropriate Registry District establish that this parcel is in Holliston, but not in the neighborhood of locus.

11. The intervenor is a long time resident of Medway, active in local government and familiar through this and through his activities in the Boy Scouts with the area of locus and the history of the parcels. His claim is based on deeds from the three daughters of the late William Ollendorf, who purchased a 22 acre tract from the Town of Medway which had been taken for the nonpayment of taxes assessed to a parcel described as "off Fisher Street" (Exhibit No. 27). The intervenor's land cannot fit into the area in question since the title chain establishes that it originally consisted primarily of land in Holliston and must be located in a different area. The Bemis claim rests on a deed from Josiah A. Bennet to Charles H. Dean conveying all his right, title and interest in 75 acres located in the "southwesterly part of Holliston" and more specifically described as follows:

Beginning at the southeasterly corner thereof on land now or formerly of one Cyrus Adams, and thence northerly on land of J. D. Leland to a corner, thence easterly, northerly and westerly on land of said Leland to land of C. Claflin, thence southerly, westerly, northerly and westerly on land of said Claflin to land of Appleton Bragg, thence in a southerly direction on land of said Bragg to a corner at land of William Claflin, thence southeasterly on land of said Claflin to land of Mr. Stevens, thence northerly on said Stevens' land to a stone bound, thence easterly to a stone bound, thence southerly on land of said Stevens to land of the heirs of Aaron Wight, thence easterly on land of said heirs and land if Cyrus Adams to the point of beginning. Being the same premises conveyed to me under the name John Q. Bennett by Ruth L. Mann, by deed dated February 15, 1892 and recorded with Middlesex So. Dist. Deeds Libro 2106, folio 470.

The deed was dated October 10, 1898 and recorded with Middlesex South District Deeds in Book 2760, Page 121. Exhibit No. 35 also consists of a deed from Henry A. Bullard to Charles H. Dean (s) with a similar description of the land conveyed thereby but giving as a title reference a deed from James F. Fiske, tax collector of Holliston and recorded with Middlesex South District Deeds in Book 2496, Page 157.

12. Charles H. Deans conveyed a 76 [Note 2] acre parcel "in the south westerly [sic] part of Holliston and northwesterly part of Medway" to Mary Burack by deed dated April 30, 1907 and recorded with the Middlesex Registry in Book 3312, Page 45 and the Norfolk Registry at "Lib. 1050, Folio 348" (Exhibit No. 29). The land is described more specifically than in earlier deeds, as follows:

Beginning at the Southwest corner thereof at land of T. B. Tracy at the Easterly abutment of wall and thence running northerly by easterly 75 rods 19 links to the corner of a wall. Thence Easterly by said wall 19 rods 19 links; thence Southerly 22 rods 8 links, thence Easterly 19 rods 13 links; thence Northerly 96 rods 11 links on a line with land of the heirs of Calvin Claflin; thence Easterly 38 rods on a line with a wall bounding said heirs to a corner; thence Southerly 40 rods on a line with wall bounding land of H. E. Bullard to a corner; thence Southwesterly 90 rods on the line with a wall and bounding land of said Bullard to stake and stones; thence Westerly 13 rods 12 links on a line with land of said Bullard to stake and stones; thence Southerly 29 rods on a line with land of said Bullard to a stake and stones at corner of land of heirs of Henry Gay, thence Westerly 38 rods 7 links on a line with land of the heirs of Aaron White to a corner at stake and stones; thence northerly about 55 rods on a line with land of one Stevens to stake and stones; Thence westerly on line of said Stevens about 20 rods, thence Southerly on line of said Stevens about 44 1/2 rods to the end of a wall. Thence continuing Southwesterly on land of said Stevens about 15 rods to stake and stones thence West by North on land of George Claflin 45 rods to the point of departure.

13. The description as set forth in the deed to an M. S. Burack does not close and as plotted by a Land Court engineer it cannot be locus.

14. M. S. Burack subsequently conveyed to Milly Binstock (presumably her sister) one half of the premises conveyed to her by Charles Deans. There was testimony that this one-half interest ultimately returned to M. S. Burack, but no documentary evidence was introduced to substantiate this.

15. The Town of Medway in 1914 took for the nonpayment of real estate taxes from Mary Burack (Exhibit No. 30) several parcels of land including one described as follows: "[a]bout twenty-two acres of land more or less, bounded and described as follows:­ north by land of Thomas Tracy; east by land of H. E. Bullard; south and west by land of said Bullard and heirs of Aaron White; known as Dean's lot." The instrument of taking is dated September 23, 1914 and recorded with Norfolk Deeds in Book 1292, Page 116 (Exhibit No. 30). There was no evidence introduced other than the instrument of taking that Mary Burack owned a 22 acre parcel in Medway.

16. Subsequently William Ollendorf purchased said 22 acre tract from the Town of Medway Tax Collector by deed dated December 23, 1916 and recorded at Norfolk deeds Book 1361, Page 232 (Exhibit No. 31), and owned it until his death in 1961, when it was devised to his widow; that title passed from Mr. to Mrs. Ollendorf [Note 3] was stipulated to by counsel. On her death the land descended to her three daughters, whether by will or intestacy is not clear. The parcel was later conveyed to Mr. and Mrs. Bemis in February, 1989.

17. Medway tax bills were introduced into evidence showing that Mr. Ollendorf was assessed for fiscal years 1989 and 1990 for a parcel 403 on Map 5 (shown on Exhibit No. 19B), fiscal 1991 found the taxes assessed to the intervenor. A notation on the plan which is Exhibit No. 19B and dated June 4, 1986 indicates the land is assessed as "unknown owner". The intervenor does not claim title by adverse possession, but he did testify to use by the Ollendorfs of the premises as a source for firewood which they allegedly brought out from a cart path off Fisher Street.

18. The northerly boundary of the locus is marked by a stone wall, but it is unclear whether the wall runs continuously between Summer Street and the westerly line of locus. It appears likely that there are some breaks in the stone wall, and that at one time the Bullards, the owners of the land to the north, erected a wire fence extending the length of the wall to keep their cows and horses on their land to the north. The wall eventually peters out as the northerly boundary turns southerly at the westerly end of locus.

19. The plaintiff and her family primarily used the locus as a source for firewood beginning in 1925 and cutting approximately six to ten cords per year during the fall and winter months. About 1940 a fire swept through the area which burned acres of this woodland from Summer Street to Holliston; thereafter, the plaintiff and those claiming under her ceased to use the locus for this purpose and rather used the parcels acquired in 1981 (also called the "finger lots") as their source of firewood. The delGenios did pasture their dry cows on the locus, in one of the three pastures outlined by the stone walls, and grew hay in the area. The plaintiff also had a garden in the vicinity, but this apparently was on land owned by the plaintiff, title to which is not in dispute. The delGenios also had.a cabin on the locus, but that has not been in use for many years, and the period when it was on locus was less than twenty years. There really is no credible evidence of use of the locus by anyone in a notorious fashion for an uninterrupted period of twenty years.

20. The plans show a cart path extending from Summer Street through the plaintiff's land and onto locus passing through openings in the several walls that define the small pastures. There is no evidence that anyone other than the plaintiff and those claiming under the delGenios ever used this cart path.

21. The Bullards contend that they used locus for hunting, dog training, cutting wood and blueberry picking, but they introduced no evidence at the trial as to this, and witnesses for the plaintiff denied it. In any event, the Bullards, introducing no evidence, failed to sustain their burden of proof as to acquisition of title to the premises.

It is very difficult to determine the adequacy of titles of the parties to this litigation. A more appropriate way of determining ownership with finality would have been for one of the disputants, either the plaintiff or the intervenor, to bring registration proceedings in which abstracts prepared by Land Court examiners, plans prepared in accordance with Land Court instructions and other evidence would have been available to the Court to determine title. However, on the evidence introduced in this miscellaneous matter I find and rule only that the plaintiff and the members of her family claiming under her father hold title to the locus free and clear of the claims of the defendants and the intervenor, but I do not hold that title is good as against the world since on the evidence before me that has not been proven. This is not an in rem proceeding, and accordingly those who have not been made parties are not bound thereby.

It seems apparent to me from a study of the instruments, a weighing of the argument that there has been a typographical error, commencing as early as 1858, in the number of acres and continued in the conveyance by Herbert Buck with the deed to this senior delGenio in correctly reading 72 rather than 92 acres, and from a study of the descriptions in the haphazard assortment of deeds introduced that the delGenios have a better claim to own locus than the other parties hereto. The intervenor's title must fail, because there is no showing that his predecessors ever held title to the 22 acres referred to in the tax title. The Bullards showed no title at all to locus. The plaintiff's claim can be sustained on the basis of record title and not that of adverse possession since the acts described do not cover the requisite period of time nor were they of sufficient notoriety. The doctrine of color of title does not apply in the present case since that is directed to relieving the claimant from having to show occupation of an entire parcel when there is a deed to him describing it even though the record title may be deficient. See Norton v. West, 8 Mass. App. Ct. 348 , 350 (1979). The Bullards in years gone by have owned large parcels of land in the vicinity of locus, but they did not establish that this included the land in question.

As stated by the Supreme Judicial Court in Powell v. Clark, 5 Mass. 355 , 357 (1809) monuments control distances as the conveyancing bar says in its shorthanded way, whereas the court set forth the governing principle as follows:

[i]n a conveyance of land by deed, in which the land is certainly bounded, it is very immaterial whether any or what quantity is expressed; for the description of the boundaries is conclusive. And when the quantity is mentioned in addition to a description of the boundaries, without any express covenant that the land contains that quantity, the whole must be considered as mere description; although the quantity mentioned is an uncertain part of the description, and must yield to the location by certain boundaries, if there is disagreement, whether the quantity mentioned is more or less than the quantity actually contained within the limits expressed.

Powell v. Clark, 5 Mass. 355 , 357 (1809).

Accordingly it does not matter what area the instruments set forth as constituting locus. It is land of the adjoining owners which constitute monuments and govern the placement of locus which is decisive. On the record before me it is difficult to determine this definitively other than as to the immediate parties to this litigation. As to them I find and rule that the plaintiff acting in behalf of her family members has title free from the claims of the other parties to this litigation.

I have not acted on requests for findings of facts and rulings of law since I have made my own. I deny the intervenor's motion to re-open the case since no new relevant evidence has been discovered.

Judgment accordingly.


[Note 1] Also spelled Mastroianni.

[Note 2] Mr. Gaffney testified that 75 acres of the conveyance were in Holliston, and only one acre was in Medway which would account for the different acreage/location references in the deeds.

[Note 3] Mrs. Ollendorf was a Bullard.